author: HODGES, J.

text:
    AMERICAN NAT. INS. CO. v. GALLIMORE.
    (No. 1300.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 9, 1914.)
    1. Insurance (§ 365) — Like Insurance — Lapse.
    Where a life policy provided for reinstatement upon payment of back premiums, but that the insurer should not be liable for death occurring within five weeks from reinstatement, the beneficiary cannot recover, where the insured died within five weeks after the payment of the back premiums; there being no showing of any waiver of conditions by the insurer.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 932, 933; Dec. Dig. § 365.]
    2. Insurance (§ 536) — Life Insurance — Proofs of Death.
    Where a life policy required proofs of death as a condition precedent to recovery, there can be no recovery, where no proofs were made, and there was no waiver of the condition.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1323; Dec. Dig. § 536.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by William H. Gallimore against the American National Insurance Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    W. H. Clark and M. L. Robertson, both of Dallas, for appellant Joseph Utay, of Dallas, for appellee.

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

   HODGES, J.

In this suit the appellee seeks to recover of the appellant the sum of $213.60, claimed as the amount due on a policy of insurance. He also asks for 12 per cent, of the above amount as damages, and $50 as attorney’s fees. On June 13, 1913, the appellee filed what he terms his “first supplemental petition,” but which is in reality an amended original petition. In this pleading he alleges, among other things, as follows: “That on the 6th day of July, 1908, plaintiff was the husband of one Blary Gallimore; that on the same day defendant, in consideration of the payment by said Mary Gallimore to the defendant of the sum of 15 cents, and the further sum of 15 cents to be paid weekly through her natural life, executed and delivered to said Mary Gallimore its policy of insurance in writing, whereby it insured the life of tlie said Mary Gallimore in the sum of $216 for the benefit of plaintiff, and thereby promised to pay and became liable to pay the said sum upon the death of Mary Galli-more. Plaintiff further represents that said Mary Gallimore died on or about the 12th day of May, 1912, and that up to the time of her death all premiums accrued and due upon said policy were paid, save and except the sum of 90 cents, which premiums had been tendered to the defendant on or about the 10th day of May, 1912, and refused by said defendant; that all conditions and provisions of said policy were complied with; that within a reasonable time after the death of the insured, the defendant was given notice of the death of insured, and plaintiff duly demanded from the defendant the amount as contracted for in said policy of insurance, less 90 cents, the amount of premiums then due.” Then follow other allegations, not necessary to be considered in disposing of the questions presented in this appeal.

The answer of the appellant consisted of a general demurrer, what are termed “special exceptions,” and general and special denials. In substance, the defense was the failure to pay the stipulated premiums according to the terms of the policy and to present proofs of death before suit was instituted. It is further alleged that, by reason of the failure to pay the premiums according to its terms, the policy had lapsed, and was not in force at the time of the death of the insured. The paragraphs of the answer referred to as “special exceptions” have none of the essentials necessary to constitute that character of pleading. They point out no part of the contents of the petition as objectionable, but, on the contrary, refer to issues of fact, and therefore cannot be treated as exceptions.

A verdict and judgment were rendered in favor of the plaintiff for the amount of the policy, damages, and attorney’s fees.

Complaint is made of the following charge, of the court: “You are further instructed that, if you find and believe from the evidence that plaintiff paid to the defendant or its agent or empioyé the s.um of $2 on April 15, 1912, and that said agent accepted said money, and that, as such agent, he was authorized to receive money and that he did, in fact, receive such money, then such act was the act of the defendant, and you will find for the plaintiff.” At the time the policy of insurance was issued, the insured was furnished with a book called a “premium receipt book,” in which the premiums made at various times were entered. This book was offered in evidence by the appellee, and showed that premiums had been paid and entered up to and including January 22, 1912. Ap-pellee also offered in evidence two receipts; one dated March 18, 1912, and the other April 15, 1912. Each of those receipts was as follows: ‘.‘Received- from. Wm.. Gallimore $2.00, being the arrears on Policy No.-' which the applicant desires the company to revive. Under no circumstances will the company be liable under said policy in case of death until the policy has been revived on the books of the company and the money credited in the premium receipt book belonging to said policy. [Signed] E. G. Await, Agent.” The following language was indorsed on the end of the receipt: “If the company accepts the revival application the amount paid will be credited in the premium book belonging with the policy; otherwise the money will be returned.” These were the only evidences of any payments made on the premiums due upon the policy. The policy contains, among other provisions, the following:

“4th. This policy shall be void if there is in force upon the life of the insured an industrial policy previously issued by this company, unless the policy first issued is indorsed by the president or secretary authorizing this policy to be in force at the same time; or if any of the representations upon which this policy is issued are not correct; or if the said weekly premium is not paid according to the terms of this contract. If for any cause this policy become void, all premiums paid hereon will be forfeited to the company, except as in the privileges and concessions herein provided for.

“Grace in Payment of Premiums.— Should the insured die while the premiums on this policy are in arrears for a term not exceeding four weeks, the company will pay the benefits provided herein, subject to the conditions of this contract.

“Reinstatement. — -The insured out of benefit may be reinstated upon payment of back premiums in full and upon passing a satisfactory medical examination (but such examination may be waived by the company if' it desires to do so); but the insured will not be entitled to any benefits under this policy unless in sound health and free from, any diseases at the time of such reinstatement; and in case death should occur from any causé whatever within five weeks from, the date of such reinstatement, the company shall not be liable to any extent whatever on. account of such death.”

The testimony offered by the appellant, was to the effect that this policy was lapsed on the books of the company on the 21st day of February, 1912, for the nonpayment of the premiums. This testimony was not disputed!. One of the appellant’s agents admitted that he had received some money from Gallimore-after the policy was lapsed, but stated that, this money was insufficient in amount to pay the arrearage then due, and was received, with the understanding between him and Gallimore that it should be applied on the-premiums when a sufficient amount had been paid over. -The receipts referred to show that the policy had lapsed. There was no-testimony that it-had been revived, or that' a certificate of good health had beenpresént-ed, or that the company had waived the requirements provided for in the policy. The insured died on May 12th, less than five ■weeks after the April payment referred to in the charge. According to the terms of the policy, there was no liability if death occurred within that time, even if the policy had been officially revived. The court therefore erred in assuming, as a matter of law, that the payment of $2 on April 15th restored the insured to good standing in the company.

The appellee, in stating his cause of action, admitted an arrearage of 90 cents, which, according to the terms of the policy, was sufficient to avoid it and forfeit all prior payments. He alleges nothing which tends to excuse the nonpayment of those premiums, or to indicate that a forfeiture was waived. He could not, in the face of this admitted arrearage, recover upon proof tending to show that no arrearage, in fact, existed.

Again, there was no proof of death, as required by the provisions of the policy, nor is there any allegation that such proof was waived. Under the provisions of the policy, that proof was necessary as a condition precedent to a recovery unless waived. Metropolitan Life Ins. Co. v. Wagner, 50 Tex. Civ. App. 233, 109 S. W. 1120; Niagara Ins. Co. v. Lee, 73 Tex. 641, 11 S. W. 1024. If a waiver is relied on, it must be alleged. Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979; St. Paul Fire & Marine Ins. Co. v. Hodge, 30 Tex. Civ. App. 257, 70 S. W. 574, 71 S. W. 386; East Texas Fire Ins. Co. v. Brown, 82 Tex. 631, 18 S. W. 713; 4 Cooley’s Briefs on Ins. p. 3556, and cases cited in notes.

We not only think the charge quoted should not have been given, but that the verdict and judgment are clearly without evidence to sustain them. We are inclined to believe, however, that, under proper pleadings, the ap-pellee may be able to show a right of recovery, and for that reason the judgment will be reversed, and the cause remanded instead of judgment being here rendered for the appellant.

Reversed and remanded.


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    BAKER v. HENEY.
    (Court of Civil Appeals of Texas. San Antonio.
    March 18, 1914.
    Supplemental Opinion, April 1, 1914.)
    1. Boundaries (§ 3) — Description — Relative Importance of Conflicting Evidence.
    Where a description of a survey called for well-established surrounding surveys on all sides, such calls controlled the courses and distances, and the mere fact that by running courses and distances there was an excess was immaterial.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dee. Dig. § 3.]
    2. Boundaries (§ 3) — Description — Relative Importance oe Conflicting Elements.
    In locating land, recourse will be had: First, to natural objects; second, to artificial objects; and, third, to courses and distances.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3^tl; Dec. Dig. § 3.]
    3. Boundaries (§ 6) — Location oe Survey —Reversing Calls.
    In determining the boundary of a survey, the calls may be reversed only1 when the survey was actually made.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 47-57; Dec. Dig. § 6.]
    4. Principal and Agent (§ 34) — Termination — Revocation by Principal — Agency Coupled with Interest.
    A power of attorney, which merely empowered the agent to sell land and turn over the proceeds, the agent having no interest in the land, was not a power coupled with an interest, and hence was revocable.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 55; Dec. Dig. § 34.]
    5. Vendor and Purchaser (§ 342) — Liability oe Cotenant — Sale and Conveyances.
    Where a tenant in common contracts to convey a designated portion of an undivided tract of land, and is unable to do so by reason of such portion falling to another in partition, the remedy of the purchaser is a suit for damages.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1018, 1019; Dec. Dig. ~ 342.]
    6. Compromise and Settlement (§ 6) — Construction oe Agreement.
    Where plaintiff and defendant, two claimants for a tract of land, entered into a compromise agreement, whereby they agreed to sell the_ disputed tract and divide the proceeds, plaintiff could recover under the agreement, though it was afterwards determined that the tract belonged to defendant.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig'. 6.]
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Action by Francis J. Heney against Mary J. Baker. From a judgment for plaintiff, defendant appeals.
    Affirmed in part, and reversed and rendered in part. On motion, former opinion modified, so as to affirm in full.
    W. D. Love, of Uvalde, for appellant. Robt. W. Stayton, of Corpus Christi, and John B. Eddins and Wm. H. Russell, both of Rockport, for appellee.

