author: HIGHTOWER, C.

text:
    DELANO v. DELANO.
    (No. 325.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 23, 1918.
    Rehearing Denied June 5, 1918.)
    1. Evidence &wkey;419(2) — Deeds Showing ■Real Consideration — Contractual Recital.
    Parties may show the real consideration for a deed, regardless of the consideration expressed on the face of the instrument, except that, where the recitation in the deed with reference to the consideration is of a contractual nature, it cannot be disputed, altered, contradicted, or modified by oral evidence.
    2. Evidence <©=3419(2) — Deeds—Parol Evidence-Recital of Consideration.
    In a mother’s deed conveying fee simple title to her son, the recital of consideration of cash paid, and also that the son’s stepdaughter should receive the same interest in the land as his own children, was not contractual, so that, in the son’s action for partition against his brother, parol evidence was admissible to' show that the deed was intended as an advancement to the son of his interest in his mother’s. estate.
    3. Deeds <&wkey;120 — Estates Created.
    A deed whereby a mother conveyed land to her son, acknowledging consideration of cash paid, on the further consideration that the stepchild of the son should receive an equal and exact share of the property conveyed as if she were the daughter of the son, passed fee-simple title to the son, and did not create any estate, in trust or otherwise, in his stepdaughter or in any of his own children.
    4. Appeal and Error &wkey;>1064(l) — Harmless Error — Instruction.
    In suit for partition by a son claiming under deed from his mother, which recited that his stepdaughter should have the same interest in the land as his own children, an instruction that the deed conveyed no interest to the stepdaughter, and that, in considering whether it was an advancement to the son, the jury would not consider the recitation with reference to the stepdaughter, was error harmless to the son, if erroneous as eliminating from the consideration of the jury the recital as evidence of intent, and submitting the remainder of the deed as evidence, thus constituting a charge on the weight of the evidence.
    5. Trial <&wkey;350(4) — Special Issue — Submission of Question of Law — “Advancement.”
    In suit for partition by a son claiming under his mother’s deed, the submission of the special issue, whether the land described in the deed was conveyed to the son as an advancement, was not erroneous as the submission of a question of law, an advancement being defined by the court as a gift of land, money, or other property by a parent to a child with the intention that it shall be all .of, or a portion of, the child’s share in the parent’s estate at the parent’s death.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Advancement.]
    6. Appeal an-d Error <&wkey;699(4), 704(1) — Re- ■ view — Refusal of Special Charges.
    The refusal of special charges and issues will not be reviewed on appeal, where the record fails to show they were presented to opposing counsel for examination and objection, as required by Acts 33d Leg. c. 59, § 3.
    Appeal from District Court, Milam County; John Watson, Judge.
    Suit by J. R. Delano against L. S. Delano. From judgment for defendant, plaintiff appeals.
    Affirmed.
    See, also, 189 S. W. 972.
    E. A. Wallace, of Cameron, for appellant. J. W. Garner, of Rockdale, and Henderson, Kidd & Henderson, of Cameron, for appellee.
   HIGHTOWER, C.

J. The following statement of the nature and result of this suit is found in appellant’s brief, and is not questioned by appellee, except as to tlie effect of the allegations contained In appellant’s supplemental petition:

Mrs. E. J. Delano, who was the mother of appellant, J. R. Delano, and appellee, L. S. Delano, died intestate in Milam county in 1913, leaving surviving her, as her only heirs, said parties. Her estate, at the time of her death, consisted of 140 acres of land in Milam county, Tex. No administration was had and none was necessary.

Appellanf brought this suit to partition, as 'between himself and appellee, said estate of their mother. Appellee answered and resisted such partition, upon the ground that prior to their mother’s death she had deeded to appellant the same quantity of land in settlement of his inheritance, and that in recognition of such fact appellant deeded to-appellee this particular 140" acres of land in controversy, and that, after he had fully executed such deed of conveyance, appellant unlawfully and without authority erased his signature therefrom.

To this answer appellant replied by supplemental petition, in which he alleged that the land deeded to hi-m by his mother about two years prior to her death was for a valuable consideration, and partly in trust for one Annie Roberson, a stepchild of appellant, and not as an advancement, which he claimed was shown by the recitals in said deed. And, further, it was alleged by appellant in the supplemental petition that the deed which appellee claimed appellant had executed to him for the land in controversy was obtained by fraudulent representations and statements made to him by appellee and one Wells, which induced its execution, in that, as he alleges, appellee and Wells, at the time, stated and represented to appellant that such deed was for only 70 acres of the land in controversy, and that appellant, at the time of its execution, believed that the deed conveyed only 70 acres of such land; that he was afterwards. informed by the said Wells that he, said Wells, had changed said deed, after its execution by appellant, so as to make it convey 140 acres, the whole tract here in controversy, instead of only 70 acres; that thereupon appellant erased his name from said deed, and that, on account of such alleged change in said deed, there was an insufficient execution-of same, and that appellant was entitled to receive said deed back from the said Wells and to erase his name therefrom; and he further alleges that after he erased his name from said deed the said Wells, who had taken his acknowledgment thereto, also erased his certificate of acknowledgment.

This is the second appeal in this case, and the report of the case on the first appeal will be found in 189 S. W. 972, where the history and facts in full relating to this controversy may he found, and we refer thei'eto for a more complete understanding of the nature of the controversy and the issues involved.

Mrs. E. J. Delano, the mother of these parties, and a widow, on the 25th day of February, 1911, appears to have owned in her own separate right a tract of land containing 280 acres, a-'part of the 'Delgado survey in Milam county, and on that date she executed to appellant a deed to 140 acres of such tract, being the east half thereof, which deed, with the exception of the description of the land conveyed thereby, was as follows:

“Know all men by these presents, that I. Mrs. E. J. Delano (widow), of the county of Milam, state of Texas, for and in consideration of tne sum of $4,320.00 cash to me on hand paid by J. R. Delano (my son),'the receipt of which is hereby acknowledged, and the further consideration that Annie Roberson, a child of the wife of said J. R. Delano by her former marriage, and who is a half-sister to the children of the grantee herein, shall receive an equal and exact share of the property hereby con-I veyed, the same as if she were the daughter ' of my said son, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said J. R. Delano, of the county of Milam, state of Texas, all that certain lot, tract, or parcel of land, to wit: [Here follows description of the land.] To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto said ,T. R. Delano; and I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto said J. R. Delano, his heirs and assigns, against every person whomsoever claiming or to claim the saíne or any part thereof.”

This deed, was duly signed and acknowledged.

It was the contention of the appellee, who was defendant below, that this deed from his mother to his brother, the appellant, was made as an advancement to appellant of the interest in said 280-acre tract that he would have inherited from his said mother, and being one-half of such tract, and that it was so understood and intended by both appellant and their said mother, and that it was in fact intended to be a partition of their said mother’s estate during her lifetime of said 280-acre tract of land, as between 'appellant and appellee, and that appellant in fact paid no consideration for the land conveyed by said deed, and was not entitled to partition or have any interest in the remaining half of said 280-acre tract, which was the west half, and which is now sought to be partitioned by appellant, and of which he claims to be an owner to the extent of a one-half undivided interest.

The case was tried with a jury, to whom the case was submitted upon special issues, as follows:

“This case is submitted to you on what is known as special issues. Certain questions will be propounded to you and appropriate instructions given, and you will answer said questions, and upon your answers the court will render judgment.
“You are instructed that a gift of land, money, or other property by a parent to a child, with the intention that such money, land, or other property shall be all of or a portion of the child’s share in the parent’s estate at the parent’s death, is in law an advancement.
“Governed by the foregoing instructions, you will answer the following:
“Special Issue No. 1: Was the 140 acres of land described in the deed from Mrs. E. .7. Delano to J. R. Delano, dated February 25, 191T, conveyed to J. R. Delano as an advancement? Answer ‘Yes’ or ‘No.’ The burden of proof is upon the defendant to show by a preponderance of the evidence the affirmative of the foregoing issue. (To this question the jury answered ‘Yes.’)
Special Issue No. 2: Did J. R. Delano consent for and authorize the deed from him to D. S. Delano, dated January 19, 1913, to be so changed and altered as to cause it to convey the 140 acres of land therein described? Answer ‘Yes’ or ‘No.’ The burden of proof is upon the plaintiff to show by a preponderance of the evidence the negative of the next preceding issue. (To this question the jury answered ‘Yes.’)
“You are instructed that the deed from. Mrs. E. J. Delano to J. R. Delano, dated February 25, 1911, conveyed no interest in said land to Annie Roberson; and, in arriving at your answer to question No. 1 hereof, you will not consider the recitations in said deed with reference to the said Annie Roberson.
“You are the exclusive judges of the facts proven, the credibility of the witnesses, and the-weight to be given Jheir testimony; but you will receive the law from the court as herein given and be governed thereby.”

Upon the verdict of the jury as shown above, judgment was entered to the effect that appellant take nothing by his suit, and all costs were adjudged against him. Motion for new trial having been overruled, and the action of the court in that regard properly excepted to, the ease was brought here by appeal, and is properly here for revision.

