text:
    BLISS v. SAN ANTONIO SCHOOL BOARD et al.
    (No. 5345.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.
    Rehearing Denied March 3, 1915.)
    1. Tbial <&wkey;403 — Findings and Conclusions — Delay in Filing.
    The findings of fact and conclusions of law filed by the trial court more than 10 days after the adjournment of the term are a nullity and cannot be considered on appeal.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 954r-956; Dec. Dig. <&wkey;>403.]
    2. Aepeal and Ebbob <&wkey;544, 719 — Questions Review able — Necessity oe Bill oe Exceptions.
    An appellant, who failed to secure a bill of exceptions and assign error upon the failure of court to file findings of fact and conclusions of law within the time prescribed, is not entitled to a reversal for such failure by the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479, 2968-2982, 3490; Dee. Dig. <&wkey;544, 719.]
    3. Appeal and Ebbob &wkey;>742 — Recobd — Facts.
    Where no questions arise on the pleadings, and there is no fundamental error, but all the assignments relate to the conclusions of law and are dependent upon the facts, the judgment must be affirmed if there is no statement of facts or finding of facts in the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 300; Dec. Dig. <®=^742.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Don A. Bliss against the San Antonio School Board and others. Judgment for the defendants, and plaintiff appeals.
    Affirmed.
    Don A. Bliss, of San Antonio, in pro. per. Arnold, Cozby & Peyton, of San Antonio, for appellees.

       Writ o£ error pending in Supreme Court.

   MOURSUND, J.

On February 13, 1913, the board of trustees of the San Antonio independent school district directed the president and secretary of said board to sign and issue a warrant on the depository of said district for $200, payable to Charles J. Lukin,, superintendent of the public free schools of said district, for the purpose of defraying said Lukin’s expenses in attending the meeting of the National Educational Association, to be thereafter held in the city of Philadelphia. Appellant, on February 15, 1913, brought this suit for the purpose of procuring an injunction against the president and secretary of said school board, restraining them from signing and delivering said warrant to the said Lukin, and restraining the said Lukin from having said warrant paid out of the public free school fund belonging to the district.

It was alleged in the petition that the plaintiff therein was one of the members of the school board, also a taxpayer in said school district, and had a daughter and grandson residing with him, both of whom were within the scholastic age; that the Legislature enacted a special law, approved March 18, 1909, incorporating the San Antonio independent school district, and giving its trustees the power to manage and control the public free schools within the district, also the power to make contracts and to be a party to actions in court, authorizing it to acquire, imocure, or borrow money to purchase grounds and erect, furnish, and equip school buildings, and to determine the amount of money required therefor, as well as the necessity for issuance of bonds therefor, to issue bonds after an election has resulted in favor thereof, to determine the amount of taxes within the limits voted at any time theretofore by the voters-of said district for school purposes that should be necessary for the maintenance of the public free schools of said district for the current fiscal year of said city, to pay the probable costs of the sale of the bonds, the installments of interest thereon, and provide a sinking fund. It was further alleged that, by the terms of said act, such tax is required to be levied against all the taxable property and values in the district and against the owners thereof, and is made a lien against such property; that, in the exercise of the powers given, elections have been held resulting in the levy of taxes for the maintenance of the schools and the issuance of bonds, and taxes levied and collected for the scholastic year of 1911-12; that the total assessed valuation of the taxable property in the district was $82,000,-000, and the tax rate so levied was two cents on the $100 valuation to pay interest and sinking fund of the bonds and 86 cents on the $100 valuation for maintenance purposes; that said district received from the state and county as its pro rata of the available school fund $6.85 for each of 21,011 children, which money is kept in the depository with the money raised by taxation: that the amount of money remaining in the depository, together with the taxes that may be collected during the current year, will be barely sufficient, if economically handled, to pay the expenses of maintaining the public free schools in said district for the current year. The action of the board in voting to pay the expenses of said Lukin to attend the National Educational Association and ordering warrant to be issued was then fully pleaded, and it was alleged that the board was without power to make such expenditure.

On March 18, 1913, defendants answered with a general denial, except as to such matters as should be admitted in the answer; a special answer admitting that the expenditure was regularly voted at a meeting of the board, and that the board possesses all of the powers, privileges, and duties set forth in the petition; but alleging that, in addition, the board was empowered to elect a superintendent of schools, such teachers, employés, agents, and servants that may be deemed necessary for the transaction of the business of said board and the carrying on of said schools, and to fix the salaries and compensation thereof, and may abolish or re-establish any position and employment created by said board, that by said provision, and the other provisions of the act, the board was given the power and discretion to do and perform all things necessary for the maintenance and carrying on of the public free schools of the district, that it was necessary for the proper interest, advancement, and maintenance of the school interests that the board should know of the best methods of teaching and equipping schools, ventilating buildings, and such other information as is in keeping with the progress of the times and for the welfare of the children. Then, at great length, the answer contained allegations concerning the value of the information to be obtained by sending the superintendent to such meeting, the necessity of procuring such information on account of the large number of school children in the district, the value and number of school buildings, the vast sums expended annually, it being alleged in this connection that about 350 teachers are employed, 39 janitors, 4 or 5 carpenters, a business agent, a superintendent, and many laborers. It was further alleged that the members of the board are not teachers, but business men, and that it was impractical for them to attend such meeting, and that it was wise and prudent to send an agent in the person of their superintendent. The fact that there was ample money on hand to make the expenditure without shortening the term of the schools or in any way impairing their efficiency was fully set out.

The trial was before the court, and judgment rendered denying plaintiff all relief and taxing all costs against him. The court was requested by plaintiff to file findings of fact and conclusions of law. The court adjourned on April 4, 1914. The findings of fact were not filed until May 19, 1914, and the conclusions of law on May 20, 1914. No statement of facts was filed.

The findings of fact and conclusions of law filed more than 10 days after the court adjourned for the term are a nullity and cannot be considered by us. Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Emery v. Barfield, 156 S. W. 313; Bradford v. Knowles, 11 Tex. Civ. App. 572, 33 S. W. 149; State ex rel. Sutherland v. Pease, 147 S. W. 649; Guadalupe County v. Poth, 153 S. W. 919; M., K. & T. Ry. v. Cameron Co., 136 S. W. 74.

Appellant, having failed to secure a bill of exceptions and assign error upon such failure of the court to file findings of fact and conclusions of law within the time prescribed by' law, is not entitled to a reversal on account of being deprived thereof. Velasco Fish & Oyster Co. v. Texas Co., 148 S. W. 1185; Fitzhugh v. Franco Texas Land Co., 81 Tex. 307, 16 S. W. 1078; Landa v. Heermann, 85 Tex. 4, 19 S. W. 885.

No questions arising upon the pleadings are raised in appellant’s brief, and all assignments relate to conclusions of law which appellant requested the court to make, and the correctness of the court’s judgment. All of these matters are dependent upon the facts, and, there being no statement of facts nor any findings of fact such as the law recognizes, it follows that the judgment must be affirmed. Beaumont Improvement Company v. Carr, 32 Tex. Civ. App. 615, 75 S. W. 327. We find no fundamental error in the record.

We conclude that the judgment of affirmance heretofore entered should not he set aside, and therefore overrule appellant’s motion for rehearing; but our former opinion is withdrawn, and this opinion will be filed as the opinion of the court in this case.