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

   CARL, J.

Appellee, Francis J. Heney, brought this suit in trespass to try title, against appellant, Mary J. Baker, for about 70 acres of land, a part of the Travis Henderson subdivision of the John W. Paup survey in Aransas county. This Henderson subdivision is alleged to contain 598.74 acres, and Heney had become the owner of an undivided one-third, and Henderson had sold the other two-thirds -to Sartain & Montgomery. Heney and Sartain & Montgomery had partitioned, Heney getting the eastern portion which conflicts with the John E. Elgin survey No. 4. S. F. 6919. Appellant answered by general demurrer, plea of not guilty, and specially pleaded title in herself under the Elgin patent. She also alleged a compromise agreement between herself and Travis Henderson relative to the land in controversy, and impleaded' him, asking for different forms of relief in her alternative prayer. The trial was before the court, and judgment was in favor of appellee, Pleney, for the land and in favor of defendant, Henderson, and Mary J. Baker appeals.

Two matters claim our attention: (1) Does the John W. Baup survey conflict with the Elgin survey? (2) And in the event the Paup survey conflicts with the Elgin survey, did the compromise settlement between Travis Henderson and Mary J. Baker settle such conflicting claims, and, if so, is the appellee bound thereby?

Appellant contends that the survey of the Paup land was an office survey, and that the lines were not actually run out, and that by reversing the calls and starting from the west side instead of the east side, there would be a vacancy to make room for the El-gin survey. The surrounding surveys are as follows: ;

The A. Bergara survey has a marked corner, and appellant contends that we should reverse the calls and take the east line of the Bergara survey as the starting point. Thus by course and distance we would stop the' north line of the Paup at about the • west line of the Elgin. This would leave about 666.5 varas between the Baup and Crocoline surveys which would accommodate the, Elgin junior.'survey. But the Paup survey, calls for the southeast corner of the Williamson survey No. 34 as the beginning point, on the west boundary line of the Crocoline. Thence with this (Crocoline) survey to its southwest corner; thence west to northwest corner of the Hond survey; thence south with Hond to north boundary line of Thomas T. Williamson survey No. 35; thence west with said Williamson survey to a point on the Fessenden survey; thence to northeast corner of Fessenden; thence west 1,039.-93 varas to Bergara survey; thence north to Williamson survey No. 34; thence east with said survey 2,533.74 varas to the place of beginning. The Crocoline, Hond, and Williamson No. 35 are bay front surveys, and well established. So are the Bergara and Fes-senden surveys and Williamson No. 34. All the surveys on the east meander the bay. The Bergara, Fessenden, and two Williamson surveys were made at the same time the Paup survey was made. The Crocoline calls for “thence, leaving the bay due west 1228% varas to southwest corner; thence north 1634i/io varas to the northwest corner.” The northwest corner of the Crocoline is where it intersects the south line of the Carper survey, and Percival, the surveyor, says that he there found some old cuttings, and that this' point is accepted as the northwest corner of the Crocoline. The southwest corner of the Carper survey is marked by a stake and mound in the prairie. The Crocoline survey was patented in 185S, and calls for the southeast corner of the Carper as its northeast corner, which is identified by two bearing trees still 0on the ground. The Bergara survey on the west is located" by an established corner. The established marked lines of other surveys may as well be the subject of calls as any other object. Bolton v. Lann, 16 Tex. 96-110; Ridgell v. Atherton, 107 S. W. 129; Johns v. Schutz, 47 Tex. 578; Buford v. Gray, 51 Tex. 331-335; Booth v. Stripplemann, 26 Tex. 436. And likewise a survey may be located by surrounding surveys. Longoria v. Shaeffer, 77 Tex. 547, 14 S. W. 160. Nor does it'make any difference that there is an excess in one survey where there is a common marked' corner. Bunton v. Cardwell, 53 Tex. 408.

In locating land recourse will be had: First, to natural objects; second, to artificial objects; and, third, to course and distance. Bolton v. Lann, 16 Tex. 96; Ridgell v. Atherton, 107; S. W. 129. Thus it mil b.e seen that of the three, course and distance is of the least importance. ■

Since- the surveys called for by the- Paup are established surveys, and have marked and recognized corners, we conclude that there was no land to' be covered by the Elgin survey. The mere fact that by running course and distance would leave an exeesá would not .alter the case; for we have seen that natural and artificial objects both are superior to calls for course and distance. And since course and distance must yield, tlie | excess, ii any, would belong to the P.aup sur.vey. At any rate, .not to the Elgin, because there was no vacancy there to be patented. • • .

Appellant contends that an actual survey of the Paup tract was never made, and yet maintains that by reversing calls and starting from the Bergara, which is well established and marked, east to proper distance, it would leave an excess so as to accommodate the Elgin survey. Counsel overlook the fact that in order to reverse calls a survey must actually be made. Ayers v. Lancaster, 64 Tex. 305. The calls in the Paup survey start from the east side or Crocoline survey, and it is desired to reverse the calls and start from the Bergara on the west so as to leave the Elgin tract subject to patent. That calls of a survey actually made may be reversed there is no doubt; but appellant says this Paup survey was never made. How then can we reverse the calls? And if we did so, we do not see that it would alter the situation, because the Bergara survey is fixed and the Paup calls for the Cro-coline as its east boundary line, an established line, which would control the call for distance. Here we have both natural and artificial objects, either of which is of superior importance to course and distance.

Travis Henderson bought this land February 24, 1891, and sold an undivided one-third interest in it to John H. Traylor February 15, 1894. Traylor sold to Heney September 19, 1895. Travis Henderson sold his remaining two-thirds interest to Sartain & Montgomery, March 17, 1910, while the joint power of attorney executed by Travis Henderson and Miss Mary J. Baker, authorizing J. M. Hoopes to sell this 71.7 acres for the purpose of settlement, was dated February 5, 1910. That power of attorney to Hoopes runs in part as follows: “Know all men by these presents: That whereas, Travis Henderson, of Lamar county, Texas, claims title to certain lands hereinafter described, by purchase from the heirs of J. W. Paup, and whereas Miss Mary J. Baker, a feme sole, of Cleveland, Ohio, claims title to the same land, by purchase direct from the state of Texas; and whereas said parties are anxious to settle their respective claims to said [land] without the delay and expense incident to litigation; and whereas, there is yet due the state of Texas, from said Miss Mary J. Baker, about $2.00 per acre on said land; and whereas, she is willing to pay the balance due on said land together with the taxes due thereon, and is also willing to accept as her part from the proceeds of the sale of said lands the sum of $15.00 per acre, less the sum which may be due as above mentioned; and whereas, the said Henderson is willing to accept for his interest in said land the sum of $15.00 per acre.” Then follows a description of the 71.7 acres of land in controversy by metes and bounds, and it is recited that there was pending a controversy as to the ownership between Henderson and Miss Baker, and that this arrangement was made to avoid and settle litigation. It directs how the proceeds shall be divided, $15 per acre to Miss Baker, and $15 to Henderson, Miss Baker to pay about $2 per acre to the state.

This is not a power of attorney coupled with an interest, because the power and the interest are not centered in the same person. Hoopes, the attorney in fact, has no interest whatsoever in the property which he is called upon to sell. Where the right or authority to do the act is connected with or flows from an interest in the subject on which the power is to be exercised, the power is said to be “coupled with an interest,” but where it is disconnected from any interest of the donee in the subject-matter, it is a naked power. Tinsley v. Dowell, 87 Tex. 23, 26 S. W. 946; Daugherty v. Moon, 59 Tex. 397; Griffith v. Maxfield, 66 Ark. 513, 51 S. W. 832. The power of attorney was not coupled with an interest, and, as such, could be revoked." But, as a contract of compromise and settlement, it has a peculiar quality which we do not think can be ignored or set aside ex parte.

It will be seen that this is not a contract to convey the land, or any part of it, to either party, and would give Miss Baker no right to sue for the land or an interest therein. On the contrary, it contemplates a sale for the purpose of dividing the proceeds. Henderson could not bind his cotenant, or tenant in common, Heney. Where a tenant in common contracts to convey a designated portion of an undivided tract of land and is unable to do so by reason of such portion falling to another in the partition, the remedy of the purchaser is a suit for damages. Dorn v. Dunham, 24 Tex. 377; Rutherford et al. v. Stamper et al., 60 Tex. 447.

Under the compromise agreement between Mary J. Baker and Travis Henderson, the land was to be sold at not less than $30 per acre, and the proceeds divided, $15 per acre to each. But, out of her part, Miss Baker was to pay $2 per acre due the state, which she did pay. The 71.7 acres of land would come to about $2,151, and, after deducting the amount due the state from Miss Baker’s share, would leave her something .more than $600. She pleaded improvements made in good faith, but in her prayer asked for only $600.

Therefore, since we hold that there was no vacancy where the Elgin survey was located, it follows that, as to appellee, Francis J. Heney, the judgment will be affirmed; but as between the defendants below, Mary J. Baker and Travis Henderson, the judgment of the district court is reversed, and judgment here rendered in favor of Mary J. Baker against Travis Henderson for the sum of $600, together with legal interest thereon from March 17, 1910, until paid, and all costs.