The first assignment of error found in appellant’s brief complains of the action of the trial court in refusing to peremptorily instruct a verdict in favor of appellant. The proposition under this assignment is as follows:

“The recital of consideration in the deed from appellant’s' mother expressly shows that the consideration was that his stepchild should receive an equal and exact share of the property conveyed, the same as if she were a child of the appellant, and that such recital Was contractual in its nature, establishing by its terms the nature of appellant’s title under said deed; and, being contractual in nature, conclusively established the nature and character of the deed as one. of purchase as contradistinguished from a deed of gift by way of advancement; and such recital was therefore not subject to impeachment by parol, in the absence of pleading showing fraud, accident, or mistake.”

And the second proposition was:

“The recited consideration in tlip deed to appellant from Ms mother clearly established a trust estate in the land in favor of Annie Roberson to a portion of the land.”

The second, third, and fourth assignments of error complain of the action of the trial court in admitting evidence of certain witnesses in support of appellee’s contention that the deed to appellant from his mother, above mentioned, was intended as an advancement to appellant of his interest in her estate, as claimed by appellee, all of which evidence was objected to by appellant, and such assignments, therefore, practically -raise the same legal point as that raised by the first assignment, and what we shall say in this connection will dispose of •all of said assignments.

That it is a well-established rule in this state that the true consideration for a deed may always be shown by parol is not questioned by appellant, but it is contended by him that the recitation as to the consideration contained in the deed from his mother to himself is of a contractual nature, and, that being so, it was not competent to permit evidence that tended to impeach, alter, qualify, or contradict such contractual recitation in said deed, but that, on the contrary, in the absence of an allegation of fraud or mistake, the deed spoke for itself, and its legal effect was to constitute appellant a purchaser of the land thereby conveyed for a valuable consideration, charged only with a trust for a portion thereof in favor of Annie Roberson; and that the court should, therefore, have■ instructed a verdict for appellant, and was in error in permitting appellee to offer any parol evidence whatever showing, or tending to show, that said deed was intended to convey the land therein mentioned to appellant as an advancement of his interest in his mother’s estate, as claimed by appellee. This precise question was decided adversely to appellant’s contention on the former appeal in this case. Delano v. Delano, 189 S. W. 972. Appellant insists, however, that the Court of Civil Appeals, deciding this question on the former appeal, was clearly in error, and we are earnestly urged to disagree with that holding, and sustain appellant’s contention, notwithstanding the same.

We have very carefully considered the question raised by these assignments, and have reached the conclusion that the Court of Civil Appeals for the Third District was correct in holding that the recitation as to consideration contained in the deed in question was not one of a contractual nature, and that it was permissible to prove by parol the real intention and purpose of the parties to said deed. Of course, this court recognizes and admits the exception to the general rule, which permits parties to show the real consideration for a deed, regardless of what the consideration may be expressed to be on the face of the deed, which exception is that, where the recitation in the deed with reference to the consideration is of a contractual nature, it cannot be disputed, altered, contradicted, or modified by oral evidence, but what we hold is that the recitation in this deed as to consideration is not of a contractual nature.

As said by the court .on the former appeal:

“It will be observed that the recital does not bind the grantee to do or not to do anything. It merely recites that Annie Roberson shall receive such an interest in the land as the children of J. It. Delano should receive. And it further appears from such conveyance that his own children did not re ciive anything, but that he himself took the fee-simple title to the land in question, without remainder to any one. Hence Annie Roberson could take nothing under this stipulation, and such recital had no binding legal effect. The court was therefore in error in finding, as a conclusion of law, that such recital was contractual.”

Appellant cites, as the main, authorities in support of bis contention on these points, Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Ry. Co. v. Garrett, 52 Tex. 133; and Ry. Co. v. Pfeuffer, 56 Tex. 66.

The deed under consideration in the Kahn Case was one from a husband to his wife. It was recited in the deed that the consideration paid therefor was out of the separate means of the wife, and it was further recited in the deed that the conveyance was made to the wife for her sole and separate use and benefit.. ' Afterwards Kahn and his wife were divorced, and subsequent to the divorce Mrs. Kahn brought suit against her former husband to recover from him the land described •in this deed to her, claiming the same as her separate property, and that Kahn had no interest of any character in the land. Kahn answered, and, among other things, alleged that while it was true that the deed from him to the plaintiff recited that it was made for her sole and separate use and benefit, and also 'that the land mentioned therein was paid for out of her separate money, yet such recitations were made by the draftsman, without the knowledge or consent of either himself or Mrs. Kahn, and that such recitations were .not true in fact, and that he did not, at the time of the execution of such deed, intend to convey the property to his wife for her own sole and separate use and benefit, or to make it her separate property, and that the property was in fact community 'property between himself and the plaintiff, and, over the objection of the plaintiff, Mr. Kahn was permitted to testify in support of his allegations on that point. The trial resulted in a judgment to the effect that the property was community property, and the plaintiff, Mrs. Kahn, was only permitted to recover a one-half interest in the same. That judgment was affirmed by the Court of Civil | Appeals, but writ of error was granted by the Supreme Court, and the judgments of the lower court and Court of Civil Appeals were both reversed. The opinion of the Supreme Court in the case was written by Associate Justice Williams, and is a very interesting and clear discussion of the rules of construction to be applied where a deed from a husband tó a wife during the marital relation is under consideration; but none of the rules there discussed have application here, and we pretermit any further reference to them. .It was unequivocally held by the Supreme Court in that case that:

“Where a deed from a husband to a wife clearly expressed an intention to make the property conveyed her separate estate, by reciting payment of consideration from her separate funds, parol evidence is not admissible, without proof of fraud or mistake in the insertion of such recitals, to show that the grantor did not intend to convey to her as her separate property.”

It was further held in the case:

“The statement in a deed from husband to wife of a consideration received from the wife’s separate property is a contractual recital showing the character of the right created, and cannot be varied by parol evidence of a different consideration which would make the deed inoperative.”

Among other things the court said:

“There can therefore be no doubt that the deed before us upon its face unequivocally expresses the purpose of Kahn to convey to his wife in her separate right, and he cannot be permitted, consistently with correct principles, to show that he did not so intend. The evidence admitted 'does not come within the rule which permits the true consideration of an .instrument to be shown to have been different from that recited. This principle, properly applied, admits the evidence where the consideration has been stated as a fact, but not where the recital is contractual in its nature.”^

Eurtlrer:

. “The statement in. the deed from Kahn to his wife is more than the mere statement of a fact. Under the decisions referred to, its legal form is to show the character of the right to be created by his deed, and is as much a contractual recital as any in the instrument, and belongs to that class of particular and. contractual recitals which, in deeds, estop the parties from denying them. Another limitation upon the rule is that a grantee ¡.grantor?] in a deed will not be permitted to defeat it as a conveyance by showing that there was no consideration, and the effort here is to defeat the deed as a conveyance of the property to Mrs. Kahn in-her separate right, which would be to make it wholly inoperative, since the legal title was already in the community estate. Evidence that no consideration passed would doubtless be permissible where such fact would be of any importance upon the issues of a case, but it could not have the effect of defeating the. operation of the deed.”

We think,, clearly, that this case cannot be invoked in support of appellant’s contention here, because, in our opinion, the purpose of offering the parol testimony in the Kahn Case was entirely different ■ from the purpose in offering such testimony in this case, in that in the Kahn Case the purpose of offering the parol testimony was to destroy the deed as a conveyance at all, and to destroy all rights recited thereby to be in the grantee, while in the instant case the purpose of the parol testimony was not to destroy or in any manner affect the deed from appellant’s mother to him as a conveyance of the land thereby conveyed, or to limit or affect his interest therein to any extent whatever; on the contrary, its purpose and effect was to confirm the deed and the estate thereby conveyed in appellant. Such testimony was only offered to show that appellant’s mother, in making the deed to him, intended that he should have the land thereby conveyed as his interest in her estate, which, under the law of descent and distribution, he would have received after her death without such deed, and that it was further her intention to partition her estate during life between her only children. Appellant is mistaken in his contention that the recitations in this deed, in so far as they relate to his stepchild, Annie Roberson, create a trust of any character in her behalf touching the land thereby conveyed, but, on the contrary, this deed passed the title to the land thereby conveyed to appellant in fee simple, and neither in Annie Roberson nor in any of his own children was any estate created by said deed.