CARL, J., did not sit in this case.
      (&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    GULLY v. GULLY.
    (No. 1403.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1915.
    Rehearing Denied March 4, 1915.)
    Divorce <s&wkey;308 — Maintenance oe Children —Judgment in Personam — Jurisdiction.
    The district court, authorized by Rev. St. 1911, art. 4634, to divide community property of divorced parties with reference to their condition and the support of the children, and authorized by article 4641 to award the custody of children, had no 'jurisdiction to make an incidental decree in personam against a parent for payment of a monthly stipend for the future support of his children and to make it a charge against the community property set aside to such parent.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 801, 802; Dec. Dig. <&wkey;>308.]
    Error from District Court, Panola County; W. C. Buford, Judge.
    After final decree in divorce proceedings between herself and T. R. Gully, Mrs. M. E. Gully moves for an order of sale of defendant’s property. Judgment for plaintiff, and defendant brings error.
    Reversed, and suit dismissed.
    On January 16, 1914, Mrs. M. E. Gully filed in the district court a motion averring that in a final decree entered April 4, 1913, in divorce proceedings between herself and husband, she was awarded the custody of the seven minor children of the marriage, and the award of custody expressly provided that the future support, maintenance, and education of the children should be jointly provided and paid for by both their mother and father, and the amount thereof was fixed at $100 per month, payable $50 each on the 4th day of every month. The division of the estate of the husband and wife, it is averred, was ordered -in the decree, arid the husband received a large and valuable property in separate and community realty, and the allowances payable to the children were made a charge and lien against the community property respectively set aside to each of their parents. After the decree, and after taking possession of the property set aside to him, the husband, it is averred, collected and received rents and revenues therefrom, but failed and refused after demand to pay his proportion of the allowance or to contribute any sum to the support and maintenance of the children. It is further averred that the mother was required to entirely support the children out of her own means, and that she has expended for their maintenance the allowance of $100 per month from the date of the decree of custody to the filing of this petition, amounting to the total sum of $1,-200. The prayer of the petition was for citation on the defendant, and for an. order of sale against the specific property set aside to the defendant in the decree of Axiril 4, 1913, as his part of the community property, to satisfy the amount unpaid upon'the allowance by the father amounting to $600, and further for an order providing in terms for an order of sale of the defendant’s part of the community property set aside to him in the decree of April 4, 1913, as the defendant may refuse to pay the fixed allowance provided against him in the decree. The defendant in the motion was served in person with a citation on January 16, 1914. At the ensuing term of the court, and on March 31, 1914, the court heard the case and entered a judgment thereon. After stating the appearance of the parties, the judgment recites that the court finds that the defendant owes to the plaintiff the sum of $600 under the terms of the decree entered on April 4, 1913, and then adjudges a recovery against him for the $600 and awards execution therefor, and further awards an order of sale of that part of the community property set aside to him in the decree of April 4, 1913, to pay the sum of $600. The judgment further recites that this judgment shall be without prejudice to future enforcement of the decree of April 4, 1913, as allowances may accrue and be unpaid. The defendant in this judgment sues out a writ 'of error to this court, asking it to be reviewed and set aside on the errors assigned.
    H. N. Nelson, of Carthage, for plaintiff in error. Young & Abney, of Marshall, for defendant in error.
   LEVY, J.

(after stating the facts as above). By the second and third assignments of error it is contended that the incidental decree of April 4, 1913, entered in the divorce proceedings, upon which Mrs. Gully solely predicated her right for relief in the instant suit, was legally void and inoperative, and therefore the court was without jurisdiction over the subject-matter pleaded to grant the relief of the present judgment of March 31, 1914, appealed from. "We therefore review the aver-ments of the motion as in the nature of a general demurrer. It is thought that the petition or motion sues upon the incidental decree entered on April 4, 1913, in a divorce proceeding, with the object of having its terms carried into effect by order of sale. In granting a divorce, the court may make such division, at least of the community property, in reference to the condition of the parties, and support and education of the children, as may be equitable and just. Article 4634, R. S. The court, as appears from the averments, made such division of the community property as to him seemed proper, and ordered it set aside and delivered to the separate possession of each party; and the custody of the children was, it appears, awarded to the mother, as the court had authority to do. Article 4641, R. g. But in respect to the future maintenance of the children the court, it is averred, directed the payment by each parent of a monthly stipend, and made it a charge or lien on the respective community property set aside to each parent; and the very question here is as to the authority of the court to make this character of provision for the children as averred in the motion. If the court lacked the power to enter an incidental decree at all of the character in question in a divorce case, it would be void and inoperative, and consequently the instant proceedings to enforce its terms could not be legally maintained.

In appeal direct from similar incidental decrees they have been held void and inoperative upon the ground of lack of power in the court in a statutory proceeding for divorce to make incidental decrees against the parents in personam for payment of a monthly stipend in future support of their children. Ligon v. Ligon, 39 Tex. Civ. App. 392, 87 S. W. 838; Bond v. Bond, 41 Tex. Civ. App. 129, 90 S. W. 1128; Barry v. Barry, 131 S. W. 1142; Martin v. Martin, 148 S. W. 344. As clearly explained in Martin v. Martin, supra, the powers of a court in a divorce case before him are purely of statutory authority, and he may not go to the extent of exercising powers not conferred by law upon him, and an incidental decree against the parent in personam for payment of a monthly stipend in future support of his children is beyond the powers of the court to enter in a divorce case. It is to be understood that this form of order is, legally speaking, treated more in the nature of a direction to do than as a decree or judgment as such. These cases decide, we think, the question here. It is not thought that the case of Schultze v. Schultze, 66 S. W. 56, cited by defendant in error, furnishes authority for holding that the incidental decree involved here was not void and inoperative. The decisive ruling in that case was distinctly placed upon the ground that the death of the father of the child since the suit abated any action by Mrs. Schultze. The remark there concerning the conclusiveness of the incidental decree was dictum. The gupreme Court, on writ of error, approved merely the ruling in making-disposition of the case in respect to Mrs. Schultze. Rilling v. Schultze, 95 Tex. 356, 67 S. W. 401.

It is concluded that the court in the instant case did not have the authority to enforce the incidental decree as far as awarding monthly stipend in future support of the children, as sought by the pleading, and the judgment appealed from is reversed; and the judgment is here rendered that the trial court should have rendered, dismissing the suit, with all costs against defendant in error. Whether the mother could or could not maintain a suit in common-law action against the father for the children’s necessary suppiort and education is not a question presented by the record, and we pass no opinion in that respect.

Reversed, and suit dismissed.
      (g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FIRST BAPTIST CHURCH OF TYLER et al. v. CARLTON LUMBER CO.