Affirmed in part, and reversed and rendered in part.

Supplemental Opinion.

Upon further investigation of this case we conclude that there is no sufficient assignment of error justifying us in rendering judgment against Travis Henderson for $600 in favor of Mary J. Baker, or for any sum whatever, and therefore set aside the judgment heretofore rendered in this case, and here render judgment affirming in all things the judgment of the trial court.

Judgment affirmed in full.


author: HARPER, C. J.

text:
    CAMP et al. v. SMITH.
    (Court of Civil Appeals of Texas. El Paso.
    March 19, 1914.
    Rehearing Denied April 23, 1914.)
    1.Deeds (§ 70) — Setting Aside — Grounds— FRAUDULENT REPRESENTATIONS.
    Where the false representations of a vendor of school land purchased from the state, that the land had been classified as dry grazing land when purchased, so that the mineral rights were acquired, while a part of the land had been classified as mineral dry grazing land, whereby no title was secured to the minerals, were not a material inducement to the purchaser, and did not influence him in purchasing the entire land, the representations did not justify the setting aside of the deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dee. Dig. § 70.]
    2.Appeal and Eeeoe (§ 1002) — Verdici^-CONCLUSIVENESS.
    A verdict on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.]
    3.Deeds (§ 69) — Setting Aside — Grounds— Mutual Mistake.
    Where the mutual mistake of a vendor and purchaser did not constitute a material inducement to the purchase, the mistake did not justify the setting aside of the deed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 156-164; Dec. Dig. § 69.]
    4. Public Lands (§ 173) — School Lands— Purchase — Title Acquired.
    A purchase of school lands while Rev. St. 1895, § 4218j, prescribing the requisites of an application to purchase, was in force is not invalidated by any mere inaccuracy in describing the classification of the land which was mere surplusage, as the law then in force did not require any statement of classification; and the subsequent Acts 30th Leg. (1st Ex. Sess.) c. 20, § 6f, requiring the reservation of mineral rights, does not apply to the purchase.'
    [Ed. Note. — For other cases, Lands, Cent. Dig. §§ 544-551; 173.] see Public Dec. Dig. §
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Action by J. B. Smith against A. L. Camp and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Buck & Starley, of Pecos, and A. L. Oamp, of Et. Worth, for appellants. Howard & De Armond, of Midland, Hudson & Canon, of Pecos, and J. B. Atkeson, of Artesia, N. M., for appellee.

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

   HARPER, C. J.

This suit was brought by appellee against appellants A. L. Camp and G. G. Nesbitt upon four vendor’s lien notes for $1,313 each, and to foreclose the lien upon sections 14 and 15, and the E. % of section 11, block 70, public school lands in Reeves county, Tex., and against Sallie Land Nesbitt, H. H. Lockett, trustee, Toyah Oil & Pipe Company, B. C. Girdley, trustee, et al., E. E. Kirby, the First National Bank of Las Cruces, N. M., Oscar Snow, trustee, and G. Engel, to bar any claim they might have in or to said lands.

Appellants Camp and Nesbitt answered separately, each by general denial, and specially by sworn plea of fraud and failure of consideration, and alleged in substance: That the said lands were school lands, purchased by the appellee, and that in the sale to them appellee had fraudulently represented said lands to have been classified, when he purchased them, as dry grazing, and that he had purchased said lands as dry grazing lands, and had thereby acquired the mineral rights thereon and thereto, and the appellants would acquire such mineral rights to said lands by purchase from him. That appellants were ignorant of the true classification of said' lands, and relied upon such representations, and had no notice to the contrary until long after said sale, when it was discovered that the E. % of section 11 was classified, when ap-pellee purchased the same, as mineral dry grazing, and that thereby appellee had failed to secure any title thereto, or to the minerals thereon, if he secured the surface rights. That the purchase was as a whole, and that the lands were purchased for the mineral rights thereon, and that, without such mineral rights, they were not worth what appel-lee had paid for the same to the state, and that appellants would not have purchased any of said lands had they known that the same, or any part thereof, did not carry the mineral rights. That the purchase was as a whole, and asking a rescission of the contract, and, in the alternative, for a credit for the amount paid for said quarter of section 11. The other defendants either filed disclaimers or defaulted. The trial was had before a jury on May 16, 1913, and the court submitted the case on special issues. Appellee made motion to set aside the findings. The court overruled appellants’ motion, and entered judgment for appellee for the entire debt and foreclosure of vendor’s lien against appellants, and barring all the rights of the other defendants. Appellants filed motion for new trial, which being overruled, they appealed with appeal and supersedeas bond.

The case was submitted upon special issues. Questions and answers are as follows:

“First. Did appellee make the representations at or prior to the date of the deed that all the lands were classified as dry grazing lands when he purchased? Answered: Yes.
“Second. If yes, did appellants rely thereon? Answered: No.
“Third. Was the E. % of section 11 classified in the Land Office on April 1, 1907, as mineral dry grazing land? Answered: No.
“Fourth. Did appellants know at the date they accepted appellee’s deed that said % of section 11 was classified as mineral dry grazing in the Land Office at the time appellee purchased such tract from the state of Texas? Answered: No.
“Fifth. Was the land purchased as a whole or by the acre? Answered: By the acre.”

Second assignment charges that the court erred in submitting the second question in the special issués to the jury, and rendering judgment thereon, because the uncontradieted evidence was that plaintiff represented to these defendants prior to the purchase of the lands that all of said lands were classified as dry grazing at the time he purchased same, and that thereby he secured the minerals, that the defendants believed said representations, and acted upon them, and would not have purchased the lands but for such representations, for the object in purchasing the lands was to secure the minerals, etc.

The uncontradieted evidence is not as asserted by appellants in this assignment. The pleadings and evidence raise the issue as to whether or not the plaintiff’s title from the state carried the minerals, and the controlling question in this ease is: Did the fact that the E. % of section 11, block 70, did not carry the mineral rights (as represented by appellee, so found by the jury) constitute a material inducement to appellants, and influence them (under all the facts and circumstances surrounding the transaction at the time of the trade, and having reference thereto) in purchasing the entire land? Culberson v. Blanchard, 79 Tex. 486, 15 S. W. 700. And question No. 2 in effect submitted this question to the jury, and they answered it in the negative, and the surrounding facts and circumstances strongly indicate that such finding is correct.

The evidence was conflicting, at least, and, where it is, the verdict will not be set aside upon appeal. Texas Standard Cotton Oil Co. v. Hanlon, 79 Tex. 678, 15 S. W. 703.

The third assignment charges that the court erred in not disregarding answer, to same; question is disposed of by what is said next above.

The fourth and fifth assignments charge that the judgment is contrary to the law and evidence, because the uncontro-verted evidence shows mutual mistake as to said E. % of section 11 carrying the mineral rights. The court might have assumed or have charged that there was mutual mistake in this respect; but, if there was evidence to sustain the verdict of the jury that such mutual mistake did not constitute a material inducement to the purchase, as in this case, it would not be reason for setting aside the sale.

The seventh assignment charges that the court erred in not setting aside the answer to question No. 3 under the proposition that they are ambiguous and contradictory, etc.

As said above, it matters not how the land was classified, or what representations were made, or even if both parties were mutually mistaken as to the classification, the mineral rights, etc., if they did not constitute a material inducement to the purchase.

Since assignments 9 and 10 are addressed to the same matters, they are likewise overruled for the reasons given above.

The eleventh assignment is as follows: “Because the verdict and judgment are contrary to the law and the evidence in this: The uncontradieted evidence is that plaintiff applied to buy E. % of section 11 as dry grazing land, when same was classified as mineral land, and without any waiver of the mineral, and that his application and the award thereon were void, and he had no title to said tract when he conveyed same to the defendant, and thereby the consideration pro tanto failed to said notes, and the court should have allowed the $800 paid for said tract as a credit upon the notes sued upon, which was not done, and because there was a failure of consideration on said tract to extent of $800 and interest, even though plaintiff obtained the surface rights by his application, and said judgment does not allow same, but is for the full amount of said notes, and is excessive.”

The uncontradieted evidence discloses that, at the date of the sale of this land to Smith by commission of the Land Office, it was classified on the records of the Land Office as mineral dry grazing. The application to purchase same by Smith stated that same was classified as dry grazing, and did not contain any waiver of the mineral rights. At the time this tract of land was purchased, the requisites of an application to purchase school land were controlled by article 42I8j, Revised Statutes of 1895. In this article there is no requirement whatever that the classification of the land shall be stated, or that in applications to purchase mineral lands there should be any reservation of the mineral right to the state. The incorrect statement of the classification did not affect the validity of the sale, because there is nothing in the law requiring any statement with reference to the classification whatever to be made in the application to purchase or waiver of the mineral rights by the purchaser. Section 6f of the Acts of the 30th Legislature 1907, p. 495, cited and relied upon by Camp, did not become effective until August 16, 1907—several months after Smith purchased the land. Section 6f of this act is the first provision in the law that sales of land classified as mineral should have the reservation stated in tire application to purchase. If the land had been purchased subsequent to the passage of this act, then the authorities cited by appellant, viz.: Gracey v. Hendricks, 93 Tex. 26, 51 S. W. 846; Bowerman v. Pope, 25 Tex. Civ. App. 79, 61 S. W. 330, 75 S. W. 1093; Burnam v. Terrell, 97 Tex. 309, 78 S. W. 500—would be in point. In other words, the applications to purchase by Smith were in accordance with 4218j, Revised Statutes of 1895, and, since this law did not require the applications' to specify the classification, and did not require any waiver of the mineral rights, the sale was valid; the mere inaccuracy in describing the classification was of nó consequence, as it was surplusage, and, had it been omitted entirely, it would not have affected the sale. Section 6f, Acts of 1907, p. 495, relied upon by appellant, expressly requiring the reservation of the mineral rights, was not effective at the time Smith applied to purchase, and therefore the cases cited have no. application.