In the Garrett Case, Garrett brought suit against the railroad company, alleging that the company had forcibly and without his consent entered upon and appropriated a portion of his land, and constructed its roadbed thereover for a named distance, and had appropriated approximately 12 acres thereof, of the value of $20 per acre, and claiming damages for timber cut and other trespasses. The railroad company answered, denying the allegations in Garrett’s petition attributing any wrong to it, admitting that its road had been constructed over his land, but alleging that the right of .way over same had been acquired by it through deed duly executed by Garrett, and that such deed was executed without any reservation and for the consideration only as expressed in the deed. Garrett filed a supplemental petition, in which he alleged, ámong other things, thatt if he executed the deed to the railroad company as claimed by it, the same was procured by false and fraudulent representations on the part of the company and its agents, in that the railroad company verbally agreed and promised Garrett that, if he would make the deed to it, the company would pilace a depot on the land near his residence and establish a shipping point there; that solely on the faith of this promise and agreement, and for this consideration only, he executed the deed referred to; that the company failed to so locate the depot, but placed it at another place beyond his land; and there were other allegations setting up a breach of verbal promises on the part of the railroad company. Eor these reasons Garrett" alleged that the consideration for the deed had failed, prayed its cancellation, and judgment for his damages. Among other things the Supreme Court of this state, speaking through Associate Justice Bonner, said:

“Plaintiff further claims to recover by reason of false and fraudulent representations of defendant and its agents that they would locate a depot upon his land, by which he was induced to execute the deed. * * * As the case will be remanded, we deem it. however, proper to sav that the deed expressly recites as.the consideration the sum of $1.00 in hand paid by the defendant, and the ‘further consideration that the said company will locate its railroad over my land situated in Marion county.’ As- this deed was executed by the plaintiff and accepted by the defendant, this recital is more than a bare receipt of the payment of the purchase money; it is also the written evidence of a contract between the parties” to the effect “that the plaintiff would grant the right of way, and that the defendant would construct its road over the same. To permit a parol contemporaneous condition to be ingrafted upon a deed in writing, it should be upon proper allegation of fraud, accident, or mistake, and upon clear and satisfactory evidence.”

Thus, it will be seen in the Garrett Case that it was clearly and. expressly recited in the deed there under consideration that the grantee, the railroad company, as consideration for the same, would construct its railroad over the land of the grantor; in other words, the railroad company, the grantee, bound itself to do something, namely, construct its railroad over grantee’s land, and this recitation as to such consideration was clear and unambiguous, and showed all the consideration for the deed, and purported to show all the consideration that moved the grantor to execute the deed; and the court in that case was correct, in our opinion, in holding that it was not permissible for grantor, Garrett, to show, in the face of these positive expressions as to consideration, that the railroad company also promised to construct a depot on Garrett’s land and failed to do so. We do not consider that the case is authority in support of appellant’s contention here.

In the Pfeuffer Case, recitations in the deed there under construction as to the consideration for same were almost identical with the deed in the Garrett Case, and the court reached the same conclusion, holding, in effect, that parol testimony was not admissible to contradict or vary the recitation in the deed as to the consideration therefor, because such recitation was contractual, and that the rule .which prevents any written contract between parties from being contradicted or varied by parol testimony must control. We do not consider that either of the above-mentioned cases relied upon by appellant supports his contention to the effect that the recitations in the deed from his mother to himself, as to consideration, were of a contractual nature; and believing that the trial court was not in error in refusing to give the peremptory instruction requested, or in permitting parol testimony, as complained of, we overrule appellant’s first, second, third, and fourth assignments of error.

By the fifth assignment of error appellant complains that the trial court erred in giving this portion of its charge to the jury, to wit:

“You are instructed that the deed from Mrs. E. J. Delano to J. R. Delano, dated February 25, 1911, conveyed no interest in said land to Annie Roberson; and in arriving at your answer to question No. 1 hereof, you will not consider the recitation in said deed with reference to the said Annie Roberson.”

The record shows that appellant objected to this portion of the court’s charge in proper time and manner, and that the objection was overruled by the court, and appellant excepted. The only proposition that we find under this assignment is as follows:

“In the absence of fraud, accident, or mistake, the language of the deed is presumed to express the intention of the maker, and a charge eliminating from the consideration of a jury certain recitals in the deed as evidence, and submitting the remainder of the deed as evidence, is a charge upon the weight of the evidence.”

As stated above, the deed to appellant from his mother passed no interest whatever to Annie Roberson in the land thereby conveyed, but, as we have said, a title in fee simple passed to appellant by the deed, and we do not believe that the charge complained of was intended to tell the jury anything more than that Annie Roberson acquired no interest in the land conveyed by the deed to ap pellant, and we are of opinion that a jury of ordinary intelligence, which the trial jury in this case are presumed to have possessed, would have so construed the charge; and, while the charge may not have been necessary, at the same time we do not believe from the record in this case that it was an error calculated to prejudice the rights of appellant in any way, and we therefore overrule the fifth, assignment..

By the seventh assignment of error, appellant complains of the action of the court in submitting special issue No. 1 to the jury, as hereinbefore copied, the objection being that the submission of that issue as framed by the court was nothing more than a question of law for the determination of the jury, and was not an issue of fact. We refer to the issue as hereinbefore copied, and also to the definition given the jury by the court as to what would constitute an advancement. We think that there is nothing in this assignment, and the same is overruled.

All the other assignments of error found in appellant’s brief relate to the action of the court in refusing to submit to the jury certain special issues and charges requested by appellant, of which there were 11 in all, exclusive of the peremptory instruction requested by appellant.

We decline to consider all of these assignments of error relating to the action of the trial court in refusing these special charges and issues for the reason that it is not shown by the record in this case that .such special charges and issues, the refusal to give which is complained of, were submitted to the attorneys for appellee for examination and objection,'as was required by the statute in force when this case was tried below. The statute referred to is chapter 59 of the Acts of the 33d Legislature, p. 113. Section 3 of the act declares that either party to a suit may present to the judge presiding, in writing, such instructions as he desires to be given to the jury, which the judge shall give or refuse, as he may see proper, provided such instructions, however, shall be prepared and presented to the court and submitted to opposing counsel for examination and objection (italics ours) within a reasonable time after the main charge is given to the parties or their attorneys for examination. This statute further declares that the ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as api>roved, unless excepted to as therein provided. Vernon’s Sayles’ Civil Statutes 3914, arts. 1973-2061.

The appellate courts in this state have repeatedly held that the refusal of a special charge will not be reviewed on appeal where the record fails to show that it was presented to opposing counsel for examination and objection, as required by the statutory law of this state. It is true that the 34th Legisla-ure, by chapter 177 of the Acts of 1917, p. 3S9 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), dispensed with the necessity of taking formal bills of exception to the refusal of a trial judge to give special charges. This case, however, was tried and judgment rendered before the act of 193.7 became effective, and the amendment can have no effect relative to the proceedings required by statute at the time this case was 'tried. Shipley v. Ry. Co., 199 S. W. 663; Farthing Lbr. Co. v. Illig, 179 S. W. 1092; Ry. Co. v. Hargrave, 177 S. W. 509; Terrell v. Ry. Co., 189 S. W. 575.

The statute requiring that special charges be submitted to opposing counsel for their consideration serves, we think, a useful purpose, in that opposing counsel, upon seeing a special charge properly prepared and called for by the pleadings and the evidence in the ease, and made necessary, perhaps, on account of omissions in the court’s main charge, would very probably not object to the trial court’s giving such special charge, but would acquiesce in the same, and in all probability errors which might otherwise be committed by the trial judge would be prevented, and this was the purpose of the Legislature in enacting the statute.

This court has been very liberal, perhaps as much so as any appellate court in the state, in matters of this kind, and has repeatedly declined to enforce many of the rules governing the briefing of cases in this court which are made merely for the convenience of this court, and we shall continue to be liberal in that regard; but the point here is a different matter, and we feel justified in following the rule adopted by the other courts of civil appeals in this state, as shown by the authorities cited, and therefore decline to consider the assignments mentioned. Some of them, too, have reference to the second issue involved in the case, as above mentioned, and could not avail appellant anything, even if we should consider them, because they would be immaterial, in view of the jury’s verdict on the first issue.

Finding no reversible error in the judgment of the trial court in this case, the same will be affirmed, and it is so ordered.