    (No. 1363.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1915.
    Rehearing Denied March 4, 1915.)
    1. Mechanics’ Liens &wkey;>132 — Materials — Abandonment by Contractor — Time for Piling Notice.
    Under Rev. St. 1911s art. 5623, providing that one furnishing material to a contractor for the construction of a building may acquire a lien therefor by giving written notice to the owner, showing the items furnished, or by filing a notice of lien with the county clerk within the time fixed, but in no case shall the owner be required to pay a greater sum than the contract price, one who furnished material to a contractor, but who had not fixed his lien before the contractor abandoned the contract at a time when he had been paid in full for all work done, cannot claim a lien.
    [Ed. Note. — Por other cases, see Mechanics’ Liens, Cent. Dig. §§ 190, 192-207; Dec. Dig. <&wkey;>132.]
    2. Mechanics’ Liens &wkey;>108 — Constitutional Provisions — Construction—Material-men.
    Const, art. 16, § 37, giving mechanics and materialmen a lion upon a building for the value of their labor or materials, does not give a person between whom and the owner there is no privity of contract a lien upon the property for labor or materials furnished to the principal contractor.
    [Ed. Note. — Por other cases, see Mechanics’ Liens, Cent. Dig. §§ 140, 141; Dec. Dig. >&wkey;> 108.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by the Carlton Lumber Company against tlie First Baptist Cluircli oí Tyler, Tex., and others, to foreclose a mechanic's lien. Judgment was rendered personally for the plaintiff against the contractor and for foreclosure of a lien against the building. From that part of the judgment decreeing the foreclosure, the defendants appeal.
    Reversed, and rendered for defendants.
    The suit was by appellee against appellants for foreclosure of a mechanic’s lien in the sum of $2,789.93. It appears that the First Baptist Church of Tyler entered into a written contract with the MeGavick Construction Company for the erection and completion of a brick and concrete church building, and to provide all materials and perform all work mentioned in the drawings and specifications prepared by an architect, including heating, plumbing, and electric wiring complete. The contract was dated September 26, 1911. The church was to pay the contractor the fixed sum of $39,950.85 for the whole of the work and the materials. . By the terms of the contract payments out of the contract price were to be made the contractor, on written certificate of the architect, every SO days during the progress of construction, not to exceed 80 per cent, of the labor performed and material placed in the building at the time of such estimates; the final payment to be made within 30 days after the contract was fulfilled. Article 5 of the contract provided, in effect, that if the contractor at any time during the progress of the work should neglect or refuse to supply a sufficiency of materials or properly skilled workmen, or should fail to prosecute the work with promptness and diligence, and the architect certified such failure, the church should have the right, after 3 days’ notice in writing to the contractor, to terminate the employment of the contractor for the work, and to employ other persons to finish the work and provide the materials therefor, and that the expense should be deducted from the contract price. The entire contract in wilting appears in the record, and is here made a part of the findings of fact. The construction company gave to the church a bond executed by the Western Casualty & Guaranty Insurance Company, conditioned that the construction company would faithfully comply with the terms and conditions of its contract. The construction company entered upon the performance of the contract and erected the greater part of the church building. Up to October 2, 1912, there had been paid out to the contractor by the church for labor and material that had gone into the building a sum in the amount of $31,000. At that date, with extras added, the contract price amounted to $41,585.60. On October 2, 1912, on estimate of the architect the church paid the contractor $420.57. On October 12th, on estimate of the architect, the contractor was paid $1,142.72. Through inability of the contractor to fur-1 ther finance the work, the church committee, on October 24, 1912, advanced to the contractor, by consent of the bonding company, $3,-000 of the contract price, to be applied to labor and material for .the completion of the building. Prior to advancing this sum the architect, at the request of the contractor and the church committee, went over the work done in detail and made estimate of the amount of the contract price unpaid and the cost required to complete the building. The estimate of the architect. was that it would take $9,582.30 to complete the work under the contract, which amount included “the balance due on the heating plant” and “the amount due the Garitón Lumber Company, and further bills unpaid.” It was estimated that there was approximately $10,-000 of the contract price unpaid, inclusive of the balance due on the heating plant. On December 10, 1912, because of inability to finance the work, the contractor entirely ceased work on the building, and, in point of fact, abandoned the work and the contract. The day the contractor ceased to work and abandoned the contract the church, on the architect’s estimate, paid the contractor $294.60. The architect made estimate that it would take $6,600 to complete tlie building and pay the bills, and that only $6,061.15 of the contract price was then unpaid. At the time the contractor abandoned the work there was nothing due him by the church. After the abandonment of the work and the breach of the contract the church committee entered into and made on December 16, 1912, a distinct written contract with the Western Casualty & Guaranty Insurance Company to finish and complete the building for the sum of $0,661.15. The insurance company entered upon the work and completed the building, and the church committee paid to it the sum of money it had contracted to pay.
    On October 2,1912, tlie construction company gave the following written order to the chairman of the building committee of the church:
    “You will please pay Carlton Lumber Co. ($2,775.55) twenty-seven hundred seventy-five and S5/ioo dollars, amount due them for material on church job.
    “MeGavick Construction Company,
    “Per P. J. MeGavick.”
    The order was at once presented, but the church committee did not accept or agree to pay it, and at the time there was nothing due to the construction company. Afterwards the appellee lumber company filed in the county clerk’s office on December 16, 1912, a mechanic’s lien for the amount of $2,789.93. Notice of the claim and lien was properly given to the church by the lumber company.
    The court, with the assistance of the jury verdict, rendered personal judgment against the construction company for the full amount of the claim, and against the church, with foreclosure of mechanic’s lien, for $1,429.89. The church on its indemnity contract with tlie bonding company was awarded judgment over and against such bonding company for the amount recovered by appellee against it.
    Fitzgerald, Butler & Bullocb, of Tyler, for appellants. Lasseter & Mcllwaine and N. A. Gentry, all of Tyler, for appellee.

       writ ol error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above). [1] The appellants each requested a peremptory instruction to the jury in their favor, which was refused by the court, and this action is here assigned as error. The appellee may only recover, if at all, it is thought, upon the ground that it has a mechanic’s lien. In this respect it appears undisputed that the McGavick Construction Company, in point of fact, abandoned the work and breached the contract at a time when the building was incomplete, and the church committee, accepting the breach, and acting independently of the contract, made a distinct contract reletting the work to the appellant insurance company for a stated and fixed price. At the time of the abandonment of the contract the original contractor had been paid in full, and appellee had not fixed a mechanic’s lien until after the contract had been relet to appellant insurance company. In these facts it is believed that no recovery could be had or statutory lien enforced against the church or the subsequent contractor. Article 5623, R. S.; Berry v. McAdams, 93 Tex. 431, 55 S. W. 1112; Medley v. Radiator Co., 27 Tex. Civ. App. 384, 66 S. W. 86; Riter v. Mfg. Co., 19 Tex. Civ. App. 516, 48 S. W. 758.

And, unless it can be said, as contended by appellee, that it has a lien under the terms of the Constitution, independent of the statute, the peremptory instruction should have been given. Under the facts appellee was not itself the contractor with the owner of the building, but merely furnished to the contractor, under a contract separately and distinctly with the contractor so to do, the lumber and material for which the lien is claimed. The owner was no party to the contract of appellee with such contractor. The pertinent provision of the Constitution reads:

“Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.” Article 16, § 37.

It is concluded that the terms of the constitutional provision may fix'and establish a lien on the property in favor of the principal contractor himself for the value of the material put in the building “by him,” but does not extend and give to other persons between whom and the owner there is no privity of contract a lien upon the property for the value of the material furnished by them to the principal contractor. Shields v. Morrow, 51 Tex. 393; Horan v. Frank, 51 Tex. 401.