For the reasons indicated, the assignments are overruled, and judgment affirmed.


author: FLY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. WAGNER.

    (Court of Civil Appeals of Texas. San Antonio.
    March 4, 1914.
    On Motion for Rehearing, April 22, 1914.)
    1. Appeal and Error (§ 1040) — Review-Rulings on Pleadings — Prejudice.
    In an action for injuries to a railroad brakeman from defendant’s violation of the safety appliance law, defendant was not prejudiced by the sustaining of exceptions to the part of its answer applying the federal law concerning automatic couplers, and alleging that its couplers had to be adjusted at times in order to be coupled by impact, etc., since the federal and state statutes on that subject are practically the same; the court having submitted all the issues that could arise under either to the jury.
    [Ed. Note. — For other cases, see Appeal and Error^ Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    2. MASTER AND SERVANT (§ 111) — INJURIES to Servant — Railroads — Safety Appliance Acts — Automatic Couplers.
    The equipment of a railroad engine and cars with automatic couplers, requiring brakemen to go between the cars to adjust them so that they will couple by impact, is not a compliance with either the federal or state law (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), making it unlawful for any railroad company engaged in interstate commerce in the one case, and intrastate commerce in the other, to haul or permit to be hauled on its railroad any engine or car not equipped with couplers “coupling automatically .by impact,” and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, or cars.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.]
    3. Master and Servant '(§ 264) — Injuries . to Servant — Railroads — Safety Appliance Acts — Violation—Pleading.
    In an action for injuries to a railroad brakeman by defendant’s violation of the safety appliance acts (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), evidence that the automatic couplers with which the engine and car in question were equipped had to be adjusted at times in order to be coupled by impact, and that such adjustment could be made with safety if the cars were not in motion, but that plaintiff sought to adjust the coupling when the engine was moving toward the car to .be coupled, was admissible under defendant’s general denial.
    [Éd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.]
    4. Master and Servant (§§ 204, 228) — Injuries to Servant — Brakemen—Safety Appliance Acts — Violation — Contributory Negligence — Assumed Risk.
    In an action for injuries to a railroad brakeman by defendant’s violation of the safety appliance- acts (U. S. Comp. St-. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), neither assumed risk no? contributory negligence was a defense.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig."§§ 544-546, 670, 671; Dec. Dig. §§ 204, 228.]
    5.- Evidence (§ 471) — Conclusions—“Injuries to Servant — Railroads—Safety Appliance Acts.
    In an action for injuries to a railroad brakeman by his foot becoming caught between the couplers of an engine and ear as he was endeavoring to adjust the same in order that it might couple by impact, evidence that it was necessary to push the drawhead over so as to make the coupling was not objectionable, as a conclusion.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.]
    6. Evidence (§ 539%) — Opinion Evidence-Experts.
    Plaintiff, a railroad brakeman, held qualified to testify, as an expert, that at the time of his injury, while coupling an engine to a car, it was necessary to push the drawhead over in order that the coupling might be made by impact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539y2-]
    7. Evidence (§ 546) — Impeachment—Testimony in Other Cases.
    A stenographer’s transcript of the testimony of a physician in another case could not be used as a basis to attack the physician’s competency to testify in the case on trial.
    [Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2363; Dec. Dig. § 546.]
    8. Trial (§ 125) — Argument of Counsel.
    In an action for injuries to a railroad brakeman, argument of plaintiff’s counsel that the jury should give plaintiff every cent it possibly could “under the pleadings and evidence,” that they could not make a mistake in giving him too much “under the evidence,” for, if they did, the court would cut it down, but, if they made the verdict too low, it could not be raised, was prejudicial error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.]
    9. Damages (§ 132) — Excessiveness — Personal Injuries.
    Plaintiff, a railroad brakeman, was injured by getting his - foot caught- in an automatic coupler as he was endeavoring to push the drawhead over so as to make the coupling. He lost the toes on one foot, and received, other painful and permanent injuries. Held, that a verdict for more than $10,000 was excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]

      On Motion for Rehearing.
    10. Master and Servant (§ 111) — Injuries to Servant — Railroads — Safety Appliance Acts — Failure to Comply.
    Failure of a railroad company to equip its engines and cars with couplers that will couple automatically by impact, without requiring brakemen to go between the cars to adjust the same, as required by safety appliance acts (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), is negligence per se.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. §.111.]
    11. Master and Servant (§ 256) — Injuries to Servant — Railroads — Safety Appliance Acts — Interstate Commerce..
    Where, in an action for injuries to a railroad brakeman while adjusting an automatic coupler so that the same would couple by impact, the petition alleged that defendant was engaged in interstate and intrastate commerce, and that it used on its .railroad in such commerce an engine and car, and that it became the duty of plaintiff then and there to couple the engine and car together, such allegation was sufficient to show that defendant was engaged in interstate commerce.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.]
    12. Master and Servant (§ 258) — Injuries to Servant — Railroads—Brakeman—Safety Appliance Acts — Petition.
    A petition by a brakeman injured by catching his foot in an automatic coupler while endeavoring to adjust the same, alleged that the coupler attached to the engine and car to be coupled would not couple automatically by impact, as required by law, and that, to make the coupling, it was necessary to stand on the foot-board of the engine between the engine and the car, and push the drawbar on the engine over so as to make‘the coupling, sufficiently charged that the coupler on the engine was defective, and not a compliance with the safety appliance acts (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710).
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816^-836; Dec. Dig. § 258.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by William Wagner against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.
    Rehearing denied.
    Houston, Boyle & Storey, of San Antonio, for appellant. John Sehorn, of San Antonio, for appellee.

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

       Writ of error pending in Supreme Court.

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

   FLY, C. J.

Appellee sued to recover damages arising from personal injuries inflicted on him through the negligence of appellant. It was alleged that appellee was a brakeman in the employment of appellant, and, while engaged in coupling a locomotive and ear, it became necessary for him to stand on the footboard of the engine, between it and the car, and shove the knuckle of the coupler on the engine so as to put it in position to be coupled to the car, and, while so engaged, he slipped and fell, and his left foot was caught between the couplers and was crushed and mangled, and that he was otherwise seriously; painfully, and permanently injured. It was charged that appellant was negligent in having couplers which would not couple’ by impact, as required by law, and that such negligence was the direct and proximate cause of appellee’s injuries. The evidence developed the fact that appellee was injured, as alleged, through the negligence of appellant in not having its cars properly equipped with couplers. that would couple by impact, and prevent the necessity of going between the ears to couple them.

The first assignment of error assails the ruling of the trial judge in sustaining exceptions to that part of appellant’s answer which pleaded the federal law as to couplers, and, further, that its couplers had to be adjusted at times in order to be coupled by impact, that the work of adjusting the couplers could have been done with perfect safety if the cars had been standing, but that appellee sought to adjust the coupler when the engine was moving towards the car. The assignment is overruled. If, as contended by appellant, the federal law as to couplers was applicable to this case, appellant was not injured by having the pleading as to that statute stricken out, because the federal and state statutes are practically the same, and all of the issues that could arise under either were submitted to the jury: The federal act of 1893 made it unlawful for railroad companies to haul or permit to be hauled or used on their railroad any car in interstate traffic “not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” U. S. Comp. St. 1901, p. 3174. The Texas law (article 6710, Rev. St. 1911) makes it unlawful for any railroad company engaged in intrastate commerce “to haul or permit to be hauled or used on its line of railroad within the state of Texas any locomotive, tender, car or similar vehicle employed in moving intrastate traffic within the said state, which is not equipped with couplers coupling automatically by impact and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, cars and similar vehicles.” The state law seems to be more comprehensive than the law of Congress, but the decisions of the Supreme Court of the United States have construed the federal statute so as to render it fully as comprehensive as that of the state. The' substance of those decisions has been embodied in the Texas statute along with the plain provisions of the federal statute.

As substantiating the statement that the federal decisions have read into the federal statute every provision in the state statute not mentioned in terms in the federal statute, we cite the case of Johnson v. So. Pac. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, in which it was held that locomotives are embraced, in tbe words “any car” -used in the statute, and that the provision of the statute that cars should have couplers “which can be uncoupled without men going between the ends of the cars included coupling as well as uncoupling.”

The rejected answer admitted that the couplers were such as required adjustment in order to couple, and that the adjustment had to be made between the cars, and sought to excuse itself on the ground that appellee should not have attempted to make the adjustment while the cars were in motion. The statutes, federal, and state, will not bear the construction that couplers are sufficient that require adjustment by going between the cars. The object of the statutes was to obviate the necessity of men going between cars to couple them, whether moving or standing. To quote the language used in Johnson v. Southern Pacific Company, herein cited: “The object was to protect the lives and limbs of railroad employes by rendering it unnecessary for a man operating the couplers to go between the ends of the ears. * * * The primary object of the act was to promote the public welfare by securing the safety of employes and travelers.” If men were required to go between “the ends of cars,” whether standing or moving, in order to adjust the couplers, neither the federal nor state law was complied with. They did not act automatically if they required that a man should go between the ends of cars to adjust the couplers before they would act. The couplers on the car and engine had failed to act when brought together, and appellee was injured while trying to adjust the coupler on the engine so that it would couple. Merely putting couplers on the cars did not meet the requirements of the law, but they must be in such condition as to couple by impact. So it was held in the Johnson Case herein cited.