Affirmed.
      <s=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    LASATER et al. v. JAMISON.
    (No. 6014.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 8, 1918.
    Rehearing Denied June 5, 1918.)
    1. Judgment <&wkey;199(3) — Judgment Notwithstanding Verdict.
    To be entitled to a judgment notwithstanding the verdict a party must be able to show that undisputed facts, other than those involved in the findings of the jury, entitle him to a judgment, even though the facts found by the jury are taken as true.
    2. Evidence c&wkey;590 — Weight of Evidence-Interested Party.
    The unsupported testimony of an interested party may be disregarded by court or jury, especially where there are any circumstances tending to discredit it.
    3. Husband and Wife &wkey;>270(9) — Sale by Wife — Purchaser’s Reliance on Representations — Question for Jury.
    In a suit to recover state school surveys which had been purchased from the state by husband and wife, where plaintiff claimed under a deed from the husband and wife and defendant under a previous deed from the wife alone on her representations that she had been forced to leave her husband because of his treatment, and was selling her interest for her necessary maintenance, held on the evidence that whether defendant relied on such representations was for the jury.
    4. Husband and Wife <&wkey;267(2) — Community Property — Conveyance by Wife — Effect.
    The husband being by statute the managing head of the family, appointed to make conveyances of community property, a deed by the wife alone is void, unless the facts exist which create an exception in extreme cases.
    5. Husband and Wife <®=»2G7(2) — Conveyance by Wife — Rights of Purchaser.
    A wife has no power to convey the community property unless the husband has abandoned its administration, deserted her, and reduced her to the necessity of providing for herself and taking charge of the community property.
    6. Vendor and Purchaser <&wkey;232(l) — Possession-Notice.
    Every person dealing with land must take notice of the actual possession. -
    7. Husband and Wife &wkey;>267(9) — Conveyance by Wife —Estoppel —Representations.
    There can be no estoppel by reason of representations of the wife as to her power to sell community property and convey by her deed alone, based on her husband’s alleged abandonment, where at the time of the representations and conveyance the husband is in possession of the land and fulfilling his duties as custodian thereof.
    8. Husband and Wife &wkey;>207(2) — Deed by Wife — Ratification.
    Where a married woman conveyed her interest in community land, her deed, being a nullity, could not be vitalized by her husband’s subsequent acquiescence, but could only be ratified by an act by him having the essential elements of a conveyance.
    9. Trial <&wkey;350(2) — Evidence—Issues.
    In a suit to recover state school surveys which had been purchased by_ a husband and wife from the state, where plaintiff claimed under a deed from the husband and wife and defendant under a prior deed from the wife on her representation that she had been forced to leave her husband because of his treatment, and that she was selling her interest for her necessary support and maintenance, the submission of an issue as to whether the wife had just cause for leaving her husband was erroneous, as the answer would establish no issue in the case and the real issue was whether her husband had abandoned her.
    10. Appeal and Error <&wkey;1062(l) — Harmless Error — Submission of Issue.
    Error in submitting such issue and the answer thereto were immaterial, where there was no evidence justifying a finding of the husband’s abandonment of the wife such as would authorize her to convey the community property, and where the answer to another issue, supported by the evidence,' required a judgment for plaintiff.
    11. Husband and Wife <&wkey;270(8)~Conveyance by Wife — Representations—Burden of Proof.
    In such action, the burden of proof as to whether the wife had just cause for leaving the husband, as to whether it was necessary for her to sell her interest for her support, as to whether she was induced to execute and acknowledge a deed through the threats or fear of her husband, was upon defendant, but on the issue of the rental value of the lands for grazing purposes the burden was upon the plaintiff.
    12. Appeal and Error <&wkey;1067 — Harmless Error — Instruction.
    In such action, held, on the evidence, that defendant was not probably injured by reason of a failure to instruct the jury that- the burden of proof as to the value of land for grazing purposes was upon the plaintiff.
    13. Appeal and Error <&wkey;930(3) — Verdict— Issue — Presumption.
    In a suit to recover state school surveys claimed by defendants under a deed from the wife alone, the contention, as to that part of the judgment awarding a recovery against defendant for rents, being that no issue was submitted as to length of time or quantity of land held, so that plaintiff could not recover rents, was without merit, where the evidence would justify the court in making findings on such issues such as, together with the finding of the jury as to rental value, would support the judgment for rent, in view of Rev. St. 1911, art. 1985, providing that an issue, not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to support such finding.
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.
    Suit by S. S. Jamison against Ed. C. Lasa-ter and others. Judgment for plaintiff, and against defendant Lasater for rents, etc., and defendants appeal.
    Affirmed.
    G. R. Scott and Boone & Pope, all of Corpus Christi, W. W. McCampbell, of Alice, Dougherty & Dougherty, of Beeville, L. Broe-ter, óf Alice, and G. G. Robinson, of Beeville, for appellants. James B. Wells and Harbert Davenport, both of Brownsville, and Jas. M. Taylor, of Corpus Christi, for appellee.
   MOURSUND, J.

Appellee sued Ed. C. Lasater, J. W. Garrison, Geo. Paden, A. Stade, Geo. Balzer, Jas. Ramey, and Joe M. Kilgore to recover state school survey No. 3S6, C. E. & M. C. R. R. Co., situated in Duval and Brooks counties. The venue of the suit was changed, by agreement, from Duval to Jim Wells county. Lasater disclaimed as to an undivided one half of the survey, and as to the other half answered by plea of not guilty and pleas of the statutes of limitation of three, five, and ten years. The other defendants disclaimed except as to small portions of the land, and as to such portions pleaded not guilty, and the statutes of limitation of three, live,, and ten years. The survey in controversy was purchased from the state by R. W. Peel during his marriage to Mrs. L. J. Peel, and they made their home on said land. Plaintiff, Jamison, claims under a deed duly executed by Peel and wife on February 8, 1909. Lasa-ter claims under a deed to him by Mrs. Peel alone, for all of her right, title, and interest in said survey, executed on December 11, 1908, in consideration of $500. Mrs. Peel left their home on the land in controversy in September, 1908, and refused to live with her husband. They were not divorced until long after the conveyances above ■ mentioned wore made. The defendants other than Las-ater claimed under him. The evidence failed to raise any issue of title by limitation. The case was submitted on special issues, which, with the answers thereto, are as follows:

“Q. 1. Did Mrs. L. J. Teel, at the time of her separation from her husband, R. W. Peel, have just cause for leaving him? A. We, the jury, answer No.
“Q. 2. Was the financial circumstances of Mrs. L. J. Peel, at the time she made the deed to Ed. O. Lasater, such that was necessary that she make said sale of such property for the purpose of supporting herself? A. We, the jury, answer No.
“Q. 3. Was Mrs. L. J. Peel induced to execute and acknowledge the deed in evidence to S. S. Jamison through threats or fear of her husband, R. W. Peel? A. AVe, the jury, answer No.”
“Q. 5. What is the reasonable rental value of the lands in controversy in this suit for grazing purposes per acre per annum? A. AVe, the jury, answer: 20 cents per annum.”

Judgment was entered in favor of plaintiff for all of said survey 386, and against Lasater for S338.10 as rents from January 1, 1910, to July 1, 1917. The defendants appealed.

By the first three assignments the following contentions are made: (1) That the evidence is undisputed that Mrs. Peel, through her agents, represented to Lasater that she had been forced to leave her husband by reason of his conduct toward her of such a nature as to constitute just cause for leaving him, and , that she was in destitute circumstances, and that it was necessary for her to sell her interest in the land in controversy for her support and maintenance; (2) that Lasater believed such representations to be true; (3) that he relied thereon, and was induced thereby to accept a quitclaim deed from her to her interest in the land and pay her $500 for such conveyance; (4) that plaintiff had actual and constructive knowledge of the execution and delivery of said deed, and of the representations made to Lasater, and that Lasater was induced thereby to accept the conveyance from Mrs. Peel, and claims under a deed by Peel and wife executed subsequent to the execution by her of the deed to Lasater. xAssuming the proof to be as above stated, appellants’ theory is that he acquired title by estoppel as against Mrs. Peel, and that such estoppel operates against Jamison, and therefore the latter cannot recover the half interest in the land claimed by Lasater.

The appellants did not request the submission to the jury of the issues covered by the foregoing statement, but, after the jury had returned its verdict, filed a motion, requesting the court to render judgment in their favor by reason of the matters above stated, which was overruled.

The trade between Mrs. Peel and Lasater was negotiated by Mr. Maupin, Lasater’s foreman, in whose employ Mrs. Peel was at the time. Maupin testified that he conducted the negotiations at the instance of both parties. Mrs. Peel testified she asked a Mr. James to try to dispose of her interest; that after two or three months Maupin told her Lasater would buy the property. Mrs. Peel did not recollect anything particular that was said, other than that it would be a good thing to sell the property so that she could get necessaries. Maupin testified:

“She said the reason she wanted to sell was that she had lived with Peel and had had the property, and that Peel had run her off, and she was afraid he was going to beat her entirely out of it. and she would like to sell her interest, whatever she might have, to get something out of it.”

1-Ie also testified:

“She said something about wanting to go back where her children were; she said she wanted to go back to North Dakota, or one of the Dakotas.”

The foregoing constitutes all of his testimony as to what Mrs. Peel told him. He then testified that Mrs. Peel at that time had no other means that he knew of than “this property” other than the wages he paid her; that he told Mr. Lasater about all this.

Lasater testified that Maupin stated that Mr. Peel had run Mrs. Peel off the place, and that she was middle-aged and destitute, and wanted to get some money to go to some relatives in the North. He testified that the condition that Maupin stated Mrs. Peel was in is what induced him to make the purchase. Lasater owned land all around the land in controversy, and knew that Peel was living on said land with his children at the time he accepted the deed from Mrs. Peel. One of Peel’s daughters and Mrs. Erith, the widowed daughter of Mrs. Peel, who had four or five children, also lived on the land, in a different house from the one used by Peel and some of his children.

Jamison testified that in behalf of Peel he offered to pay Lasater the $500 he had paid Mrs. Peel if he would reconvey, but Lasater demanded $750. This was shortly after Mrs. Peel conveyed to Lasater.