The judgment is reversed, and here rendered in favor of appellants, with costs of appeal and of the district court. The judgment against the construction company, not being appealed from, will remain undisturbed.
      (g^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    MULLINAX v. BARRETT et al.
    (No. 1402.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 18, 1915.)
    1. Judgment <&wkey;948 — Conclusiveness — Pleading.
    Where a bill to set aside a sale of infants’ property did not show that the infants were es-topped by a judgment in a prior suit prosecuted by. their guardian, defendants must plead and prove such adjudication if they rely thereon.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1787-1793; Dec. Dig. &wkey;948.]
    2. Guardian and Ward <&wkey;90 — Property oe Ward — Sale.
    Under Rev. St. 1911, art. 4156, providing that, where the necessity exists, a guardian should apply for an order to sell his ward’s real property, which application should be accompanied by an exhibit under oath showing the condition of the estate, an order of the probate court directing the sale of a ward’s property on an application not accompanied by a verified exhibit should be treated as void, where the court heard no testimony and made no inquiry to ascertain whether the necessity actually existed.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 349-355; Dec. Dig. <&wkey;>90.]
    3. Guardian and Ward <&wkey;108 — Sale oe Wards’ Property.
    As Rev. St. 1911, art. 4181, prohibits a guardian from conveying his ward’s property until the purchaser has complied with the terms of sale, a purchaser’s arrangement with a guardian who, with his wards, owned a tract of land, that a payment made to the guardian should also be treated as a payment for the wards’ interest, does not raise equities against the wards.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 369, 395-398; Dec. Dig. &wkey;>108.]
    4. Guardian and Ward <&wkey;105 — Cancellation oe Guardian’s Deed.
    A guardian’s deed, though the sale be set aside, will not be canceled where no cancellation was prayed.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 383-389; Dec. Dig. <&wkey;> 105.]
    Appeal from District Court, Franklin County; W. T. Armstead, Judge.
    Bill of review by A. J. Barrett, as guardian, and others, against Ed Whittle and Clax-ton Mullinax. From a judgment for plaintiffs, defendant Mullinax appeals.
    Affirmed.
    Ed Whittle, and Jack Whittle, Jim Whittle, and Lizzie Whittle, as heirs of W. H. Whittle and his wife, owned in common 145.6 acres of the Wm. Y. Lacey survey in Franklin county. Jim and Lizzie Whittle were minors. Ed Whittle was guardian of their estates. By a deed dated September 4, 1911, Ed Whittle and Jack Whittle, in consideration, as recited therein, of $200 then paid to them by appellant', Mullinax, and the ex-eeution and delivery to them by said Mulli-nax of bis three promissory notes — two of them for $300 each, payable respectively, January 1, 1912, and December 1, 1912, and the other for $200, payable December 1, 1913 — conveyed the land mentioned to said Mullinax. At the time the deed was made it was understood between Ed Whittle and Mullinax that the consideration recited therein was to pay for the interest of the minors Jim and Lizzie Whittle in the land as well as for the interest of Ed Whittle and Jack Whittle therein, and that Ed Whittle, as guardian of said minors, was to have the probate court make the orders necessary, and then convey to him the interest of said minors in the land. On said September 4, 1911, Ed Whittle, as guardian aforesaid, applied to the county court of Franklin county for an.order authorizing him to sell the interest of said minors at private sale “for part cash and part on time.” In his application for the order the guardian alleged that it was “necessary to sell a portion of the real estate belonging to said minors because the personal property belonging to the said estate is insufficient to properly support and maintain the said wards.” October 3, 1911, said court made an order as applied for, reciting therein that it appeared:
    “That legal notice of the filing of said application had been issued and posted in the manner and for the length of time required by law, and no one came to contest the same, and that there is a necessity for said sale for the purpose of the support and maintenance of said wards, and that it would be to the interest of said estate that said sale be ordered.”
    October 12, 1911, the guardian reported to the court that, in obedience to the order, he had sold the interest of his wards in the land to appellant, Mullinax, at $7 per acre, “making an aggregate of $525 for their interest in said land,” payable by said Mullinax one half in cash and the other half by his promissory note for $262.50, maturing January 1, 1912, and that said Mullinax was_ ready to comply with the terms of the sale' “whenever the same shall have been confirmed.” That the sale as made was confirmed by the court is not otherwise shown in the record than by what purports to he a copy of the order confirming it, set out in the deed made by Ed Whittle, as guardian, dated December 2, 1911, conveying the interest of his wards in the land to said Mullinax. From the order of the court as copied in said deed it appears that the sale as made was confirmed by the court at its October term, 1911, and that the guardian was then directed to “make a proper conveyance of the said land to the said Claxton Mullinax upon his compliance with the terms of the sale.” In the deed was a recital that Mullinax had paid $262.50 to the guardian and had executed and delivered to him his (Mullinax’s) promissory note for $262.50, payable 12 months after its date, to the order of the guardian, and secured by the vendor’s lien reserved on the land. As a matter of fact, no sum in cash was then ptaid by Mullinax to the guardian, and Mullinax did not then or ever afterwards make and deliver to the guardian such a note as the one described in the deed.
    From a bill of exceptions in the record it appears that, at a time not specified, the minors Jim and Lizzie Whittle, each being then over 14 years old, as authorized by law, chose appellee A. J. Barrett as their guardian (Vernon’s Statutes, art. 4079), and that the county court thereupon ordered their former guardian, Ed Whittle, to file his final account for settlement. The account, having been filed as directed, was, at a time not stated, approved by said court. Afterwards said Barrett, as guardian, sought by a bill of review filed in said court, to have the order approving Ed Whittle’s account set aside, and to have certain items of credit (the nature thereof not apioearing) allowed said Ed Whittle as guardian rejected. Said court thereupon set aside said order and restated the account, expunging therefrom said items of credit. On an appeal prosecuted by Ed Whittle to the district court that court, at its April term, 1914, also rejected said items of credit, and, having restated the account, ordered same “certified back to the probate court for further proceedings in accordance with law.” What action, if any, was afterwards had in the county court with reference to the matter is not shown in the record before ns. The proceedings resulting in the judgment from which this appeal is prosecuted were commenced by a bill of review filed in said county court September 5, 1913, by said Barrett, as guardian of Jim Whittle, Lizzie Whittle having married, and by said Lizzie, joined by her husband L. E. Lee, against said Ed Whittle and appellant, Olaxton Mullinax. Said Barrett and Lizzie Lee and her husband, appellees here, sought by their bill to have the orders authorizing and confirming the sale made to Mullinax by Ed Whittle as guardian vacated and annulled. The grounds specified in their bill as authorizing such relief were: (1) That the application for the order of sale did not show a necessity therefor, and was not accompanied by an exhibit under oath showing the condition of the estate, as was required by law (Vernon’s Statutes, art. 4156); (2) that a necessity for the sale of the land did not, in fact, exist, and that the court ordered a sale thereof without inquiry as to whether such necessity existed or not (Vernon’s Statutes, arts. 4155, 4158); (3) that the order directing the sale of the minors’ interest in the land did not specify what that interest was, and did not so describe the land as to identify it (Vernon’s Statutes, art. 4162); (4) that the interest of the minors in the land was 109.21 acres, whereas it appeared from the report of the sale and order confirming same that same was sold to Mullinax as 75 acres only; (5) that said report showed the minors’ interest to have been sold on a basis of $7 per acre for $525, one-balf cash and one-half in one year, “while the record of sale shows $250 cash and three promissory notes for $100 each, payable January 1, 1912, December 1, 1912, and December 1, 1913, making a total of $550” ; (6) that, while the report of the sale was not filed until October 12, 1911, it appeared from the order made by the court that the sale was approved October 3, 1911; (7) that the court approved the report made of the sale without inquiry as to whether the sale was fairly made or not (Vernon’s Statutes, art. 4177); (8) that Mullinax, in fact, paid nothing on account of his purchase of the minors’ interest in the land.
    By a motion filed in the county court October 13, 1913, appellant sought to have the suit dismissed on the'ground that the right of the guardian and the Lees to maintain it was concluded by the judgment rendered in the proceeding prosecuted as stated by Barrett as guardian against Ed Whittle to have the latter’s final account as guardian restated. This motion was sustained in the county court,- whereupon Barrett and the Lees prosecuted an appeal to the district court. In the latter court it seems the motion to dismiss was renewed and overruled. After hearing the testimony on the trial de novo in the district court, that court, it seems, peremptorily instructed the jury to find in favor of Barrett as guardian and the Lees, and, such a verdict having been returned, entered judgment: (1) Vacating the orders of the county court directing and approving the sale of the land made by Ed Whittle as guardian; (2) canceling the deed made by said Ed Whittle as guardian to Mullinax; (3) for costs; and (4) directing that its judgment be certified to the county court for “observance and further proceedings therein according to the laws of this state.”
    G. E. Go wan, of Bit. Vernon, and J. H. Beavers and W. G. Russell, both of Winns-boro, for appellant. J. A. Ward, of Bit. Pleasant, and R. T. Wilkinson and II. L. Wilkinson, both of Bit. Vernon, for appellees.
   WILLSON, O. J.

(after stating the facts as above). In his first assignment appellant complains because the court overruled his “motion to dismiss the case from the docket.” As stated above, the ground of that motion was that Barrett and the Lees were estopped by the judgment rendered in a suit prosecuted by Barrett, as guardian, against Ed Whittle to have the latter’s final account as guardian restated. That they were not es-topped by that judgment is believed to be clear; but whether they were or not need not be determined. Such a question was not presented by anything appearing on the face of the bill. If appellant thought the facts of the case made such a question, and wished it determined, he should have pleaded and proved those facts as a defense to the suit.

It is next insisted that the court erred when he peremptorily instructed the jury to find in favor of Barrett, guardian, and the Lees. The application for an order authorizing a sale of the minors’ interest in the land was made by one Shurtleff, as attorney for the guardian Ed Whittle. It was alleged in the application that it was necessary to sell the minors’ interest, because the personal property belonging to their estates was not sufficient to properly support and maintain them. The application was not sworn to. It was not accompanied “with an exhibit, under oath, showing the condition of the estate,” as the law required it to be. Article 4156, R. S. 1911. The probate court heard no testimony and made no inquiry to ascertain whether a necessity existed, as alleged, for selling the interest of the minors in the land or not. The facts just stated being uncontroverted, we are of opinion it appeared, as a matter of law, that the action of the probate court in granting the order directing the sale was erroneous. Eor that reason it should have been set aside, unless appellant, as the purchaser at the sale made thereunder of the minors’ interest in the land, had acquired rights which should not have been ignored.