It is insisted by appellant that it was prevented by the answer being stricken out-from proving that the engine and car were equipped as required by law, but the statement of facts contains testimony to that effect introduced by appellant. Under the general denial appellant could have shown all that it pleaded in regard to its couplers, and it was permitted to prove all that it offered on the subject.

Under the facts of this case, neither proof of assumed risk nor of contributory negligence offered any defense. The un'controverted evidence showed that, if the engine had been equipped with a lever by which the coupler could have been adjusted without the necessity of going between it and the car, there would have been no accident. If appellant’s answer had been permitted to stand, it could have availed it nothing, for its admissions that it was necessary to go between the cars to adjust the couplers was an admission that it was guilty of a violation of federal and state law, and no plea of contributory negligence or assumed risk could relieve it of liability. Articles 6649 and 6650, Rev. St. 1911; Compiled Stats. U. S. of 1901, p. 3174; Act of Congress April 22, 1908 (U. S. Comp. St. Supp. 1911, p. 1323). Whenever injury or death is caused by a failure to comply with the demands of the safety appliance laws, there is absolutely no defense that can be presented by the railroad company. Railway v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061; Railway v. United States, 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582; Mondou v. Railway, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 144; Winfree v. Railway, 227 U. S. 296, 33 Sup. Ct. 273, 57 L. Ed. 518.

There were but two issues in this case, which were submitted to the jury by the court; the first being whether the engine was equipped with such couplers as the law requires, and, if not, was the failure to have it so equipped the proximate cause of the injuries inflicted upon appellee? The court very properly refused to allow other issues, proposed in the special charges requested by appellant, to be interpolated into the case. The only defense that could be presented was that the locomotive was equipped as required by law, and that defense was presented by the court. All of the assignments presenting complaints as to the refusal to give the special charges are overruled.

The evidence of appellee as to the necessity of shoving the drawhea drover so as to make the coupling was the statement of a fact, but, if it was an opinion, It was the opinion of one who was qualified as an expert, and it was admissible. Appellee stated that he saw that the drawhead “was shifted way over to my side, and I reached up with my left foot to shift it over so it would couple. * * * If I had not shoved that drawhead over, it would have slipped by and probably have mashed me through here (indicating hips).” None of that testimony was objected to, although it was, in substance, the same as that to which objection was urged, because it showed the necessity for pushing the drawhead. Appellee had been employed as a brakeman by appellant for 13 months, and had worked as a brakeman for 8 years, and was acquainted with the operation of couplers.

A stenographer’s report of what witnesses may have testified in other cases could not be used to question the competency of a doctor who testified in the other cases as well as in this. The cases cited by appellant have reference to the stenographer’s report of the testimony of a witness, sought to be impeached, on a former trial of the same cause. No decision is submitted holding that the evidence of third parties on a collateral issue in the trial of a different case could be used to impeach a witness in the instant case.

In his closing argument to the jury, appellee’s counsel used the following language: “I want this jury to give the' plaintiff every cent that it possibly can, under the pleadings and evidence. You cannot make a mistake in giving him too much, under the evidence. If you do, the court has the power, and it is his duty, to cut it down; but, if you make it too low, even if your verdict, should be for §5, there is no power in this court to add even a single postage stamp. Therefore I again ask you to make your verdict as high as you possibly can under the evidence, as you can make no mistake in that direction.” The language is decidedly improper, and should have been rebuked by the court. Using the expression “under the pleadings and the evidence” did not eradicate the poison that was injected by the appeal to place the responsibility of the amount of the verdict on the trial judge. A very similar argument was condemned in the case of Railway v. Nesbit, 40 Tex. Civ. App. 209, 88 S. W. 891. In that case the attorney said: “If you should give a verdict that is too small, it would not be raised up, but, if you should give a verdict that is too large, the appellate court will correct it by cutting it down. Therefore, if you err, you should err on the side that can be corrected by the appellate court. * * * I am not going to make any mistake, and I will state that it is primarily your duty to assess the damages in this case in accordance with the charge of the court and the evidence; but, while this is true, if you make a mistake and allow him too much, the appellate court will correct it.” The Court of Civil Appeals said: “The task of revising jury verdicts in matters of amount is both difficult and delicate, and it ought not to be rendered more so by an invitation to the jury to resolve all doubts in favor of a large verdict, thus passing up to the trial judge and to this court a duty which is not only primarily, but finally, theirs. * * * Such language is a most insidious temptation to a jury, and it is doubtful if its effect can be withdrawn by any action on the part of the trial court.” In that case the trial judge, by both verbal and written instruction, sought to prevent the jury from considering the language. In this case no effort was made to withdraw the language from consideration, but objections to it were, overruled. The size of the verdict shows an active response to the appeal of appellee’s counsel. Appellee claims there was no error in the argument, because the jury were advised to bring in a large verdict “under the pleadings and the evidence,” but that could not remove the force of the argument to the effect that the jury should shift the responsibility of a heavy verdict to the trial judge. In the Nesbit Case the jury was told that it was their duty to assess the damages “in accordance with the charge of the court and the evidence.”

This court is burdened too -much with the onerous duty of passing upon the question of excess in verdicts when brought up in a legitimate manner, and that burden must not be increased by deliberately inviting the jury to bring in excessive verdicts and speculate on the Court of Civil Appeals allowing the amounts to stand or cut them down to reasonable sums. The jury in this instance was told that it was the duty of the trial judge to reduce excessive verdicts, and that was true, but it was not exercised in this case. Trial judges seem adverse to exercising the power intrusted to them in connection with verdicts, and usually shift the responsibility, shifted to them by the jury, to the Court of Civil Appeals, the court of ultimate resort in such matters. To reasonably reduce a verdict as this was secured seems to be doing what' counsel expected and maneuvered to obtain, and the court in the Nesbit Case refused to entertain the proposition to cut down the verdict. This court, however, has in several instances sought to remedy the injury inflicted by improper argument by compelling a remittitur. Producers’ Oil Co. v. Barnes, 120 S. W. 1023; De La Vergne Co. v. Stahl, 24 Tex. Civ. App. 471, 60 S. W. 319; W. U. Tel. Co. v. Perry, 30 Tex. Civ. App. 243, 70 S. W. 439. The argument in this case, as in those cited, could have affected nothing except the amount of the verdict. There were over half of the jury that at first favored a verdict for $10,000 and that, under the facts, we deem sufficient to compensate appellee for the loss of his toes on one foot and the other injuries received.

The twenty-fourth assignment of error, which seeks to present improper conduct of the jury in arriving at a verdict, is not followed by such a statement as is required by the rules. It has been held time and again that a reference to a bill of exceptions in* the record is not sufficient. Griffin v. State, 147 S. W. 328; Gibson v. Oppenheimer, 154 S. W. 694.

The case of Morris v. Railway, 158 S. W. 1055, is cited by appellant as deciding that a defective coupler that required adjustment before it would couple did not come under the condemnation of state or federal law. The decision in that case can be justified only by the fact stated that it was not shown that the coupler could not have been adjusted without going between the engine and the car. If the opinion can be construed into holding that a railroad company is under no obligation to keep its coupler in such condition as to couple by impact, without the necessity of any one going between the ends of the cars, it is in direct conflict with state and federal decisions which construe the act of Congress. Thornton, Federal Employer Act, p. 293; Railway v. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264. “The true intent and meaning of the statute is not merely that the cars, etc., used in moving interstate commerce shall be equipped with automatic couplers of th§ description therein mentioned, but also that such couplers shall be in such condition as to be used automatically while such cars are so engaged.” Winkler v. Railway, 4 Pennewill (Del.) 80, 53 Atl. 90; United States v. Railroad, 177 Fed. 801, 101 C. C. A. 15; United States v. Railway (D. C.) 160 Fed. 696. See numerous cases reported in Appendix to Thornton Fed. Emp. Liability & Safety App. Acts, pp. 396 to 710. We do not think that the Court of Civil Appeals of the Sixth District intended to hold anything except that the proof in that case failed to show that the coupler to the engine could not have been adjusted without going between the engine and car. In this case, however, the proof is positive that it was absolutely-necessary for appellee to go between the engine and car to adjust the coupler. Appellant in its pleadings practically admitted that the coupler could not be adjusted without going between the engine and car.

If a remittitur of $5,000 is filed by appellee within ten days, the judgment will be affirmed; otherwise, it will be reversed, and the cause remanded.

On Motion lor Rehearing.

Appellant states its inability to find any fact or facts showing any act of negligence on its part which created ,a necessity for ap-pellee placing his foot between the engine and the car in order to couple it. Appellee swore to the necessity, and appellant, in its brief, seeks to justify its failure to have the coupler arranged so that it could be coupled from the outside by the claim that appellee should have stopped the engine, made the adjustment, and then started it up again. The courts do not seem to agree with the contention of appellant; but it is held that the safety appliance act is violated if, “in order to open the knuckle when preparing the coupler for use, it was reasonably necessary for a man to place part of his body, his arm, or his leg in a hazardous position.” United States v. Railway (D. C.) 167 Fed. 695. If the, law was violated by appellant, as, in effect, is admitted, then, no matter how guilty of contributory negligence appellee may have been, appellant is liable. “The- statute concerning the coupling devices requires that the automatic coupler in use must be operative for each car as to the device of that particular car, so that an employé of a railroad company would not have to go to another car to make the uncoupling of the car in question.” Railway v. United States, 168 Fed. 1, 93 C. C. A. 393; U. S. v. Railway (D. C.) 162 Fed. 403. It is not contended that the locomotive had any device on the outside by which its coupler could be regulated, the only claim being that appellee should have stopped the engine in order to adjust the coupler of the car. The statute of the United States provides: “That no such employé who may. be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation of such person or corporation so operating such railroad of any • statute for the safety of em-ployés contributed to the injury or death of such employé.” The statute is too plain to require construction. If appellant did not have the coupler on its engine so arranged that it could be adjusted from the outside, it violated the law, and it does not matter what appellee may have done, if the defective coupler. contributed to his injury, and appellant is liable. Thornton, Safety Appliance Act, § 222; Johnson v. Railway, 178 Fed. 643, 102 C. C. A. 89; Mondou v. Railway, 223 U. S. 1, at page 49, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44. As said by the Supreme Court in Railway v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061: “If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it.”