In order to be entitled to a judgment notwithstanding the verdict, a party must be able to show that undisputed facts, other than those involved in the findings of the jury, entitle him to a judgment, even though the facts found by the jury are taken as true. It is a well-known rule of law that the unsupported testimony of an interested party may be disregarded by a court or jury, and this is especially true when there are any circumstances which tend to discredit the same. The question whether Lasater relied on and was induced by the representations made to him to purchase from Mrs. Peel was one for the jury. In this connection it will be noticed that he did not claim that any representations with respect to the cause of her leaving her home induced him to buy, but that the condition Maupin stated she was in was what induced him to make the trade. There was no evidence that Maupin represented that it was necessary for Mrs. Peel to sell her interest in the land for her support and maintenance. The assignment is based on the theory that Lasater was told that Mrs. Peel left home on account of certain conduct of her husband which justified her in doing so, while Lasater’s testimony is that he was told that Peel ran her off. There is absolutely no testimony that Jamison knew anything concerning what was said by Maupin to Lasater with regard to Mrs. Peel’s troubles or financial condition. In view of the condition of the evidence the court was correct in overruling the motion. We are also of the opinion that had the state' of the evidence been as contended for in the motion, it would have been the duty of the court, in view of the rules of law applicable thereto, to have overruled the motion.

The husband is by statute made the managing head of the family, and appointed to make conveyances of community property, unless the same be the homestead, in whic-h case the wife’s joinder in the conveyance is required. An • exception has been established by our decisions, applicable in extreme cases.. This exception has been often stated and discussed, and is clearly defined in Railway v. Redeker, 75 Tex. 310, 12 S. W. 855, 16 Am. St. Rep. 887. .

Unless the facts exist which create the exception, a deed by the wife alone is void. Bbt here it is contended that, though the deed is void, the wife can, by representations, estop herself from claiming the land she attempted to convey, and that the subsequent purchaser from the husband and wife, .who deems it advisable to demand her signature because the home is situated upon the land, is in no better attitude than the wife as to the interest she attempted to convey by her sole deed.

The question whether a married woman can by representations with regard to her capacity to contract estop herself as to property conveyed by her alone is annotated in L. R. A. 19160, and discussed by Mr. Bige-low in his work on Estoppel (6th Ed.) p. 621. In this state the courts have, in many instances, refused their aid to married women suing to recover land, when they have been guilty of a positive fraud. It has been held that if a married woman represents that she is unmarried, and thereby induces a person to purchase her separate property from her, she is estopped to recover the property sold by her. Keller v. Lindow, 133 S. W. 305; Jones’ Estate v. Neal, 98 S. W. 417, 44 Tex. Civ. App. 412. . In such cases there was nothing to put the purchaser on guard with respect to the capacity of the woman to make a good conveyance, but when a person contracts with a woman whom he knows to be married, being chargeable with knowledge of the law, he knows he is dealing with her at his peril. He knows that the law does not vest in the wife the power to convey the community property unless the husband has abandoned the administration thereof, dd-serted his wife, and reduced her to the necessity of providing for herself and of taking care and charge of the community property. In this case the husband was in charge of the community property, residing thereon with hisi children, whom he was supporting, as .well as his wife’s daughter and grandchildren. Lasater knew that Peel was residing on the land, and under the law, even if he had not known it, every person dealing with land must! take notice of an actual possession. We have found no case in which it has been held that a married woman can estop herself to claim community property conveyed by her alone, withouti her husband’s consent, even though she falsely represents that her husband has abandoned her, and that she is in destitute circumstances. If the suit were by the wife alone, or by some one claiming under her only, and with full knowledge of her representations, the court might perhaps properly decline to permit it to be asserted that her deed was a nullity, but surely no estoppel would apply if the husband or his grantee sued to recover the land, and it is difficult to see how the joinder of the wife in the conveyance, procured in this case because of the fact that a part of the land had been impressed with the homestead character, could affect the rights of the purchaser. To say that the wife only conveyed her community interest in the property, and therefore the husband is not deprived of any rights, is fallacious. He has the absolute and sole right to sell and convey the property, and to give effect to the acts of his wife as against his grantee is to deprive him of his statutory rights; When she makes a quitclaim deed and conveys only her interest, which the purchaser understands to be her community half, the transaction on its face shows that she is not undertaking to act under the exception recognized by the court, which authorizes her to convey both halves. So far as this case is concerned, we deem it unnecessary to lay down the broad proposition that there can be no estoppel by reason of representations of the .wife as to her power to sell community property, and we also deem it unnecessary to decide whether Jamison was chargeable with knowledge of her representations from the fact that he knew she had made a deed. We deem it sufficient for the purposes of this case to hold that there can be no estoppel by reason of representations of the wife when the husband is in possession of the land and fulfilling his duties as custodian thereof. The purchaser is by such possession put upon notice that the wife may not have the power to convey, and he cannot rely upon her statements any more than a buyer from the husband and wife of property occupied by them can rely upon their representation that it is not their homestead. To hold otherwise would practically abrogate the statute. The assignments are overruled.

It will be appropriate to consider in this conneclion the theory of appellants that acquiescence on the part of Peel, after the conveyance by his wife to Lasater, would impart validity to her deed. Appellants Complain of the failure of the court to submit the issue: “Did R. W. Peel, after the sale by Mrs. L. J. Peel to Ed. O. Lasater acquiesce in such sale?” There was no contention that Peel ratified his wife’s act by any conveyance. Her deed being a nullity, it could not be vitalized by a subsequent acquiescence, but could only be ratified by an act having the essential elements of a conveyance. Merriman v. Blalack, 56 Tex. Civ. App. 594, 121 S. W. 552; Holland v. Votaw, 62 Tex. Civ. App. 91, 130 S. W. 882. The court therefore did not err in refusing to submit the issue requested.

Wé are of the opinion that the court erred in submitting the first special issue, for the reason that the answer thereto would establish no fact or issue in the case, but merely the jury’s opinion as to whether a sufficient ground existed to justify Mrs. Peel in leaving her husband. The real issue was whether her husband abandoned her, and if there was any evidence of such abandonment, we see no reason why the question should not be asked direc-tly. In this case the wife left the husband, and we find no evidence in the record which would justify a finding that he abandoned her. Appellants rely upon Mrs. Peel’s claim of certain misconduct on his part, and that he allowed his children to mistreat her, to establish abandonment of her on the theory that she was thereby driven away from home. If the matters relied on were deemed sufficient to constitute abandonment, if found to be true, the jury could be instructed to that effect, and their answer to the issue Of abandonment made to depend on the finding as to such contentions. Or the question could have been asked whether Mrs. Peel left home on account of the matters thus relied on, thus leaving it to the court to determine the legal effect of such acts. It would not have been proper to ask the jury, as requested by defendants, to state the reason for Mrs. Peel leaving home. The answer would very likely be inconclusive and furnish no basis for - a judgment.

Although the court erred in submitting issue No. 1, and the answer thereto cannot be used as any basis for supporting the judgment, we consider the error an immaterial one for two reasons: First, there was no evidence justifying a finding of abandonment of the wife by the husband, such as would authorize her to convey the community property, which it must be remembered was in his possession; second, the answer of the jury to the second issue is supported by the evidence, and the finding thus made required the entry of judgment in favor of plaintiff.

The comí; instructed the jury as follows:

“The burden of proof rests upon the plaintiff to establish by a preponderance of the testimony the facts-constituting his cause of action, and likewise the burden of proof rests upon the defendants to establish by a preponderance of the evidence the fapts constituting their defense to plaintiff’s cause of action.”

This charge is not as clear as it should be. In a special issue case the court should point out specifically the issues as to which the burden of proof is upon the plaintiff and those as to which it is upon defendant. The burden of proof was upon, defendant as to all issues submitted in this case except the fifth one, and there is no testimony pointed out which shows that Lasater was probably injured by reason of a failure to instruct the jury that the burden of proof as to such issue was on plaintiff. Maupin, Lasater's foreman, testified that 20 cents per acre was the reasonable rental value of the land for the time sued for, and Lasater testified that Maupin’s statement was about correct. The error of the court in not making his instruction more specific is one which could not have injured the appellants, and the assignment complaining thereof is overruled.

Complaint is made of that part of the judgment awarding a recovery against Las-ater for rents, the contention being that, as no issue was submitted as to the length of time the land had been in possession of Lasa-ter, and no issue as to the quantity of land so held, and no request made by either party for the submission of such issues, the plaintiff could not recover rent. There is no merit in the contention. Article 1985, R. S. 1911. No contention is made that there is no evi-deuce which would justify the court in mailing findings on the two issues, such as, together with the finding of the jury as to rental value, would support the judgment for rents rendered by the court.