We are of opinion it conclusively appeared he had not acquired such rights. According to the report made to the court by the guardian, appellant agreed to pay $525 for the minors’ interest in the laud, and to pay one half of the amount in cash and the other half thereof on January 1, 1912. The guardian was forbidden by law (article 4181, R. S. 1911), as appellant must be assumed to have known, to execute and deliver to him a deed conveying the interest of the minors, until after he had complied with the terms of the sale of their interest made to him by the guardian. According to his own testimony as a witness, appellant did not comply with the terms of that sale. He did not at the time it was made, nor afterwards, pay to Ed Whittle, as guardian, any sum in cash, and he did not then nor afterwards make and deliver to said Ed Whittle, as guardian, his (appellant’s) promissory note, secured as required by law, for the sum to be paid January 1, 1912. It is not believed that the fact that it was understood between appellant and Ed Whittle that the sum of money and notes appellant delivered to said Ed Whittle and Jack Whittle as the consideration for the conveyance to him of their interest in the land was to be also the consideration for the conveyance, when same should be made, of the minors’ interest therein, created equities in appellant’s favor as against the right of the minors to the relief granted. That understanding doubtless was binding on Ed Whittle in his capacity as an individual. It did not bind him in his capacity as guardian, and therefore -did not bind the minors.

If the testimony authorized the court to peremptorily instruct the jury to find in favor of the minors’ contention that the order directing the sale of their interest in the land should be set aside, and we think it did, then the court did not err in instructing them generally to find in favor of Barrett, guardian, and the Bees. And he did not err when, on such a finding, he entered judgment vacating the order confirming the sale of that interest, as well as vacating the order directing the sale. If the sale made was unauthorized, then it would follow that the order confirming the sale was unauthorized.

It is believed that the contention made that the court below erred in decreeing a cancellation of the deed executed by Ed Whittle as guardian to appellant should be sustained. Even if the court had power in a proceeding of this nature to award such relief, he should not have awarded it in the absence, as was the case, of pleadings asking it.

In this respect the judgment will be modified, and, as modified, it will be affirmed.
      <@^>For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    CRENSHAW et al. v. STAPLES.
    (No. 1411.)
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 25, 1915.
    Rehearing Denied March 4, 1915.)
    1. Sales &wkey;>479 — Remedies oe Seller.
    Plaintiff sold personal property to defendant reserving title as security. Defendant was given possession and control over the property. held, that the conditional sale, which by Rev. St. 1911, art. 5654, is treated as a sale and chattel mortgage, did not entitle plaintiff upon defendant’s breach to recover rent for the use of the property, but entitled him to recover the amount of the debt.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1418-1432, 1434-1438; Dec. Dig. &wkey; •479.)
    2. Pleading &wkey;>72 — Prayer eor Relief.
    A prayer for general relief authorizes the court to grant such relief as the facts warrant.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 143, 144; Dec. Dig. &wkey;72.]
    3. Replevin <&wkey;124 — Sale oe Property Re-plevied — Liability.
    Whore property is replevied, the party re-plevying obligates himself to have it forthcoming- to abide the final decision in the suit, under Rev. St. 1911, art. 7104, and where plaintiff after replevying property sold it, he and the sureties on his bond cannot take advantage of the fact that after execution of the bond one of the mules replevied died and the other property depreciated.
    [Ed. Note. — For other eases, see Replevin, Cent. Dig. §§ 487-497; Dee. Dig. &wkey;124.]
    Appeal from Panola County Court; J. R. Duran, Special Judge.
    Action by F. N. Staples against O. C. Cren-shaw and others. From a judgment for plaintiff, defendants appeal.
    Reformed and affirmed.
    H. N. Nelson, of Carthage, for appellants. Brooke & Woolworth, of Carthage, for ap-pellee.
   HODGES, J.

The appellee, Staples, filed this suit against the appellant O. C. Cren-shaw on the 7th day of August, 1912, alleging, in substance, that on or about the 1st day of November, 1911, he was the owner and had possession of and that he was still the owner and entitled to the possession of, certain personal property described as a shin'gle mill and the appurtenances, together with one mule and some wagons. All of the items of the property are set out and the value of each stated in detail, aggregating the sum of $421. It is further alleged that all of the above property except the mule and wagons was situated on the appellee’s homestead; that it was agreed by the appellee and Cren-shaw that the latter was to operate the machinery mentioned at his own cost, and was to pay to the appellee the sum of $25 per month until the full sum of $410 was paid; and that during the time the machinery was to be thus operated both the title and possession of the machinery, mules, and wagons, should remain in the appellee. The agreement also provided that, in case Crenshaw failed or refused to pay the sum of $25 per month, he was to cease to operate the machinery and lose all of his rights to the same. It was further agreed that, if Cren-shaw from the time he began to operate the machinery paid to the appellee the sum of $25 per month for each mouth thereafter until the full sum of $410 was paid, then at the expiration of that time the property was to be his. In pursuance 'of that agreement, Crenshaw was permitted to take possession and begin the operation of the machinery, which he continued until about the 6th day of August, 1912; that he failed to perform his agreement in paying the sum of $25 per month,' but, on the contrary, he had paid nothing in accordance with his undertaking. The petition then proceeds to set out the rental value of the property, and alleges that Crenshaw refuses to deliver possession of the property to the appellee, and that he was setting up a claim of some kind to its ownership. The petition then prays for a judgment for the title and possession of the property, and for the sum of $10 per month from the 1st day of November for its use, for costs of suit, and for such other and further relief as he may be entitled to both in la>v and in equity.

The record shows that on the same day an affidavit and bond were filed, and a writ of sequestration issued by which the property described in the petition was seized by the sheriff of Panola county; that within 10 days thereafter the appellant, Crenshaw, filed a replevin bond conditioned according to law, with the appellants W. D. Hill and J. N. Ash as his sureties. Subsequently the appellant Crenshaw answered, alleging, among other things, that he purchased the machinery at the time mentioned in the appellee’s petition at the price stated; that when this trade was made the appellee owed him a sum of money largely in excess of the price of the machinery; and that he toot the machinery with the understanding that a settlement was to he had between them and that if he (Crenshaw) owed the appellee anything this balance would be paid at the rate of $25 per month. He further denied that he owed anything for the machinery, and claimed damages by reason of the issuance and service of the writ of sequestration.

The case was submitted to a jury upon special issues, and the following facts found: (1) That the appellee and the appellant Cren-shaw did enter into a contract by which it was agreed that the price of the machinery and property involved in the suit was fixed at $410, and that Crenshaw should pay to the appellee the sum of $25 per month from the 1st day of Novebibor, 1911, until the amount of $410 was paid; that by this agreement the title to the property was to remain in Staples until these payments were made. (2) That Crenshaw had paid nothing for the property. (3) That the appellee did not owe Crenshaw any sum of money equal to the value of the property. (4) That the value of the property on the 12th day of August, 1912,' the date it was replevied, was $421; each item being separately listed and valued. (5) That the rental value of the property was $5 per month.

In accordance with that verdict, the court entered up the following judgment, omitting the preliminary recitals:

“And it appearing to the court that the property in controversy was the property of the plaintiff, and that the value of said property as assessed by the jury was $421, and it further appearing to the court from the verdict of the jury that the defendant was in possession of said property from the 1st day of November, 1911, until the 5th day of August, 1914, and it further appearing from the verdict of the said jury that the rental value of said property is $5 per month, and it further appearing' to the court that said property was sequestered by the plaintiff on the 7th day of August, 1912, and was replevied by the defendant on the 12th day of August, 1912, and that W. D. Hill and J. N. Ash are sureties on said replevin bond, the said bond being conditioned as required by law, it is therefore ordered, adjudged, and decreed by the court that the plaintiff, F. N. Staples, do have and recover of O. C. Crenshaw, the defendant, and W. D. Hill and J. N. Ash, the sum of $421. It is further ordered, adjudged, and decreed by the court that the plaintiff, F. N. Staples, do have and recover of the defendant O. G. Crenshaw the sum of $5 per month from the 1st day of November, 1911, until the 7th day of August, 1912. It is further ordered, adjudged, and decreed by the court that the plaintiff do have and recover of the defendant O. C. Crenshaw, and W. D. Hill and J. N. Ash, the sum of $5 per month from August 12, 1914, the sum of $118.88.”