By the act of 1908, Congress made the doctrine of comparative negligence applicable to all cases based on the negligence of the railroad and contributory negligence of the injured party, except in cases where the injury is inflicted or the death caused through a violation of the safety appliance act. In the last class of cases the defense of contributory negligence is wholly abolished. Richey, Fed. Employers’ Liability Act, p. 39; Horton v. Railroad, 157 N. C. 146, 72 S. E. 958. The same rule applies to assumed risk, and authorities on that subject are also authorities on the question of contributory negligence. Freeman v. Powell, 144 S. W. 1033; Colasurdo v. Central R. R. Co. (C. C.) 180 Fed. 832, and 192 Fed. 901, 113 C. C. A. 379.

It was not shown that there was a hand lever on the engine, and therefore appellee could not use it, and using the hand lever on the car to which,the engine was to be coupled, if there was such lever, would not have adjusted the defective coupler on the engine. It may have been contributory negligence for him to kick the defective knuckle, but that would not be a defense, bécause the defective coupling on the engine contributed to the injury.

Excerpts are made from what is denominated the “stenographer’s transcript,” but no such document has been filed in this court or will be filed in it This cause has been considered on the agreed statement of facts, approved by the trial judge, and the effect of such statement of facts cannot be impaired or destroyed by a document not filed among the papers, and which has no place among the papers. The statement of facts bears out the statement of this court that appellant was permitted to introduce all the testimony it desired on the subject of the coupler on the engine. The record fails to show that any testimony offered by appellant was withdrawn by the court from the jury. In the ninth assignment of error it is stated that “the undisputed evidence in this case shows that the coupling apparatus on the car had' been adjusted prior to the time of the accident, and it was, at the time of the accident, equipped with couplers coupling automatically by impact.” There is no bill of exception as to any refusal to permit testimony as to the condition of the coupler on the engine. As a matter of fact, the engineer testified about the coupler on the engine, and the inspector about the coupler on the car. The inspector also stated that the engine and car should have coupled-automatically by impact, and, “if they do not couple with the automatic, they are not in proper condition.” And yet, in the face of that testimony by one of its own witnesses, appellant says: “There is not one line of evidence in the record which shows that' appellant did not have its cars properly equipped with couplers that would couple by impact; if there be such evidence, we have overlooked it.” The evidence of the inspector, taken in connection with the uncontroverted evidence that the car and engine did not couple by impact, shows that the couplers were not in proper condition. Appellee also swore that the coupler on the engine was not in proper condition. He fixed the coupler on the car, which was also out of order, and, in attempting to fix the coupler on the ear, he fell and was injured. The evidence is ample to show that the couplers were not in repair.

The petition alleged “that the defendant was negligent in having and permitting the couplers on said engine and car to be so that they would not couple automatically, as required by law,” and that was sufficient to charge a failure to comply with the safety appliance act. A failure to have couplers that would couple automatically by impact was a violation of law, and was negligence per se.

The .Congress of the United States, and not the courts, have passed the law that “effectually ties the hands of every carrier in the state.” Our construction of the law may be a harsh one, but, as said by the Supreme Court in the Taylor Case, hereinbefore cited: “It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body.”

It is significant that the inspector examined the car to which the engine was to be coupled, but did not inspect the coupler that was responsible for the accident. He testified fully as to the condition of the car coupler, but not one word as to the engine. Although the conductor was told by appellee how he was hurt, he made no examination of the locomotive. He said that he left that for the inspector, and that employé was not in a position to inspect because the engine had been sent off. Appellant did not offer to show that the coupler on the engine could have been adjusted from the side, but virtually admits that it could not have been adjusted, except by stopping it. Pulling a lever on the car would not have fixed the defective coupler on the engine. It was the latter that was out of adjustment, and pulling the hand levers of all the ears in the train would not have adjusted the engine coupler. The evidence showed that it could not be adjusted except by a man going between it and the car.

Appellant quotes largely in its brief from cases which arose before the law as to contributory negligence was enacted. The cases cited by appellant in its motion have no bearing on this case. In Southern Ry. Co. v. Snyder, 205 Fed. 868, 124 C. C. A. 60, it is distinctly held that the accident occurred before the act of 1908. That act absolutely removes contributory negligence as a defense in cases of injuries arising from defective safety appliances provided for in the employers’ liability act.

The petition alleged that appellant was engaged in interstate and intrastate commerce, and that it “used on said railroad in interstate commerce and intrastate commerce a certain engine and a certain ear; and it became and was the duty of plaintiff then and there to couple the aforesaid engine and car together.” The allegation was sufficient to show that appellant was engaged in interstate commerce.

In connection with the claim that there was no allegation as to defect in the couplers that brought them within the scope of the statute, we copy the following from the petition: “Plaintiff avers that the coupler attached to said engine and car would not couple automatically by impact, as required by law; and, for the purpose of making said coupling, it became necessary for plaintiff to stand upon the footboard of said' engine, between said engine and car, and to shove the knuckle of the coupler on said engine so as to make the coupling as aforesaid.”

The motion for rehearing is overruled.


author: WILLSON, C. J.

text:
    JESSE FRENCH PIANO & ORGAN CO. et al. v. ELLIOTT.
    (Court of Civil Appeals of Texas. Texarkana.
    April 2, 1914.)
    1. Appear and Error (§ 895)—Effect of Failure to Give Security or Make Affidavit.
    Under Rev. St. 1911, art. 2098, providing that, where appellant or plaintiff in error is unable to pay or secure the costs of appeal, he may appeal upon making strict proof of his inability to pay the costs of appeal before the county judge or the court trying the case, a writ of error would be dismissed where plaintiff in error neither filed an appeal bond nor, in lieu thereof, made proof of her inability to pay the costs.
    (Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 206<L-2070, 2085. 2086, 3127; Dec. Dig. § 395.]
    2. Appeal and Error (§ 389) — Security por Costs — Appidavit op Inability to Pay Costs.
    Under Rev. St. 1911, art. 2098, requiring proof of appellant’s inability to pay the costs of the appeal to be made before the county judge, or court which tried the cause, an affidavit made by appellant’s attorney before a notary public was insufficient.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.]
    3. Appeal and Error (§ 389) — Security for Costs — Affidavits.
    Rev. St. 1911, art. 2104, authorizing an appellate court to allow the appellant to amend a defective appeal'bond by filing a new bond, does not authorize the. filing of a new affidavit of plaintiff in error’s inability to pay the costs on appeal, in lieu of a defective affidavit filed with the petition in error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2072-2076; Dec. Dig. § 389.]
    4. Chattel Mortgages (§ 161) — Possession of Property — Provisions of Mortgage.
    A provision of a chattel mortgage, authorizing the mortgagee to take possession of the mortgaged property, wherever it might be found, and sell it at private or public sale upon default or if the mortgagee felt unsafe or insecure before maturity of the security debt, was valid and entitled the mortgagee to take possession without the mortgagor’s consent, if he could do so peaceably.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 282-285; Dec. Dig. § 161.]
    5. Chattel Mortgages (§ 147) — Rights of Mortgagees as Against Third Persons.
    A party to whom mortgaged pianos were delivered by the mortgagor for tuning and repairs had no right to retain possession until its charges for storage, tuning, and repairs were paid, as against a mortgagee, whose mortgage entitled him to take possession at any time, where it knew of the mortgage, and he did not agree that the pianos might be placed with it for repairs and tuning.