All assignments of error are overruled, and the judgment is affirmed.
      ¡¡&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    KANSAS CITY, M. & O. RY. CO. OF TEXAS v. ESTES.
    (No. 852.)
    (Court of Civil Appeals of Texas. El Paso.
    May 2, 1918.
    On Rehearing, June 6, 1918.)
    1. Master and Servant <g=285(ll)— Injuries to Servant — Proximate Cause — Questions of Fact.
    Where his foreman had notified plaintiff, who was a switchman, that he would make a switching movement by “shoving” instead of •‘kicking” a string of cars, and plaintiff while on top of the cars, noticing the foreman’s absence, went back along the cars to look for him, as it was his duty to do, and was injured by falling between the cars when uncoupled by the foreman, who, without notifying plaintiff, had changed' the method of switching and was preparing to “kick” the cars, the question as to whether the change of method was the proximate cause of the injury was for the jury.
    2. Master and Servant @=226(1) — Injury to Servant — Assumption of Bisk —Master’s Negligence.

      A servant does not assume the risk of his master’s negligence, nor is he required to anticipate sueh negligence.
    3. Master and Servant @=397(5) — Proximate Cause of Injury.
    The action of a switching foreman in releasing coupling, without warning, causing a string of cars to part as a switchman was stepping from one car to another at the point of separation, was negligence proximately causing the injuries to the switchman from falling from the cars, if the foreman, at the time of releasing the coupling, in the exercise of ordinary care, could have reasonably anticipated that the switchman might be at the point of separation and injured by the unexpected parting, and.it was not necessary, for such action to be the proximate cause of the injury, for the foreman to have known as a fact that the switchman was at that place.
    4. Trial @=352(1) — Injury to Servant — Special Issues.
    In an action for injury to a switchman due to falling between cars uncoupled by his foreman, it was not error to refuse to submit a special issue as to whether the injury was the result of an accident, which defined “accident” as a thing which occurs without fault of any person; such definition being misleading in not defining the word “fault.”
    5. Master and Servant @=97(5) — Injury to Servani>-Anticipated Besult.
    Where switchman was injured by falling between cars uncoupled by his foreman, the action of the foreman was negligent if, in the exercise of ordinary care, the foreman might reasonably have foreseen that, when he uncoupled the cars, the switchman might be in the act of stepping from one car to another, and it was not necessary, for the act to be negligent, that the foreman should have foreseen that the switchman would be so doing.
    6. Trial @=350(2) — Special Issues — Form and Substance.
    In submitting cases upon special issues, the court should submit the ultimate controlling issue of fact, and not confuse the jury by requiring them to answer a mass of minor and evidentiary issues.
    7. Master and Servant @=88(1) — Liability for Injuries — Defenses.
    That plaintiff has procured employment by false and fraudulent statements contained in his application for employment is no defense to an action against his employer for injuries.
    Error from District Court, Tom Green County; C. E. Dubois, Judge.
    Action by P. L. Estes against the Kansas City, Mexico & Orient Kailway Company of Texas. Judgment for plaintiff, and defendant brings error.
    Affirmed,
    H. 'S. Garrett, of San Angelo, Ellis Doutliit, of Sweetwater, and Alexander, Baldwin & Bidgway, of Ft. Worth, for plaintiff in error. Leonard M. Levy, of Ft. Worth, Blanks,Collins & Jackson, of San Angelo, McLean, Scott & McLean, of Ft. Worth, and Lea, Mc-Grady & Thomason, of El Paso, for defendant in error.
   HIGGINS, J.

Estes, defendant in error, was in the employ of the Kansas City, Mexico & Orient Kailway Company, plaintiff in error, in the capacity of switchman in the yards at San Angelo. He was under the direction and control of the foreman and yardmaster, Chambers. He was a member of a switching crew, which at the time of the accident complained of was composed of himself, Chambers, an engineer, and fireman, all working under the direction, and control of Chambers. On October 7, 1914, this crew had occasion to handle a train which had arrived from the West. In this train were IS cars of live stock next to the engine, and the remainder of the train consisted of 14 box cars containing perishable freight. It was desired to immediately forward the 14 box cars eastward. It was alleged by Estes that Chambers explained to the crew that the switching movement would be made in this wise: That the rear end of the train consisting of the 14 box cars would be shoved west down the main line beyond a Y-switch, and the engine would then pull the 18 cars of live stock back and past switch and then shove them in on the switch. It was further alleged that the engine coupled onto the train, and Chambers caused the train to be handled in a manner different, from what it had been explained the movement would be made, and contrary to the instructions and directions previously given Estes; that the engine coupled onto the train and began to shove the same west; that during the movement, Estes, in the discharge of his duties, was walking on top of the train; that when the train had been shoved a short distance, and just as Estes was stepping from one car to another, Chambers, without warning, negligently released the coupling between the two ears and signaled the fireman and engineer to so control the movement of the engine that the cars would part; that at the time the cars were uncoupled, Estes was on top of the train, Chambers was on the side of one of the cars, and the engineer and fireman were in the engine cab, and that Estes was in such position that he could not be seen by. the other members of the crew; that the separation of the train and kicking of the cars in the manner indicated was contrary to the instructions and directions previously given; and that Chambers knew, or in the exercise of ordinary care would have known, that Estes was relying on the directions he had previously received, and that he was expecting the cars to be shoved down the track, and was not expecting them to be kicked as was done.

The case was tried before a jury, and submitted upon special issues. The issues and answers are as follows:

Special Issue No. 1: At the time he released the coupling which caused the string of cars to part, did the. foreman, Chambers, know that plaintiff was on top of said string of cars? Answer Yes or No. Answer: Yes.
Special Issue No. 2: At the time he released the coupling which caused the string of cars to part, could the foreman, Chambers, by the exercise of ordinary care, have known the whereabouts and the position in which plaintiff then was? Answer Yes or No. Answer: No.
Special Issue No. 3: At the time the foreman, Chambers, released the coupling which caused the string of cars to part, did he, by word of mouth or other signal of warning, apprise plaintiff of his intention to then cut the cars? Answer Yes or No. Answer: No.
Special Issue No. 4: If you have answered special issue No. 3 No, then state if such failure of the foreman to so warn plaintiff was negligence which proximately caused or contributed to cause the injuries of plaintiff, if any. Answer Yes or No. Answer: Yes.
Special Issue No. 5: Had the foreman advised or instructed plaintiff, or explained, within the presence and hearing of plaintiff, prior to the switching operation in controversy, how such switching would be done and performed? . Answer Yes or No. Answer: Yes.
Special Issue No. 6: If you answer special issue No. 5 Yes, then answer: Did the foreman handle the cars in the manner in which he had advised plaintiff the same would be handled? Answer Yes or No. Answer: No.
Special Issue No. 7: If you have answered special issue No. 6 No, then did said foreman advise plaintiff that said switch operation would not be done in the manner in which he had previously advised plaintiff it would be done? Answer Yes or No. Answer: No.
Special Issue No. 8: If you have answered special issue No. 7 No, then was such failure of said foreman to so advise plaintiff negligence which proximately caused or contributed to cause plaintiff’s injuries,, if any? Answer Yes or No. Answer: Yes.
Special Issue No. 9: Did the plaintiff sustain the injuries, or any of the injuries, alleged in his petition upon the occasion in question? Answer Yes or No. Answer: Yes.
Special Issue No. 10: If you have answered special issue No. 9 Yes, then what amount of damage, if any, do you find plaintiff has sustained by reason of such injuries? Answer this in dollars and cents. Answer: $16,750.
Special Issue No. 11: In being in the position and place iñ which you may believe and find from the evidence plaintiff was at the time the string of cars parted, was the plaintiff himself guilty of negligence which proximately contributed to cause his injuries, if any? Answer Yes or No. If yon answer this issue No, you need not consider special issue No. 12. Answer: Yes.
Special Issue No. 12: If you have answered Yes to either special issue No. 4 or special issue No. S, and have also answered Yes to special issue No. 11, you will then answer to what extent do you diminish the total damages assessed by you in answer to special issue No. 10? Answer this in dollars and cents. Answer: $4,-187.50'.
Special Issue No. 13: Was the injury, if any, sustained by the plaintiff, IJ. D. Estes, at the time of his fall, the result of risk of his employment assumed by him? Answer Yes or No. Answer: No.
Special Issue No. 6 (requested by defendant): (1) Did the plaintiff fail to exercise ordinary care to watch out for signals indicating the particular method of doing the work at the immediate or exact time of the actual movement which resulted in injury to the plaintiff? Answer: No. (2) If so, were his injuries the proximate result of such failure? Answer: No.
Special Issue No. 17 (requested by defendant): At the time the "plaintiff started to step from one car to the other (if you believe he was injured in that way), was the fact that the cars were being or had been uncoupled apparent to ordinary observation by one in the position Estes, the plaintiff, was at the time? Answer: No.

It is admitted that this case is controlled by the federal Employers’ Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). Plaintiff in error has filed a brief of 319 pagos, containing 47 assignments, supported by numerous propositions. The assignments will not be considered in detail, for to do so would render this opinion lengthy beyond all reason.