Judgment for costs is also rendered against these sureties.

Since the appeal has been perfected and briefs filed in this court, the appellee offers to remit so much of the judgment as awards a recovery for the rental value of the property. 1-Ie also suggests that, if the court should hold that the judgment is erroneous in awarding costs against the sureties, it should be modified and not reversed.

Eliminating those two features of the judgment, we have practically but two questions left: (1) Is the judgment against the appellant Crenshaw excessive? (2) Are the sureties on his replevin bond liable for the value of the property at the time it was replevied?

Crenshaw and his sureties file separate briefs presenting these different assignments of error. Crenshaw attacks the ruling of the court in failing to permit him to prove that the property at the time of trial had greatly depreciated in value, and also that feature of the court’s instructions where he directs the jury to find the value of the property at the time it was replevied. It appears from both the pleadings and the judgment rendered that the plaintiff below and the court treated this as a .suit to recover specific property, and that the liability of the appellant Crenshaw was to be measured by the value of the property at the time it should have been delivered to the plaintiff. But, as we construe the transaction upon which this suit is based, there was a sale of the property by Staples to Cren-shaw, with a reservation of the title as security for .the payment of the purchase price. The evidence clearly shows that the physical possession of the property was delivered to Crenshaw; that he had the right to use and operate it and to appropriate all the revenues and benefits arising therefrom to his own use; that be had obligated himself to pay a fixed sum as the purchase price, with the understanding that after the payment of that sum the property was to be his absolutely. Under article 5G54 of the Revised Civil Statutes of 1911, contracts of this character are defined as chattel mortgages. Treating the transaction as a sale, and the parties as mortgagor and mortgagee, the measure of the mortgagor’s liability was the amount of his debt, $410, and the accrued legal interest, at the time of the trial, and not the market value of the property. Inasmuch as the judgment does not exceed the amount of the purchase price and the accrued interest, the ap-X)ellant Crenshaw has no right to complain of any error which did not extend his liability beyond that fixed by his contract. The judgment as to him will be reformed so as to eliminate that feature making him liable for the rental value of the property. While it is true the appellee did not pray for a personal judgment based upon that contract, he alleged all the facts necessary to constitute a sale and mortgage; and his prayer for general relief enables the court to render such a judgment as the facts found by the jury authorize.

The remaining question is: Did the sureties have a right to complain at the action oí the court in making their liability depend upon the value of the property at the time it was replevied, and not upon its value at the time of the trial? Under ordinary conditions, where there has been no breach of the replevin bond which prevents a return of the property in satisfaction of the judgment as permitted by law, this contention is correct. Luedde et al. v. Hooper, 96 Tex. 172, 66 S. W. 65; Wood v. Fuller, 34 Tex. Civ. App. 178, 78 S. W. 236. But in this case the facts show without dispute that, after the execution and delivery of the re-plevin bond, one of the animals embraced in the property sequestered died, and that the remainder had been disposed of by Crenshaw. It was also shown by the testimony of both the appellee and Crenshaw that at the time of the trial the property was comparatively worthless. When Crenshaw disposed of the property does not appear, and there was no offer to show that its value at the time of this disposition was different from what it was at the time it was replevied, by him. When Crenshaw replevied the property, he obligated himself to have it forthcoming to abide the final decision rendered in the suit. Revised Civil Statutes, art. 7104. It was upon his promise to do this, and the execution of the bond to insure its fulfillment, that he was permitted to retain the custody of the property. The bond is not a substitute which authorizes the defendant to sell or otherwise dispose of the property at his election. Crawford v. S. R. I. Plow Co., 33 Tex. Civ. App. 510, 77 S. W. 280. It is a solemn undertaking by the defendant to have the property on hand and ready to be subjected to any writ that may be issued against it, and his sureties guarantee that he will do this. If he fails, the plaintiff is entitled to recover whatever he loses by reason of such failure. Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704. Therefore, when the defendant, after securing possession of personal property in this maimer, sells it before the day of trial, he voluntarily places it beyond his power to fulfill his undertaking and commits a breach of his bond. HIs liability for the value of the property then becomes absolute if he loses upon the main issue in the case. To permit him after such á sale to prove that the value of the property at the time of the trial was less than it was when it passed into his hands, and thus reduce his liability, would allow him to profit by his own misconduct. After he parts with his title and possession of the property, fluctuations in value cannot inure to his benefit, but may operate to his injury. What estops the principal is equally effective against those who guaranteed the performance of his undertaking. The facts of this case are such as to take it out of the rule laid down by the Supreme Court in Luedde v. Hooper as previously cited.

We conclude that the trial court committed no error in holding that the value of the property at the time it was replevied was the proper measure of damages. The judgment, however, will be reformed so as to relieve the sureties from liability for rents and costs of suit, and, as reformed, will be affirmed. The costs of this appeal will be adjudged against the appellee.
      <&wkey;>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. BLAIR.
    (No. 5317.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 27, 1915.
    On Motion for Rehearing, March 3, 1915.)
    1. Master and Servant <&wkey;137 — Injuries to Servant — Negligence or Master.
    A railroad company owes a duty to a switchman, sitting on a velocipede near its platform, to prevent other employes piling trunks thereon from casting one over on the switch-man.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. &wkey;137.J
    2. Pleading <&wkey;205 — Injuries to Servant-Actions — Petition—General Demurrer.
    The petition by a switchman, injured when a trunk was thrown over a pile on him, need not describe the location of the platform, the reasons why he was sitting on a velocipede near it, or the minute circumstances surrounding the infliction of the injuries, in order to be good as against general demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 491-493, 495, 496, 498-510; Dec. Dig. &wkey;>205.]
    3. Master and Servant <&wkey;88 — Injuries to Servant — Contributory Negligence.
    Under Rev. St. 1911, art. 6649, substituting the doctrine of comparative negligence for contributory negligence with respect to employes of a railroad company, a servant need not be actually at labor when the injury is inflicted, but is entitled to the benefit of the statute if present and ready to respond to any call upon him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. &wkey;> 88.]
    4. Master and Servant <&wkey;226 — Injuries to Servanov-Assumption op Risk.
    An. employe assumes only those risks arising out of the ordinary course of the master’s business ; hence a switchman, seated on a velocipede near a platform on which trunks were being piled, does not assume the risk of a trunk being thrown upon him, though he may be guilty of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. &wkey;> 226.]
    5. Negligence <&wkey;119 — Prooe—Variance.
    Plaintiff must recover on the negligence pleaded.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. &wkey;119.]
    6. Master and Servant <&wkey;265 — Injuries— Presumptions — Res Ipsa Loquitur.
    Where a switchman, sitting near a station platform on which trunks were being piled, was struck by a trunk which either fell from or was thrown over the pile, the doctrine of res ipsa loquitur has no application.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. <&wkey;>265.]

      7. Master and Servant <$=>286 — Injuries to Servant — Evidence.
    Evidence of the negligence of a station porter in throwing trunks about the platform, one of which fell on a switchman, held insufficient to carry the case to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033. 1036-1042, 1044, 1046-1050; Dec. Dig. <$=>286.]
    On Motion for Rehearing.
    8. Master and Servant <$=>233 — Injuries to Servant — Contributory Negligence.
    Where a switchman, not actively engaged in his duties, took his position near a platform practically under a tier of trunks which were being piled, and one of them fell and hurt him, he was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 681, 684-086, 701-742; Dec. Dig. <$=>233.]
    Appeal from District Court, Karnes County; F. G. Chambliss, Judge.
    Action by H. A. Blair against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, for appellant. C. C. Harris, of San Antonio, C. L. Bell, of Karnes City, and M. J. Arnold, of San Antonio, for appellee.
   FLY, C. J.

This is a suit for damages alleged by appellee to have accrued by reason of the negligence of appellant’s porter in throwing a trunk upon appellee. The cause was tried with a jury, and resulted in a verdict and judgment in favor of appellee •for ?20,000.