      .[E’d. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 242; Dec. Dig. § 147.]
    6. Chattel Mortgages (§ 173) — Actions between Mortgagee and Third Person— Sufficiency of Evidence.
    In an action for conversion by a chattel mortgagee of pianos against a party which claimed the right to hold them until its charges for tuning, storage, and repairs were paid, evidence held insufficient to show that possession of the pianos was delivered to it by. the mortgagor, assuming that that would entitle it to retain possession.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. § 173.]
    7. Chattel Mortgages (§ 170) — Acts Constituting Conversion — Refusal to Deliver on Demand.
    A party who acquired possession of mortgaged pianos without the consent of either the mortgagor or mortgagee had no right to refuse to deliver them to the mortgagee, whose mort- ' gage entitled him to take possession at any time,, unless its charges for storage, tuning, and repairs were paid, and unless the mortgagor consented to such delivery, and by so refusing it converted them and became liable for their value.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dec. Dig. § 170.].
    Error to District Court, Dallas County; Kenneth Foree, Judge.
    Action by J. T. Elliott against the Jesse French Piano & Organ Company and Nida H. Hopkins. Judgment for plaintiff, and defendants bring error.
    Writ of error sued out. by the defendant Hopkins dismissed. Judgment affirmed as to defendant company.
    The suit was by Elliott against Miss Nida H. Hopkins and the Jesse French Piano & Organ Company. As against Miss Hopkins, Elliott sought a recovery for a balance due and unpaid on a promissory note for $1,500, interest and attorney’s fees in his favor, made by her April 24, 1908, and, as against the piano and organ company, a recovery of the value of three Ivers & Pond pianos and two Starr pianos, which he alleged Miss Hopkins had mortgaged and conveyed to him as security for the payment of the note, and which, he further alleged, the piano and organ company had wrongfully converted to its own use. As alternative relief, in the event it was determined the piano and organ company had not converted the pianos, Elliott sought, as against both it and Miss Hopkins, a foreclosure of the mortgage liens he asserted against the pianos. The trial of the cause in the court below resulted in a judgment as follows: (1) In favor of Elliott against Miss Hopkins for $1,371.30 as the balance, principal, interest, and attorney’s fees, due on the note, and foreclosing the lien asserted by Elliott against the three Ivers & Pond pianos; (2) in favor of Elliott against the piano and organ company for $700, as the value of the two Starr pianos found to have been converted by it; (3) in favor of the piano and organ company against Elliott for $300, as the sum due it as storage and drayage charges on the three Ivers & Pond pianos. By the terms of the judgment the $300 adjudged in favor of the piano and organ company against Elliott was to operate as a credit on the judgment for $700 in his favor against it, and the said $700 adjudged in Elliott’s favor against said piano and organ company was to operate as a credit on the judgment for $1,371.30 in favor of Elliott against Miss Hopkins.
    U. F. Short, Geo. M. Feild, and Cocke &. Cocke, all of Dallas, for plaintiffs in error. W. A. Kemp and A. B. Lacy, both of Dallas, for defendant in error.

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

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

   WILLSON, C. J.

(after stating the facts as above).

The judgment is before us for review on a writ of error sued out by Miss Hopkins, and also on a writ of error sued out by the piano and organ company. But we cannot consider the objections thereto urged by the former, because she failed to comply with the law which required that she should either file a bond or, in lieu thereof, should mate proof of her inability to pay the costs of an appeal. Article 2098, R. S. 1911; De la Vega v. League, 2 Tex. Civ. App. 252, 21 S. W. 565; Bank v. Carper, 28 Tex. Civ. App. 334, 67 S. W. 188; Stafford v. Blum, 7 Tex. Civ. App. 283, 27 S. W. 12; Jamison v. Land Co., 77 S. W. 969; Anderson v. Silliman, 92 Tex. 560, 50 S. W. 576. At the time she filed her petition for the writ, Miss Hopkins filed an affidavit made by her attorney before a notary public that she was unable to pay the costs of the appeal or any part thereof, or to give security therefor. The statute referred to required that she should make proof of her inability to pay the costs before the county judge of the county where she resided, or before the court which tried the cause. Filing the affidavit mentioned above did not satisfy the requirement of the statkte. Graves v. Horn, 89 Tex. 77, 33 S. W. 322; Bargna v. Bargna, 123 S. W. 1143. On the day the cause was submitted to this court, Miss Hopkins filed with the clerk here her affidavit, made before the county judge of Dallas county, that she was unable to pay the costs of the appeal or any part of same. But the filing of this affidavit cannot be given any effect. The statute (article 2104, R. S. 1911) authorizing the filing of a new appeal bond to cure a defect in one previously filed does not authorize the filing of a new affidavit to cure defects in an affidavit previously filed in lieu of such a bond. Washington v. Haverty Furniture Co., 136 S. W. 832; Wood v. Railway Co., 43 Tex. Civ. App. 590, 97 S. W. 323. Under the circumstances stated, we must sustain appellant’s motion to dismiss the writ of error sued out by Miss Hopkins.

The piano and organ company insisted in the court below, and insists here, that the testimony showed that Elliott and Miss Hopkins placed the five pianos with it to be repaired, tuned, and sold; that thereafter wards neither of them had a right to the possession thereof as against it until its charges for the storage, etc., were paid; and that, it appearing its .charges had not been paid, it was not guilty of-a conversion as against Elliott, when, on his demand therefor, it refused to' deliver the pianos to him. Its contention, so far as it applied to the three Ivers & Pond pianos, was sustained by the court below, and the .jury was Instructed to find, and did find, in its favor on account of the storage, etc., of those pianos. The contention, so far as same applied to the two Starr pianos, was overruled; and, on the theory that the undisputed testimony showed that said piano and organ company had unlawfully converted those pianos, the jury was instructed to find against it for their value. The question p resented" by "thé assignments is as to the correctness of the conclusion reached by 'the trial court that it appeared, as a matter of law, that the piano and organ company had converted the two Starr pianos-

By the terms of the mortgage covering the Starr pianos, Elliott was authorized to take possession thereof “wherever they may or can be found, and sell the same at private or public sale to the highest bidder,” in the event Miss Hopkins made default in the payment of the debt it secured, or in the event, at any time before the indebtedness-matured, Elliott “felt unsafe or insecure.” It is settled that such a stipulation in a mortgage is valid, and that the mortgagee, by virtue thereof, may take possession, if he can do so peaceably, of the mortgaged property without the mortgagor’s consent. Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, 60 L. R. A. 143, 97 Am. St. Rep. 901. It appearing from the testimony that the indebtedness secured by the mortgage had matured, the effect of the decision cited is to show that Elliott was entitled to the possession of the pianos as against Miss Hopkins. Was he also entitled to the possession thereof as against the piano and organ company, without first paying charges demanded by them as storage, etc., thereon? Clearly he was not, if it was true, as that company contended it was, that he had agreed that the pianos might be placed with it to be repaired, tuned, etc. But there was no testimony showing Elliott had so agreed. On the contrary, it conclusively appeared that the piano and organ company acquired possession of the pianos without either his knowledge or consent. Therefore a right in that company to retain possession of the pianos until the charges it claimed against same were paid cannot be predicated on an agreement on the part of Elliott. Can it predicate such a> right, as against Elliott, upon the fact, if it was a fact, that Miss Hopkins had delivered the possession of the pianos to it for the-purposes stated? We think not. It knew that Miss Hopkins had conveyed the property to Elliott to secure her indebtedness to him, and therefore that she could not by her act, and without his consent, create in its-favor a lien and rights superior to his. If however, it should be said that the law is that a person, with notice of a mortgage, containing a stipulation like the one in question, in possession of the mortgaged property under a contract with the mortgagor to-repair, etc., same, is entitled to retain possession thereof- until his charges for such repair, etc., are paid, as against the mortgagee, we would feel constrained to hold that this is not that kind of a case, because it does not appear, from any testimony in the-record, that Miss Hopkins delivered the possession of the pianos to the piano and organ company for such a purpose, or, indeed,, that she delivered possession of same to it at all. It appeared that Miss Hopkins had been conducting a music school in Dallas, and that in April, 1910, she closed the school, going to Illinois, where She remained until February, 1911. She testified that when she left Dallas the pianos were in the building where she had been using them, and.that she had no recollection of having authorized the piano and organ company to take same from said building. The only other testimony with reference to this phase of the case was that of the manager of the piano and organ company, who said that the two Starr pianos “came down to the store (of the piano and organ company) when Miss I-IOpkins’ conservatory was closed, and came on a telephone message.” It seems to us that the testimony that the pianos “came on a telephone message,” in the face of Miss Hopkins’ testimony that she had no recollection of having authorized the piano and organ company to take same from the building where she left them when she went to Illinois, would not have justified a finding that she sent the message or had it sent, and thereby authorized the piano and organ company to take possession of the pianos. If it would not, then clearly it did not otherwise appear from the testimony than that said piano and organ •company wrongfully, both as to Miss Hopkins and Elliott, was in possession of the pianos at the time Elliott demanded same. Under such circumstances, the piano and organ company had no right to refuse to deliver the pianos to Elliott, unless charges it claimed against same were paid, and unless Miss Hopkins consented to such delivery. Its refusal, .we think, was such a conversion as tendered it liable to. Elliott, for the value of the two pianos. 28 A. & E. Enc. Law, pp. 705, 708; Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 717.

There is no' error in the judgment, in so far as it is against the piano and organ company ; and it is affirmed.


author: LEVY, J.

text:
    CITY OF DALLAS v. COCHRAN et al.