Assignments 1 to 6, inclusive, complain of the refusal to give a peremptory instruction for defendant. It is asserted in support thereof that the undisputed evidence discloses that the negligence of Chambers relied upon as a basis of recovery was not the proximate cause of the injury; that it shows the injury was the result of a risk assumed by Estes; further, that the injury was the result of an unavoidable accident. In addition to the facts found by the jury, there is evidence to the following effect:

The terms “shove” and “kick” are well understood among railroad men in performing their work, and have distinct meanings as applied to the work at hand, which resulted in Estes’ injuries. The fireman of the switching crew, Puett, testified:

“When you shove a train of cars, you shove them all up slowly, and when you want to stop, stop them and cut them off. When you kick a train of cars, you shove them fast, and when you get ready to cut them off, pull the pin and let part of them stop and the rest go on.”

He further testified that he did not know from the time Chambers told him they would shove the ears in on the main line that he had changed his mind until he got the ‘‘hick” signal.

Before proceeding to handle the train in question, the foreman, Chambers, gave his instructions to the crew as to the manner in which the train would be handled, and the proposed switching movement made. He told them they would “shove” the train back on the main line past the Y-switch, leave the 14 box cars on the west end of the train on the main line, then pull the IS cattle cars back east of the switch, then place the cattle ears on the Y-switch. Estes asked Chambers if he should ride the string of 14 cars, and Chambers said, “Not necessarily.” The importance of this inquiry and answer lies in the fact that if it had been the plan to “kick” the 14 cars on the main line past the switch, then it would have been absolutely necessary for Estes to have ridden them, and set the brakes when the cut of cars had reached the proper location, for otherwise these 14 cars would have been running wild without control. But if these cars were to be “shoved” back on the main line past the switch, then it was not absolutely necessary for Estes to ride that particular part of the train. This is evident, for if they are “shoved,” they are controlled by the engine, and when stopped the hand brakes are then set.

The westward movement of the entire train began with the engine on the east end. Chambers and Estes boarded same, and climbed on top of the stock cars. They then walked on top westward towards the rear, Estes •being about two car lengths ahead of Chambers. When Estes looked around and saw Chambers the last time, the latter was sitting at the corner on top of a car grasping a handhold, and with his feet on the side of the car. Estes then continued towards the rear, and then again looked back and saw Chambers was missing. Estes was then upon the string of 14 box cars. When he discovered Chambers’ absence from the top of the train, he turned back and proceeded eastward. Just as he was stepping from the string of box cars to the string of stock cars, the train at that point parted; he fell to the ground, and was very seriously injured.

The explanation of the parting of the train is that Chambers had descended the side of the train, and as it approached the switch, pulled the pin between the two strings, gave the “kick” signal to the fireman, who communicated it to the engineer, and the “kick” movement was used to place the 14 box cars west of the switch instead of the “shove” movement. The evidence shows that it is the railroad custom to decide what particular switching movement shall be used, -when the train reaches the point where the movement is to be consummated; that when the point is reached, the foreman of the switching crew determines which movement shall be used. These decisions require instantaneous determination.

Now, under the facts and circumstances stated, it is contended that Estes was guilty of negligence in turning back and proceeding towards the string of stock cars, because his duty required him to remain on the string of box cars, and Chambers could not reasonably have anticipated that he would do so, and be in a place of danger when the separation was effected; therefore the negligence, if any, of Chambers in changing the switching movement without notice to Estes,.was not the proximate cause of the injury, and that Estes’ conduct must be deemed the causal act of negligence.

We do not think that such a conclusion necessarily follows. There is ample evidence that when a switchman on top of the cars gets out of sight of the foreman, it is his duty to get where he can see the foreman, so that he can catch the latter’s signals; the switchman must keep his eye on the foreman. Estes testified that at the time the cars separated, Chambers had given him no signal, and that he was walking back to see what had become of Chambers, and to be in the neighborhood of the stock cars that were to be shoved on the Y; that it was his duty, when those cars were shoved on the Y, to set the brakes on same on the Y; that he did not know what had become of Chambers from the top of the car; whether he had fallen or not, and he was looking for him, going along, looking from one side to the other.

Harry Rogers, an expert in the matter of train movements, referring to Estes’ duty on top of the train while the movement was being made, testified:

“When the foreman went beside the car, if he was two car lengths or a car and a half length from Estes, it was Estes’ duty to go on up there and see what he was going to do, or get down on the ground and go see — after the foreman changed his mind and Estes thought he was going to do a thing, he should have seen where he was and known what he was going to do. When Estes saw Mm leave the corner of the car, it was Estes’ duty to go up there and see what he was going to do.”

Assuming the truth of plaintiff’s evidence, it would appear that he was misled by the instructions given by Chambers prior to the time the movement began, and that Estes was in the performance of a duty while going back to look for Chambers who had disappeared from the corner of the car, where he had been last seen a short time before. Estes was in the performance of this duty at the time Chambers cut the train in two, and signaled the engine crew without Estes’ having an opportunity to know of this changed plan. Chambers knew that if he disappeared from the sight of Estes under the circumstances, it would be in the line of Estes’ duty to walk back on top of the cars and see what had become of him, or try to get in his sight for further signals. Therefore, under the circumstances, it was an issue of fact whether it should, have been reasonably anticipated by Chambers that Estes might be passing from the top of the box cars to the top of the stock cars at the time of the separation, and thus result in injury to Estes. This was a question of fact, and includes the proposition that the change in the plan of movement without notice to Estes was a proximate cause of the injury.

As to the assumption of risk, it is sufficient to refer to the general rule that the servant does not assume the risk of the master’s negligence, nor is he required to anticipate such negligence. The facts detailed present no exception to this rule which would authorize a peremptory instruction in defendant’s favor. Neither is there any merit in the contention that the undisputed facts show that the injury was the result 'of an unavoidable accident.

Under the seventh, ninth, and tenth assignments, it is claimed that defendant was entitled to judgment because of the answer to issue No. 2. The issue reads:

“At the time he released the coupling which caused the string of cars to part, could the foreman, Chambers, by the exercise of ordinary care, have known the whereabouts and the position in which plaintiff then was?” This was answered “No.”

This question in the language used should not have been submitted. It refers to the question of proximate cause, but does not properly present tbe issue involved. The evidence shows that Chambers was riding on the side of the car when he pulled the pin and gave the “kick” signal, and in a position where he could not possibly see Estes. Manifestly, he could not have known the whereabouts and position Estes was in. The jury could not have answered the question as it was framed, other than it was answered. All that the law required to make Chambers’ negligence a proximate cause of tbe injury was that in the exercise of ordinary care he could have reasonably anticipated that Estes might be at the point of separation, and be injured by an unexpected parting of the train at that point. Railway Co. v. Bigham, 90. Tex. 223, 38 S. W. 162. The effect of the contention here made is that it was necessary that Chambers must have known that Estes would be there. This is not the law. It is sufficient, so far as this point is concerned, that the jury and trial judge have found that Chambers in tbe exercise of ordinary care should have reasonably anticipated that plaintiff might be at that place when the train was cut

It is claimed by the eighth assignment that defendant was entitled to judgment because tbe jury in answer to tbe eleventh issue found that plaintiff was guilty of contributory negligence in being in tbe position and place he was at the time the string of cars parted; and in view of the answer to the second issue, such negligence of Estes must be deemed the causal act of negligence. For reasons indicated above, the finding upon issue 2 is not controlling, and the jury, and trial court have found that Chambers’ negligence was a proximate cause of the injury. In view of the comparative negligence feature of the federal Employers’ Liability Act, tbe contributory negligence of Estes merely diminished his recoverable damages.

Those assignments which assert that the findings of the jury are so conflicting that a judgment for plaintiff could not properly be rendered thereon are disposed of by what has heretofore been said.

The finding of the jury in response to the second issue for the reasons so indicated is not in conflict with the finding of the jury convicting Chambers of negligence which embraces the question of proximate cause; and as to the finding of contributory negligence,1 this is not a complete but partial defense only.

The thirteenth assignment complains of the exclusion of certain testimony of the witness Chambers. In this we think there was no error.

Error is assigned to the refusal to submit this issue:

“Was the injury to the plaintiff the result of an accident? In connection with .vour answering the above question, you are instructed that an ‘accident’ is a thing that occurs without fault of any person.”

We do not think the evidence in this case raises the question of accident. It presents the issues of negligence, vel non, on the part of both Chambers and Estes, also of assumed risk, but in our opinion does not raise the issue of accident so as to require a special submission thereof. Furthermore, the requested charge was properly refused because it was calculated to be misunderstood by tbe jury, and as presented did not give the jury any clear idea of a correct principle of law, and called more for the expression of the opinion x>f the jury upon a question of law than for a finding upon any spoil lie question of fact. The question in itself, “Was the injury to the plaintiff the result of an accident?” could have different meanings. It could be said that every unintentional injury is an accident in the sense that it was not intended, was not known that it would happen.