The first assignment of error is overruled. The petition stated a cause of action, and was not open to attack by a general demurrer, however subject it may have been to being assailed by special demurrers. No railroad company is authorized to have trunks thrown by its porter on a switchman, or any one else, and the petition clearly stated that the porter negligently threw the trunk on appellee. It is a singular proposition that a railroad company owes no duty to a man sitting on a velocipede near its platform, if he happens to be a switchman. The case of Dobbins v. Railway, 91 Tex. 60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. Rep. 856, cited by appellant, has no applicability whatever to the facts of this case. Appellee was not called upon to give his reasons for sitting close to the platform. He may have had no reasons for such action, but that did not authorize appellant to kill or maim him. All the facts necessary to a recovery were alleged in the petition, at least fully enough to withstand the attack made through a general demurrer. Appellee was not called on to describe the location of the platform, nor the minute circumstances surrounding the infliction of the injuries upon him.

Until 1909, it was the well-settled rule in Texas that the doctrine of comparative negligence did not prevail in any case, but that if the plaintiff was guilty of contributory negligence he could not recover, no matter how negligent the defendant may have been. That rule has been abrogated by statute, however, in so far as applied to the em-ployés of any railroad company. As between the railway companies and their employes, the doctrine of comparative negligence is applicable. Rev. Stats. 1911, art. 6649. In that law it is provided that contributory negligence, on the part of a railroad employé, shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. Under tlie provisions of that statute the relation of master and servant must exist, and the injuries must be inflicted while the servant is in the service of the master; but this does not mean that the servant must be actually at labor when the injury is inflicted, but if he is present and ready to respond to any call upon him by the master, he would be in the employment of the master, and would be within the terms of the law as to fellow servants, as to assumed risk, and as to contributory negligence. Mere cessation from labor for a time would not destroy the rights of the employe under the statute. Railway v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804; Railway v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1149; Railway v. Hendricks, 49 Tex. Civ. App. 314, 108 S. W. 745; Railway v. Pennewell, 50 Tex. Civ. App. 541, 110 S. W. 758.

Appellee was in the employ of appellant as a switchman, and at the time he was injured he and his foreman were sitting on a velocipede, near the platform, waiting for a car to be unloaded, which, was to be handled by them. 1-Ie was in the actual service of appellant at the time, and is entitled to the benefits of the provisions of the statutes mentioned in regard to employés.

Even if the law of assumed risk had been applicable to appellee, the facts in this case do not raise the issue of assumed risk. A switchman could not assume the risk of having trucks thrown on him, because assumed risk arises out of the ordinary course of business of the master. Appellee could not have entered the employment of appellant with the knowledge that trunks were thrown on people who stood near the platform. The facts might have raised the issue of contributory negligence, but not of assumed risk. As said by this court in Railway v. Foth, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322, which was adopted by the Supreme Court:

“Assumed risk refers to a general course of action in connection with the master’s way of doing business and the appliances furnished; contributory neglig'ence refers to the question as to whether the servant acted prudently in connection with a certain matter that arose for his consideration at a certain time and place. The first is an intelligent choice; the latter is carelessness.”

The charge complained of in the third assignment of error correctly 'stated the law; for, if appellee was injured through the negligence of appellant, he was entitled to damages, because the contributory negligence of appellee was not a bar to his recovery as provided in article 60-19. The court in a succeeding paragraph applied the law of comparative negligence. In special charges, requested by appellant, the jury were instructed, in effect, that appellee could not recover anything if he was guilty of contributory negligence, which was more favorable to appellant than the law permits.

As before stated, • the special charges requested by appellant and given by the court were more favorable to appellant than they should have been, and they were, in effect, the same as the charge the refusal of which is complained of in the sixth assignment of error.

The allegations of negligence in the second amended original petition are:

“Plaintiff further alleges that the defendant had intrusted one of its employés, known as the station porter, with the duty of handling and placing trunks upon said platform near which the plaintiff was sitting; and said porter, while engaged in undertaking to pile trunks on the platform near which the plaintiff was sitting, and while endeavoring to throw a trunk on top of other trunks, so handled said trunk as to cause it to fall upon and against the plaintiff, causing him to be injured and damaged as set forth in this petition; and the acts of said station porter in so handling said trunk as to cause it to fall upon the plaintiff, was negligence upon the part of this defendant, and such negligence by the defendant was a direct and proximate cause of the accident, injuries, and damages to plaintiff set forth in this petition.”

The only negligence alleged, it is readily seen, is that of the porter “while endeavoring to throw a trunk on top of other trunks,” and it is an elementary proposition that to entitle appellee to a recovery there must be proof that the act of the porter “while endeavoring to throw a trunk on top of other trunks” caused the trunk to fall on appellee. The trial amendment is not properly verified, and the theory embodied therein was not given in charge to the jury.

When the accident occurred, appellee and his foreman were seated on a railroad velocipede near the platform where trunks were being piled. Appellee had his back to the platform and was conversing with the foreman. Appellee was about one foot from the platform. He testified:

“The first thing I knew of something coming, I heard a racket, and looked over my shoulder just in time to see this negro grab at this trunk he had threw over the other trunk.”

He assumed in this connection, as he did in -other parts of his testimony, that the trunk was thrown; but he did not see the porter throw the trunk. With his back to the trunks, it was, of course, an impossibility to see the porter throw the trunk, and when he turned the negro was endeavoring to catch the trunk to prevent it from falling. It is true that in other parts of his testimony appellee stated:

“The station porter threw the trunk over, and struck me on the back, and knocked me down, and injured my back, and broke my leg.”

This is utterly inconsistent and irreconcilable with his testimony giving the details of the accident. 1-Ie does not claim to have seen the negro throw the trunk, but only saw him “grab at the trunk.” At that time the force, whatever it may have been, that propelled the trunk had been exerted, and appellee could not have known what it was. The foreman corroborates appellee as to the sound of the falling trunk, but no one corroborates him as to the porter being near the trunk when it fell. The foreman saw no one there. Only an instant of time could have elapsed from the time that the trunk commenced falling until it struck appellee. In fact, it- was so short a time that appellee could not jump out of the way. The foreman did jump out of the way, and was not struck, but saw no negro. The evidence fails to show that the porter threw the trunk, or endeavored to throw it, on top of the other trunks; the only evidence as to the porter tending to show that he was endeavoring to catch a trunk, which, for some reason not shown, was falling from its position. The unreasonableness of the testimony appears from appellee’s own statement, as follows:

“After having detailed this occurrence as I have to the jury, and being situated as I said I was with my back to the platform talking to Mr. Grasshoff, and knowing about the trunks being' behind me and piled as I say they were, at 4 o’clock in the morning, and after I heard the rattling of trunks coming, I still tell this jury, on my oath, that I saw that negro with his hand on that trunk throwing it over where I was.”

The platform was four feet high, and the trunks were piled up between where appellee was sitting with his back to them and any man behind them. It was in proof that a person behind only one trunk on the platform could not be seen by a man sitting on the velocipede standing near the platform.

Our former opinion was written on the hypothesis that there was evidence showing that the porter threw the trunk on appellee, but on a thorough reconsideration of the facts we are of opinion that there was no such testimony, but the evidence on its face showed that it was an impossibility for ap-pellee to have seen the porter throw the trunk. The whole case hinged on the fact that the trunk was thrown, and the mere fact that the porter was seen grabbing at the trunk did not show that he threw it before he grabbed at it. That he may have seen it begin to slip, and endeavored to catch it, is just as reasonable as that he threw the trunk on top of the others with such force as to cause it to slide down and injure appellee.

If it be admitted that the trunk slipped when the porter endeavored to put it on top of the other trunks, in what did his negligence consist? It was not alleged that he knew that appellee was sitting in dangerous proximity to the trunks. Appellee was just as cognizant of the danger in sitting near and below the platform on which trunks were being piled as the porter, and should have known of their propensity for slipping. Any man of ordinary intelligence ought to have know'll that it was dangerous to sit below and near trunks piled upon one another. Was it negligence to endeavor to put the trunk upon the others, and was it negligence to try to stop it when it started to fall? Unless the doctrine of res ipsa loquitur could be applied in this case, the evidence fails to show negligence. That doctrine cannot be invoked in this case.