    (No. 1292.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 2, 1914.
    Rehearing Denied April 16, 1914.)
    Taxation (§ 244) — Exemptions — Pbopekty Used by. Religious Society.
    Under Rev. St. 1911, art. 7507, § 1, exempting from taxation buildings used exclusively for public worship, and not leased or otherwise used with a view to profit, a building used exclusively for public worship is not exempt from taxation where it is owned by a private individual and leased to a religious society, which pays a monthly rental, for it is leased and used by the owner with a view to profit, within the statute, which should receive a strict construction.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 405-414; Dec. Dig. § 244.’]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by City of Dallas against Sam P. Cochran and another. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    The suit is brought by the city of Dallas for taxes claimed to be due for the year 1911 by appellee Cochran, as owner of certain real estate located in the city of Dallas, and to foreclose a tax lien. The United States Bond & Mortgage Company, Incorporated, was made a party defendant, upon the ground that such company held a mortgage lien on the premises, and a foreclosure of the tax lien as against it was prayed for. The property in suit, described by metes and bounds, is 100- by 90 feet in block 125/33 according to the official map of the city of Dallas. The petition alleges that appellee Cochran rendered the property for taxation to the proper officers of the city of Dallas, and that it was accepted and incorporated in the official rolls. The appellees each answered by denial, and specially averred to the effect that the lot was occupied by a ehurcbhouse; which was the First Presbyterian Church, and that he had, on May 31, 1910, executed" á lease or rental contract to the church, by' the terms of which the church was to pay a stipulated rental and was to occupy and use the house and the lot for the exclusive purpose of public worship, and that the church had, since said time, used, and is now so using, the entire premises and building thereon exclusively for public worship, and that the premises were by law exempt from taxation for the year 1911. The case was submitted to the court upon an agreed statement of facts,, and judgment was rendered in favor of the appellees. The agreed statement of facts, which the trial court adopts, is as follows:'
    “(1) That on, to wit, about May 31, 1910, the First Presbyterian Church conveyfed to Sam P. Cochran, defendant herein, the following described iand [description follows], reserving in said deed and notes express vendor’s lien to secure the payment of certain indebtedness, to wit, the sum of $60,000, therein mentioned as part of the purchase money of said lot, $10,000 of which has been paid, and the two notes remaining unpaid of $25,000 each, with vendor’s lien, having been conveyed by proper deed of conveyance to the United States Bond & Mortgage Company, Incorporated, and tha.t the said United States Bond & Mortgage. Company still owns and holds said notes; that subject to the express vendor’s lien above mentioned Sam P. Cochran owned said lot on the 1st day of January, 1911.
    “(2) That on the date when the said lot was conveyed to defendant it was occupied by a ehurchhouse, which the First Presbyterian Church has been using for years for the exclusive purpose of public worship; that it had used none of it, or the grounds attached thereto, for any other purpose.
    “(3) That on the date when the said lot was conveyed to said defendant, he immediately executed to the said First Presbyterian Church a lease or rental contract, which was accepted by the said First Presbyterian Church, by the terms of which they continued to occupy said lots and buildings thereon as they had previously occupied them for the exclusive purpose of public worship, for which they paid the said defendant a stipulated rental; that under the said lease contract said church has, ever since the date of the said conveyance to the present time, including the 1st day of January, 1911, occupied said lot and buildings thereon and used same exclusively for public worship.
    “(4) That all of the buildings thereon and furniture in said buildings and the grounds attached thereto are necessary and proper for such use.
    “(5) That no part of the said lots, buildings, or furniture has been leased or rented out by the said First Presbyterian Church, or otherwise used by it with a view to profit.
    “It is agreed by the parties hereto that if the exclusive use of this property by the said First Presbyterian Church for the purpose of public worship, and under all the circumstances above stated, and that it has not leased out any part of it, or rented it to any other person for profit, does not exempt same from taxation under the laws of Texas, the defendant is liable for taxes thereon due the plaintiff for the year 1911.
    “(6) It is agreed that the assessment by the city of Dallas was duly and regularly made, and that the amount of taxes due for the year 1911, exclusive of penalties and interest is $829.92.
    “It is contended by the plaintiff in this case that the fact that defendant has bought the property under the circumstances above stated, and leased it to the First Presbyterian Church, renders him liable for the taxes thereon; whereas defendant’s contention is that the ownership of the property might be construed to be in him is immaterial, as the exclusive use of the property by the church exempts it from taxation.”
    C. F. O’Donnell and Marion S. Church, both of Dallas, for appellant. Crane & Crane, of Dallas, for appellees.

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

       Application tor writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above). The trial court gave the legal effect of the agreed facts as follows: “It is concluded as a matter of law that the property above described is exempt from taxation by reason of the fact that it was used by the Presbyterian Church for the exclusive purpose of public worship, notwithstanding the fact that the Presbyterian Church did not own the property.” The assignments challenge the ruling of the court. Appellee Cochran was the owner of the premises, and leased the church building and lot to the Presbyterian Church for a stipulated rental. And it is the owner who here seeks and claims 1 exemption from taxation. And thus there arises the precise question for decision of whether the property is exempt, under the statute of this state, from taxation at the hands of the legal owner thereof on account of the use for purely religious worship which the property is put to by the lessees. Section 1, art. 7507, R. S., provides exemption from taxation to the following property, in words as follows: “Public schoolhouses and houses used exclusively for public worship, the books and furniture therein and the grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit.” The latter clause, “and not leased or otherwise used with a view to profit,” has clear and explicit reference alike to each the house, the books and furniture, and the ground occupied by the building. And such clause could not properly be construed otherwise than as a qualifying clause upon each and every subject-matter preceding it in the provision. In this view, then, the provision must be here read as exempting from taxation a house and necessary grounds which are (1) “used exclusively. for public worship,” and (2) “not leased or otherwise used with a view to profit.” The language of the first clause, “used exclusively for public worship,” quite clearly denotes the mode and character of úse to which the particular property must be put before taxes may not be imposed. But under the second, and qualifying, clause of the provision, the particular property may not be exempted from taxes, though used exclusively for public worship, if “used with a view to, profit.” It is manifest from the language that the use of the property for church purposes, and the use of the property for profit, cannot both exist if the property is to be exempt. And as the dual use of the particular property cannot exist if the property is to be exempt, it is difficult to perceive how the exemption could apply to the facts here. The fact that the lessee used the premises under a rental contract for church purposes would be opposed by the. fact that the owner, claiming the exemption, was himself putting his property to the use of private gain. And requiring that the property be “used” for religious worship, and not “used with a view to profit,” would indicate that the Legislature had in mind, in measuring the exemption, the entire use to which the property is put by all concerned. The language does not express any other meaning. If the full use which the property is put to by all concerned must, under the language of the act, measure the exemption, then there is no warrant to construe the provision in hand as saying that the property would be covered by the exemption if it is not rented out by a lessee. The words do not say so. And neither do we think it means that. The purpose of employing the language of limitation in the second clause is made apparent when it is considered that'without this clause the owners of' property might lease it for profit, to be used by the lessee for public worship, and thereby exempt it from taxation. And clearly, we think, the Legislature meant, by adding the language of limitation of the second clause under consideration, to prevent the owners of property, whoever they might be, from taking advantage of the exemption when any profit to them is- derived from the particular property.

It is the universal rule applicable to statutes exempting property from taxation that “when an exemption is found to exist it shall not be enlarged- by construction. On the contrary, it ought to receive a strict construction ; for the reasonable presumption is that the state has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute, the favor would be extended beyond what was meant.” ’1 Gooley on Taxation (3d Ed.) p. 357. This rule plainly meant that the statute must be taken literally, or, if the construction of the law be doubtful, that the doubt must be resolved in favor of the taxing power-and against the exemption. 2 Sutherland, Stat. Con. (2d Ed.) § 539; approved Morris v. Masons, 68 Tex. 698, 5 S. W. 519. And, applying these rules, we think the second clause of the provision under consideration, which we are called upon to construe and apply, classifies the premises as taxable, and makes it a subject-matter of taxation, when, as here done by the owner, used for purposes of a private interest.

In the case of City of Louisville v. Werne (Ky.) 80 S. W. 224, the owner pf the lot leased it to the trustees of the Walnut Street Baptist Church for a term of 20 years, without rent, for the purposes of a mission church. The provisions of the statute of that state, as given in the opinion, provided exemption from taxation to “places actually used for religious worship,- with the grounds attached thereto and used and appurtenant to the house of worship.” The court there held the property was shown to be within the terms of the exemption, because of .the fact that its entire use was for religious purposes. But neither the facts nor the provisions of the statute of that case are at all like the instant one. And yet it is not doubted that the statute of Texas would apply to and cover an exemption upon the same facts of the case just mentioned. For illustration: If the owner here had agreed for his property to be used by the church for purely religious worship, rent free, the exemption would apply. It would apply because the entire and full use of the property would, in such case, be without a “view to profit” by any one. And it would likewise apply where a church owns the property and .uses it exclusively for religious worship. In each instance the property would be put to the use only of religious worship, and that would be clearly within the terms of the-act. But where the facts, as here, appeal-otherwise, the terms of the act are not met..

In Scott v. Society of Russian Israelites, 59 Neb. 571, 81 N. W. 624, the owner of the-premises leased it to the society for 10 years-for a monthly rental. The statute there-provided, as disclosed by the opinion, an exemption -to property “used exclusively for religious worship.” The court there held that the exemption did not depend, under the-terms of the statute, upon the ownership of the property, but upon the uses that such property subserves. But the difference between that statute and the statute of this* state can be appreciated the moment it is-stated. In that statute there was no limitation upon the exemption. In the statute of this state there is the limitation that such property must not be used with “a view to> profit.”

But to the contrary of that case is the case of State v. MacGurn, 187 Mo. 238, 86 S. W. 139, 2 Ann. Cas. 808, where a lot was-leased at an annual rental to a school board to be used for school purposes. The statute there; as stated in the opinion, exempted from taxation “lots in incorporated cities when the same are used exclusively for-schools.” There the court held that to constitute an “exclusive” use of the premises, for school purposes there must be no profit or gain from- the. property at the hands of the owner. And that case cites several decisions of other states, which can be referred to, placing the same construction upon similar statutes.

Appellant also cites and relies on the cases of Vail v. Beach, 10 Kan. 214; Anniston v. State, 160 Ala. 253, 48 South. 659. In both-of those cases the statute in hand merely declared the property exempt “when the same are used exclusively” for the purposes-named. And the statute of this state, as before observed, is not' intended to grant exemption without limitation. This difference makes inapplicable the cases cited.

The judgment is reversed and here rendered in favor of the city of Dallas for the amount of the taxes, interest, and penalty-sued for against appellee Cochran, with á foreclosure of the tax lien against the property described against both appellees. The-costs of the trial court and of this appeal.1 will be taxed against appellees.