However, many accidents are attributable to negligence. When we come to consider the definition of the word “accident” as given in that charge, the jury are still left to form their own idea of the meaning of the word “accident,” or rather to decide for themselves as to what the law should be. The definition says that “accident” means without the fault of any person. What does the word “fault” mean? The requested charge does not define its meaning, nor is there any definition given in the main charge. It has been held that a requested charge, even though otherwise proper, may be refused where some language therein requires definition or explanation. Railway v. Taylor, 79 Tex. 104, 14 S. W. 918, 23 Am. St. Rep. 316; Phoenix, etc., v. Neal, 23 Tex. Civ. App. 427, 56 S. W. 91. If the charge had asked whether the injury happened from an accident that could not have been reasonably foreseen by the use of ordinary care, it would not have been so objectionable. The jury might feel that under a certain state of facts there was or was not fault upon a particular person, yet when they are asked to find whether- a particular act is negligence, or whether it could have been reasonably foreseen, and these terms have been defined by the charge of the court, so that the jury cannot misunderstand them, then they are not allowed to exercise their opinion of whether a person was at fault, but are required to find whether, under the evidence, a certain fact within the meaning of the court’s charge has taken place. Under the court’s charge they were not allowed to substitute their own opinion of what was right, and wrong, or whose fault it was. To have given the charge would have in some degree conflicted with the court’s definition and substituted the variable standards of jurors as to what the law should be.

Under the sixteenth assignment, complaint is made of the refusal to submit this issue:

“Ought the yardmaster, Chambers, to have foreseen, in the light of the attending circumstances, that when he pulled the pin and the cars parted, that Estes would be in the act of stepping from the box or fruit car to the stock car (if you find that he was so stepping at the time), and that Estes would fall and be injured as tile natural and probable consequence of pulling the pin and parting the cars?”

This charge was properly refused, because to have found as desired by defendant would have required a finding that Chambers not only should have foreseen that plaintiff “might” be in the act of stepping from one car to the other at the time they separated, but required that Chambers should have foreseen that plaintiff “would” he in fact in such act of stepping from one car to the other. This is not the law. The requested charge in effect required a finding that Chambers actually knew or should have known that plaintiff would positively be at the place in question when he uncoupled the train, before Chambers’ act could be found to be a negligent one; whereas, the law only required a finding that Chambers should have foreseen that plaintiff might be there to justify a finding of the act being negligence. The difference is so plain as not to require argument. Besides, the issue of anticipated consequences was fairly covered in the court’s charge on proximate cause.

The reasons assigned for overruling the sixteenth assignment apply equally to assignments 17 to 25, inclusive, which are also overruled.

Assignments 26 to 41, inclusive, complain of what is claimed to be a refusal on the part of the trial court to affirmatively submit defensive issues that plaintiff’s own negligence was the sole proximate cause of his injury. These issues were sufficiently covered in the issues submitted, aud charge given in connection therewith. There is this further objection to these requested issues, and to practically every issue which defendant requested the court to give, namely, that they are upon minor or evidentiary facts, and not upon the ultimate controlling facts. In submitting cases upon special issues the court should submit the ultimate controlling issues of fact, and not confuse the jury by requiring them to answer a mass of minor and evidentiary issues. A refusal to submit issues of the nature last indicated is not reversible error. An issue as to an eviden-tiary fact is never proper, unless proof thereof- is equivalent to proof also of the ultimate fact. It is not to be commended even in such cases, for all ultimate facts should he submitted for an express finding by the jury ■without the court being called upon to deduce the ultimate fact as a necessary consequence.

There is no merit in the criticism made of the court’s definition of “ordinary care,” and “negligence,” for which reason the forty-second assignment is overruled.

Assignments 43 to 46 inclusive, assert that the answers of the jury to certain issues were incorrect as a matter of law. The contentions made in this connection seem to be a reiteration of positions taken under other assignments and disposed of by what has heretofore been said. Furthermore, an issue of fact was raised with respect to all of such issues, and it was the province of the jury to pass upon same.

By the forty-seventh assignment it is claimed that the court erred in striking out defendant’s trial amendment, setting up that plaintiff had procured employment by certain false and fraudulent statements contained in his application for employment. There was no error in this. Even if all of the facts were as claimed by defendant, it would not constitute a defense. Railway Co. v. Harris, 48 Tex. Civ. App. 434, 107 S. W. 108; Hart v. Railway Co., 205 N. Y. 317, 98 N. E. 493; Lupher v. Railway Co., 81 Kan. 585, 106 Pac. 284, 25 L. R. A. (N. S.) 707. Furthermore, plaintiff was not working under said agreement of employment at the time he was injured. Plaintiff was injured October 7, 1914. The contract of employment, set up by defendant, is dated September 11, 1913. It will he noted that plaintiff had worked for defendant on two different occasions. He went to work for defendant first, upon the occasion he signed said contract, in September, 1913; his testimony is undisputed and reads as follows:

“I worked for the defendant as yardmaster at Sweetwater a little over a year, when the position was abolished; after that place was abolished. 1 went to work for the Rock Island at Et. Worth. I afterwards came back to the Orient as switchman in the yards at San Angelo.” “At the time I got hurt, I had been working for the Orient the last time about a month and a half. How came me to come out here to go to work, Mi-. Noessel, the trainmas-ter, wrote me a letter to come back, that my job would be put on at Sweetwater eventually, and he would put me on the yard at San Angelo till he put me back as yardmaster at Sweetwater.”

It is perfectly apparent that the contract relied on by defendant had reference to the first time plaintiff was employed by defendant when he worked a little over a year. Then he severed his relations with the defendant. Eater he took another employment from it. There is no rule of law that would justify defendant in holding that the contract of the first employment should control the second employment.

All contentions made by plaintiff in error to which specific reference in this opinion has not been made have been considered and are regarded as without merit. Finding no error, the judgment is affirmed.

WAETHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.

On Rehearing.

In the original opinion it is said:

“The evidence shows that it is the railroad custom to decide what particular switching movement shall be used when the train reaches the point where the movement is to be consummated. That when the point is reached, the foreman of the switching crew determines which movement shall be used. These decisions require instantaneous determination.”

In this connection it should be further said that the record justifies 'the conclusion that when Chambers decided to cut the train in two and make the movement different from the order he had previously given, he should have signaled, or notified Estes in some way before he gave the order to the engineer to operate the train in such manner as would cause it to part in the manner it did.

The motion for rehearing of plaintiff in error h£s been carefully considered, and we see no occasion to recede from the views expressed in the original opinion. The motion is therefore overruled.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    GODSHALK v. MARTIN et ux.
    (No. 1359.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 15, 1918.)
    1. Appeal and Error &wkey;>436 — Proceeding in Cause Pending Appeal.
    Tlie appeal from a judgment rendered in an action to set aside a former default judgment deprived the district court of authority to proceed with the trial of the former cause on the merits until the judgment rendered in the cause setting aside the judgment had been finally disposed of on appeal to the Court of Civil Appeals.
    2. Appeal and Error &wkey;>1166 — Appeal Pending Appeal to Set Aside Default Judgment — Disposition.
    An appeal from a judgment rendered in a cause while the appeal from the judgment in an action to set aside the former default judgment therein was pending in the Court of Civil Appeals must be reversed.
    Appeal from District Court, Hartley County; Reese Tatum, Judge.
    Suit by A. L. Godshalk against J. P. Martin and wife. Judgment for defendants, and plaintiff appeals.
    ¡Reversed and remanded, with instructions.
    Bailey & Richards, of Dalhart, for appellant. Art Schlofman and R. E. Stalcup, both of Dalhart, for appellees-
   HALL, J.

This suit was filed by appellant, Godshalk, September 18, 1912, in the district court of Hartley county, Tex., and was numbered 773 on the docket of said court. On the 25th day of February, 1913, after a showing of service of notice to serve nonresident defendants, appellant obtained a judgment by default. On the 20th day of February, 1917, upon motion of appellant filed in the same cause, a clerical error in the default judgment was corrected. On the last-named date appellees filed their suit in said court to set aside both the original and corrected judgments. This last suit was numbered 987 on the docket of said court, and on the 21st day of August, 1917, judgment was rendered in cause No. 987, setting aside the former judgments entered in favor of appellant in cause No. 773. From this last judgment entered in cause No. 987, after notice of appeal duly given, an appeal was prosecuted to this court and the judgment was here reversed and reminded January 23, 191S. See Godshalk v. Martin, 200 S. W. 535. While that appeal was pending in this court, cause No. 773 was tried in the district court of Hartley county, resulting in a judgment for appellees on the 23d day of August, 1917. From that judgment this appeal is prosecuted. The appeal from the judgment rendered in cause No. 987 deprived the district court of the authority to proceed with the trial of cause No. 773 upon the merits until the judgment rendered in cause No. 987, setting aside the judgment in cause No. 773, had been finally disposed of here. The trial court should have upon its own motion continued cause No. 773 until final judgment in cause No. 987. This appeal, therefore, from a judgment rendered in cause No. 773, while the appeal from the judgment in cause No. 987 was pending in this court, must be set aside.

The judgment is therefore reversed and the cause remanded, with instructions to continue cause No. 773 without prejudice to either party until there is a final judgment in cause No. 987.

Reversed and remanded.

HUFF, O. J., not sitting, being absent in Austin with commission of Judges, passing on writs of. error for Supreme Court.