The evidence showed that the trunks were piled two and three deep on the platform; that it was 4 o’clock in the morning; that appellee was sitting with his back to the platform where the trunks were piled; that the platform was four feet high; that it was impossible to see a man behind the trunks from the position of the velocipede occupied by appellee; that the trunk had started to fall before appellee turned his head; and this is all the evidence in the case to show negligence. The evidence of the porter showed that he was not near the trunks at the time of the accident, and that the trunk that fell had been in the position from which it fell for some time. A number of passengers were near the scene of the accident, but none was called as a witness, and appellee was not corroborated as to the position of the porter. There wras no evidence that the porter'was leaning over the trunk when seen by appel-lee, the only position in which witnesses testified he might have been seen by appellee.

This court fully understands the position in which appellate courts are placed in regard to the verdict of a jury, and they have faithfully sustained that position; but when the assertions of an injured party cannot be based upon facts and are in the face of reason, there is nothing sacred about the verdict, and it should be set aside.

The motion for -rehearing is granted, the judgment of affirmance heretofore rendered will be set aside, the former opinion withdrawn, and the judgment of the trial court will be reversed, and the cause remanded.

On Motion for Rehearing.

We have fully considered the motion for rehearing and find no reason to cause this court to change its opinion. The porter testified, and his testimony was not contradicted, that he heard the trunk slipping and ran over to where it struck appellee. Appel-lee does not allege that the trunks had been piled up in a negligent manner, but that while the porter was endeavoring to throw a trunk on top of other trunks he so handled the trunk as to cause it to fall on plaintiff. In his motion for rehearing appellee states that the evidence discloses that the .trunks were already stacked along the edge of the platform back of him when he sat down, and that the porter was not placing trunks along there when appellee sat down, but was placing them on another part of the platform. Appellee contends that afterwards the porter brought the trunk which fell upon him to that part of the platform where appellee was sitting, and threw or lifted it up on another trunk, then pushed it over to the edge, and it fell off upon appellee. It is undisputed that the trunks at the edge where ap-pellee sat were piled two or more high, and therefore appellee’s statement that there was still a row of trunks left after the one fell on him may be said not to be a contradiction of the porter’s testimony that when he looked over to the place from which the trunk had fallen he saw that there was a broken place in the line of trunks that was there; a vacant place, like a tooth missing out of a row of teeth when one is gone. This very significant piece of testimony is denied by no one.

While much is said in the motion for rehearing about the trunk being thrown or lifted upon another trunk and shoved over, and the bump caused thereby being what attracted appellee’s notice, neither he nor Grasshof, or any other witness, testified to hearing any bump. The first thing that attracted their attention was a rattling or sliding sound, which was so alarming that according to Grasshof’s testimony he .supposed it was a trunk falling, and both he and appellee instantly tried to jump away from the danger. If appellee’s attention was attracted by a bumping sound, or by the scraping of the trunk as it was pushed over the other trunk or trunks, and he saw the force applied to the trunk which caused it to topple over, he could have jumped and escaped injury. Appellee testified that he did not jump forward, but “raised” up to jump forward, and looked over his shoulder just an instant before the trunk struck him. It is evident that the sound which alarmed him so closely preceded the trunk hitting him that he was unable to jump after hearing it, and it was a physical impossibility for him to know what caused it to fall. It was a three-cornered trunk, and there was considerable vibration of the platform. If he heard a trunk being bumped upon others right back of him, and looked around instantly, as a prudent man would have done, he could have jumped in ample time. If he heard only what he testified he heard, namely, a rattling or sliding sound, which so closely preceded the injury that he was unable to do more than rise up, he could not tell whether it was one of the trunks already stacked which fell upon him, or a trunk then being placed on the others. The porter testified that the trunks laid flat were stacked as high as they could get them, ánd that the trunks standing on end were one or two high, with some light pieces thrown on top; that the trunk which fell took up a good deal of space, but was not heavy; that it took up so much space, because it was in the shape of a piano box; that it was about 2% feet high and 2 or 2y2 feet wide and about 4 feet long. He also testified that the first trunks were put on the depot end of the platform (the end where appellee sat); that they stacked them two or three high; that they placed stacks of them back even with the board, and -made another row and stacked them all the way back. There is no contradiction of this testimony. It accords with the beliefs expressed by other witnesses. Appellee testified that he thought there were two or three rows where he was sitting.

It would be indeed a strange thing for the porter to attempt, after completing his outside row of baggage by piling it as high as he could, to take a large, badly shaped trunk, and put it on top of • the outside row right where appellee sat, instead of beginning at one of the ends if he thought the row would stand another tier being put upon it. The testimony shows that appellee’s theory cannot be sustained; but it must be that the trunk which fell upon him was one of those which had been piled up before he sat down upon the velocipede, and that, not having alleged negligence in piling them up, he cannot recover.

We did not reverse the judgment because one part of appellee’s testimony was inconsistent with the other, but because his testimony in regard to the cause of the trunk falling is contrary to the physical facts, and it cannot be true that he knew whereof he testified. We cannot shut our eyes to the responsibility -resting upon us, and aflirm judgments upon testimony which cannot be of any probative value, when viewed in the light of the admitted physical facts, which show such testimony to be merely the opinion of the witness, and an opinion which must be erroneous. Every one that observes such matters at all knows the tendency of trunks to slide and slip and fall when piled upon one another. The evidence fully showed this tendency, and appellee admitted that he knew of the danger of the position he assumed. He swore:

“I knew that if a trunk thrown upon top there got loose from the person handling it, or the trunk became dislodged from the vibration or any natural cause, that they would fall on me. I knew that when I sat down there. * * * while they were unloading these trunks, they were rolling them around by hand, that vibrated the platform some, and made some noises, so I could hear it. I heard it behind me.”

Trunks were piled along the edge of the platform at the time appellee chose his por sition near the trunks. Porters were engaged in piling trunks on top of the others. Appellee Jrnew that, and admits that he knew the danger of a trunk falling under such circumstances. 1-Ie testified:

“The trunks were all piled there, and I saw them when I sat down, and they were piled up back of it. I don’t remember if it was two tiers of trunks, or one tier of trunks. I don’t remember how high they were piled.”

Grasshof, who was with appellee, testified that the trunks were piled along the platform where he and appellee sat down. He swore positively that there was no man behind the trunk when it fell. The physical facts clearly indicate that appellee could not have seen any one throw a trunk into the vacancy between the piles of trunks, and unless the trunk was thrown the case was not made out. All that appellee swore was that he saw a hand grabbing at the falling trunk.

The evidence shows that appellee deliberately chose a Aplace to take a seat which he knew was dangerous. He was not acting under instructions from his foreman, but he acted voluntarily. He knew the trunks were piled near the edge of the platform; he knew other trunks were being added to them; he knew that the trunks might slip from vibrations of the platform; he knew that the vibrations were taking place; and yet in the face of this knowledge he chose, of all others, this place of danger in which to sit and engage in a conversation. He could not justify such conduct, even though he had been ordered by his foreman to assume the position he did. The danger in this instance was just. as apparent as in those cases in which men dug under overhanging cliffs. Reason and common sense should have caused him to appreciate the danger of sitting underneath a platform where trunks were piled one upon another. Appellee confessed that he knew that the trunks might fall. Hightower v. Gray, 36 Tex. Civ. App. 674, 83 S. W. 264.

Appellee was not in a place -provided for him by his master, but in one he had sought, while not engaged actively in his work. He voluntarily chose a place that he knew was dangerous, and was guilty of contributory negligence. Brooks v. Joyce, 127 Iowa, 266, 103 N. W. 91; Tanner v. Wickliffe Coal Co. (Ky.) 108 S. W. 351; Miller v. Moran, 39 Wash. 631, 81 Pac. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917; Dolstrom v. Newport Min. Co., 165 Mich. 309, 130 N. W. 643.

The motion for rehearing is overruled.
      igs^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <$=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes