author: HUFF, C. J.

text:
    ECKERT et al. v. STEWART et al.
    (No. 1362.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 13, 1918.
    Rehearing Denied Dec. 11, 1918.)
    1. Deeds ©=56(3) — Delivery—Necessity.
    Eor a deed to operate as a conveyance, there must have been delivery with intent and purpose on the part of the grantor to relinquish control of the deed.
    2. Deeds ©=61 — Delivery to Third Person —Effect.
    Where a grantor parts with all control over his deed when he delivers it to a third person for delivery to the grantee on the grantor’s death, the conveyance takes immediate effect, and vests in the grantee, title to commence after the grantor’s death.
    3. Wills ©=88(4) — Deed or Will — Delivery to Third Person — EffecI.
    When the grantor in a deed reserves control of the deed or right to dispose of the property during his life, or a deed is deposited with a third party, but under control of the grantor, and not to take effect until after his death, such control renders the instrument testamentary in character, with the right of revocation in the grantor.
    4. Deeds ©=108 — Delivery to Third Person — Effect.
    Where a grantor who delivered a deed to a third person, with directions that it should not take effect until his death, retained control of the same, the property, on death of the grantor, passed to the grantee if not otherwise disposed of.
    5. Deeds ©=177 — Delivery—Evidence.
    A grantor who delivered a deed to a third person, with directions it should not be delivered to the grantee until his death, held to have retained control of the same, so the deed never became effective, the grantor having otherwise disposed of the land by will.
    6. Adverse Possession «5=70 — Three-Year Statute — Applicability.
    The grantee in possession under a deed, control of which the grantor retained during life, held not to trace his claim of title through a regular chain of transfers, etc., and so the three-year statute of limitation was not applicable in a suit by those claiming under the will.
    7. Limitation of Actions «5=72(3) — Running of Statute — Minors.
    Limitations held not to run during the minority of legatees claiming under the will of a grantor, who during life retained control, etc., of the deed under which the grantee therein named claimed.
    8. Appeal and Error ©=1180(3) — Reversal —Effect on Parties Not Appealing.
    Adults who did not answer, and against whom default judgment was rendered, are not entitled to relief, though the judgment, which was adverse to other parties having the same title, was reversed on the appeal of such parties.
    9. Subrogation ©=23(6) — (Right to.
    A grantee named in deed which never became effective, because the grantor during his life retained control thereof, held not subrogated to the lien of vendor’s lien notes against the property, which he discharged.
    10. Infants ©=116 — Appeal—Protection of Minors Not Appealing.
    The appellate court, on reversing an adverse judgment on appeal of some of the parties, etc., will protect the interest of minors having the same title, though they did not appeal.
    Appeal from District Court, Armstrong County; Hugh L. Umphres, Judge.
    Action by Otto Eckert and others against S. B. Stewart and others. From a judgment for defendants, plaintiffs appeal.
    Reversed in part and affirmed in part.
    Reeder & Reeder and J. B. Dooley, all of Amarillo, for appellants.
    J. N. Browning and L. C. Barrett, both of Amarillo, and J. S. Stallings and W. A. Wilson, both of Claude, for appellees.
   HUFF, C. J.

This is an appeal from a judgment rendered upon an instructed verdict. The assignments present as error the refusal of the court to instruct a verdict for the appellants, and the refusal of requested charges submitting certain issues of fact and error on the part of the court in taking the case from the jury and directing a verdict. The questions involved will require a somewhat lengthy statement of the facts and issues.

The controversy is over the title to a section of land in Armstrong county (section No. 177, block B4), which was owned by C. W. Stewart and his wife, Mary Stewart, during their lifetime, and a part of their community estate. The question involved Is whether the land passed to S. B. Stewart by deed to him from C. W. and Mary A. Stewart, or passed by their will to the named children and grandchildren of C. W. and Mary Stewart, as joint residuary devisees. The plaintiffs, appellants here, Otto Eckért and his wife, Minnie Eckert, Q. D. Black and his wife, Hermie Black, and Charles Taylor, filed their first amended original petition June 15, 1916, making new parties. The parties defendant are S. B. Stewart, Mrs. Joe Stewart, Ida Stewart, Charles Stewart, Jr., Nannie Stewart, C. K. Stewart, Charles Stewart, Ambrose Stewart, Jr., May Stewart, and Jeb Stewart. The petition set up the respective interests of the plaintiffs and defendants to the section of land under two wills, properly probated, one by O. W. Stewart, the father and grandfather of the parties, and one by Mary A. 'Stewart, the mother and grandmother of the jjarties. The respective interests of the parties, as set out in the petition under the two wills, it is not deemed necessary to state at this time. The petition sought to have the interests of the respective parties ascertained and the land partitioned between them. The original petition of the plaintiff declared against S. B. Stewart alone in trespass to try title, suing for their alleged interest in the land. That petition was filed September 23, 1915. The amended original petition set out more fully their claim under the will, but no new parties were brought in by the amendment, which was filed June 15, 1916. J. B. Stewart answered by general denial and not guilty, and specially alleged that at the time C. W. and Mary A. Stewart made their respective wills that they had no legal title to the land, but that the section belonged to S. B. Stewart. He also pleaded in bar the three and five year statutes of limitation against all parties. Mrs. Joe Stewart, the wife of S. B. Stewart, adopted the answer of her husband. The minors, Ida Stewart, Charles Stewart, Jr., Nannie 'Stewart, Mur-rill Stewart, Ambrose Stewart, Jr., and O. K. A. Stewart answered by guardian ad litem appointed by the trial court, and they adopted the pleadings of the plaintiff. By supplement answer S. B. Stewart and wife set up the right of subrogation to certain vendor’s lien notes paid off by S. B. Stewart, and also set up a deed executed by C. W. and Mary A. Stewart to the land, conveying the same to S. B. Stewart, and alleged that they did not know of the deed at the time the wills were probated and not until some time after. The plaintiffs, by supplemental petition, answered that the deed was never delivered, and would not support the statute of limitations; that the deed never passed from the control or dominion of C. W. Stewart; and they also pleaded the statutes of limitations, three, four, and ten years, against Stewart’s plea of sub-Xogation. The defendant S. B. Stewart and wife also filed a trial amendment, which at this time is not necessary to set out. The trial court directed the jury to return a verdict ih favor of S. B. Stewart against all the other parties to the suit, and judgment was accordingly so rendered. Charles Stewart, Mary Stewart, Jeb Stewart, and Ambrose Stewart filed no answer, and default judgment was rendered against them.

The appellants Minnie Eckert, Hermie Black and Charles Taylor are the children of Mrs. Sophia Catherine Stewart Taylor, a daughter of C. W. and Mary A. Stewart. Mrs. Taylor, the mother of plaintiff, died December, 1906. S. B. Stewart, Ambrose Stewart, and Charles Stewart are the sons of C. W. and Mary A. Stewart. Ambrose Stewart had no children. The minors Ida, Charles, C. K., and Nannie are the children of S. B. Stewart and grandchildren of C. W. and Mary A. Stewart. May, Jeb, Murrill, Ambrose, and O. K. A. Stewart are the children of Charles Stewart. May and Jeb were of age at the institution of the suit; the other three are minors, represented by the guardian ad litem. C. W. Stewart and Mart A. Stewart executed a warranty deed in the usual form, conveying the section of land in •question, No. 177, to S. B. Stewart. It was acknowledged in due form, and dated September 24, 1906, reciting therein the consideration to be “one dollar cash, and the assumption and payment by said S. B. Stewart of one-third of two promissory vendor’s lien notes, each for the sum of $1,493.00, with a credit of $493.00, due on November 1, 1905, respectively, payable to Wm. Brooks, Close, and Ed Ford North, for the premises hereinafter described, and section No. 139 and 179, in block B4, H. & G. N. Ry. Co., Armstrong county, Texas, and other valuable considerations”; retaining a vendor’s lien until the notes and interest were fully paid. This deed was filed for record the 20th day of April, 1911. On October 15, A. D. 1906, Wm. Brooks Close and Ed Ford North executed a release of the above vendor’s lien notes, in which release it was recited they had conveyed the three sections of land, Nos. 139, 177, and 179, to C. W. Stewart on the 25th day of August, 1902, by deed of that date, and in said deed retained vendor’s lien on-said section to secure part of the purchase money evidenced by three notes for $1,493 each, payable to the order of the grantors, November 1, 1903, 1904, and 1905, respectively, with 8 per cent, interest; that the notes had been paid to them, for which they did thereby* release, discharge, and quitclaim unto C. W. Stewart all right and title, interest and estate, to the land, etc. This release was recorded November 17, 1906. On the 27th day of November, 1906, C. W. Stewart made his will, and in the preamble thereof he recited: “Being desirous of disposing of all the estate of which I may die possessed,” he made and published the will as his last will and testament. The second clause expresses a desire that his just debts, etc., be first paid out of his estate. By the third clause he gave to his son Charles Stewart all of section 138, block B4, and also all of section 144, block B4, in Armstrong county. By the fourth clause he gave to his son S. B. Stewart all of section 179, in block B4. The fifth clause directed, after his death, that his debts should be paid out of any personal property of which he died possessed. “And if that be not sufficient to discharge all such debts, then that the remainder thereof shall be paid out of the proceeds of section No. 177, in Armstrong county, Texas.” Tile sixth clause:

“I further desire and direct that, after the payment of all my just debts, the remainder of the property of which I may die possessed, whether the same be real, personal, or mixed, choses in action or choses in possession, and wheresoeyer the same may be located or to be found, shall pass to all my children then living, share and share alike. If any shall die before I do, then the share of such a one is hereby bequeathed to the children of such decedent. And I hereby give and bequeath to my said children S. B. Stewart, of Armstrong county, Texas, Charles Stewart, of Fergus county, Montana, Ambrose Stewart, Prescott, Arizona, and Mrs. Sophia K. Stewart Taylor, of Armstrong county, Texas, all my personal estate and all my real estate or other property of whatsoever kind or character, wheresoever located or to be found, to each share and share alike, subject to the payment of all my just debts, and to the property heretofore bequeathed to S. B. Stewart and Charles Stewart, in paragraphs 3 and 4 hereof.”

By the seventh paragraph S. B. Stewart was made sole executor, without bond, and that no action be had except to probate the will, etc. On the 28th day of December, 1903, Mary A. Stewart made her will, which in every particular is the same as that of her husband, C. W. Stewart, except the sixth paragraph, in which she devises “to my beloved grandchildren, children of my beloved sons, S. B. Stewart and Charles Stewart, and my beloved daughter, Kate Taylor, deceased,” share and share alike; and is also different in that she nominated Charles Stewart and S. B. Stewart as independent executors of her will. C. W. Stewart died February 21, 1907, and S. B. Stewart in May, 1907, filed his application to probate the will of his father, C. W. Stewart, and qualified as his executor, and returned and had approved an inventory of the estate. The section of land in question was included in the inventory as the property of the estate. Mary A. Stewart died September, 1908, and in February, 1909, S. B. Stewart filed application to probate her will and to be appointed executor, which was granted, and he qualified as such executor, and in that inventory the land in question was rendered as part of the estate. The facts in this case show that S. B. Stewart knew nothing of the deed made by his father and mother, C. W. and Mary A. Stewart, September 24, 1906, until after he had probated the will. It was not delivered to him by them or placed of record until after the death of the grantors therein, and long after their wills had been probated and all debts paid out of the pea-sonal property as directed by the wills, and not until appellee Stewart went to the First National Bank of Amarillo to obtain his checks and vouchers which were in the bank preparatory to filing or making his report as executor under the two wills, when his attention was called to the envelope in which the deed was sealed up, together with some indorsements made on the envelope by the cashier when he received the deed from Mr. James, and the letter by James sealed up with the deed. G. M. James, who took the acknowledgment of C. W. and Mary A. Stewart to the deed, was justice of the peace and notary public, living at the time in Washburn. G. W. Stewart sent for James, and) he and Judge Logue went to Stewart’s place, and Logue wrote the deed. On that occasion' there were several deeds made and signed by Stewart and his wife, and the deed to the land in question was signed last. James says at the time Stewart and his wife signed it there was no one present but the three — James, the old man, and his wife. In the presence of the wife the old gentleman said he was making the deed to Sam (S. B. Stewart), and was sure Sam would not accept it during his life; that he and his wife had lived with Sam a number of years, and he felt. that they had been an incumbrance to him more than the other children. After the acknowledgments were taken to the deed, O. W. Stewart delivered the deed to James, with the request that he (James) comply with C. W. Stewart’s request, which was he—

“instructed me to put it in the First National Bank of Amarillo, with instructions to be delivered to Sam after his death, but to remain the old man’s property during his lifetime. As to the words he used, I will say that he first told me to write this note to the First National Bank, explaining to them the purpose of the deed, and I wrote the note in accordance with the request. I wrote the note at Washburn in the store, but did not write it on the same day that I took the acknowledgment to the deed. I don’t remember how long it was afterwards, but I wrote it the day I went to Amarillo and delivered the deed.”

The witness identified the note so written. The note is dated the 27th of September, 1906.

“When he talked to me about taking it to Amarillo and depositing it with the First National Bank, he said that it would remain his property, and it was my intention to write it down as nearly as I remember it at the time what he said, just as nearly as I could, and in the words that he told me.”

This note reads:

“To the First National Bank of Amarillo, Texas — Gentlemen: This deed is deposited with you under this mutual agreement that this deed is to be delivered to O. W. Stewart at any time he sees fit to demand it; but, in case he does not demand it during his lifetime, after his death this deed is to become the property of S. B. Stewart, but not until then.”

James testified that the writing conveyed the idea Stewart conveyed to him in the fewest words in which he could express it. When he handed the papers to the cashier Lowndes, the cashier said, “We had better write something on the envelope so it could be recognized at once,” and he wrote, he thinks, “The property of C. W. Stewart, to be delivered to S. B. Stewart at my death. [Signed] O. W. Stewart.” When asked if he did not tell counsel that the indorsement on the envelope was, “To be delivered to S. B. Stewart at my death,” he stated that he believed he did tell him that, but that it struck him that it conveyed the same idea as his testimony. The indorsement was at the suggestion of Lowndes, and was not Stewart’s words, and was only put on the envelope to identify the papers. The witness further stated:

“His request to me was that I put this letter — this deed — in the First National Bank, and to tell Mr. Lowndes that he was putting that deed there to be delivered to Sam at his death, but to remain his property; that he could call for it at any time during his lifetime, but if he did not call for it, and it remained in his possession, at his death to be delivered to Sam Stewart.”

James also states the old gentleman said if he left this section undisposed of it would be divided among the heirs, and that Sam was entitled to more than the others; that he was leaving some other property which would be divided. Mr. Fuqua, the president of the bank, testified substantially that some time before O. W. Stewart died he talked to him about distributing his property among his children by deed. Mr. Fuqua, who appears to have been an old business friend of Mr. iStewart’s advised him not to dispose of his property in that way, but suggested to him to do so by will. At that time there was a lawyer in the bank by the name of Douglas Wilson, and Mr. Fuqua recommended him to Mr. Stewart. Wilson was called, and he prepared O. W. Stewart’s will in Fuqua’s office at that time. Fuqua did not read the will, or did not recollect having done so. Mr. Fuqua could not recollect the date, but the will is dated November 27,1906. Two witnesses who signed the will were then employed in the bank. Mr. Fuqua appears to have known something of the deposit of the deed in question with the bank at the time of the conversation with Stewart. O. W. Stewart told him Sam was to pay some indebtedness against that section or had done so, and that he wanted to let Sam have that land. He could not fix the time this conversation occurred with reference to making the will or any of the conversation. S. B. Stewart said he paid off the vendor’s lien notes mentioned in the deed, and offered in evidence his canceled checks dated November 7, 1906, together with a letter from the cashier of the bank sending to him canceled notes, etc. 'S. B. Stewart did not learn of the deed until after both wills were probated. In notifying the plaintiffs that he had the deed he- did not at the time tell them of the letter placed up with the deed, as he considered it his land after his father’s death. It is agreed that the personal property paid off all the debts against both estates, and after paying off the debts the executor had a surplus to make a distribution to the several children, and did make such distribution. S. B. Stewart also testified that he intended to pay the lien against the land in full, and did pay it, and secure the release and recorded it. The testimony of S. B. Stewart also shows that he filed on two sections of school land, and that his father filed on two sections and a three-quarter section; afterwards the three sections, 199, 179, and 177, were purchased, and his father executed the vendor’s lien notes heretofore set out in the release. The record shows, we think, that the deed to these sections was to C. W. 'Stewart. S. B. Stewart and U. W. Stewart were partners in the stock business until 1905, when they closed out the business by disposing of the stock and paying off the debts of the partnership. The evidence shows that Mrs. Sophia K. Stewart Taylor, the mother of the plaintiffs and the daughter of O. W. and Mary A. Stewart, mentioned in the will, died before O. W. Stewart.

It is urged by appellee that the delivery of the deed to the First National Bank was a present conveyance of the fee-simple title to section 177 to S. B. Stewart, with only the right to use the land during the lifetime of O. VV. and Mary A. Stewart. It is elementary that, in order for a deed to operate as a conveyance, there must have been delivery with the intent and purpose on the part of the grantor to relinquish control of the deed. Steffian v. Milmo Bank, 69 Tex. 513, 6 S. W. 823. We understand, where a grantor parts with all control over his deed when he delivers it to a third person for delivery to his grantee on the grantor’s death, the conveyance takes immediate effect, and vests in the grantee title to commence after the grantor’s death, but otherwise it does not. Griffis v. Payne, 92 Tex. 293, 47 S. W. 978; s. c., 22 Tex. Civ. App. 519, 55 S. W. 757.

The case of Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, as we understand that case, does not hold to the contrary. In that case the verdict of the jury established the fact that the grantor deeded to his two stepdaughters certain land, and he delivered it to the cashier of a bank for safe-keeping, saying it was a deed to some land to them, to be delivered to them after his death. It was simply held in that 'case that such a delivery passed the title, which operated as a present conveyance, passing the title, which could not be revoked by the grantor. The court said: “It had precisely the same effect as if he had made and delivered the deed to the grantees, conveying the fee, reserving to himself in the deed the -use and enjoyment of the land for and during his natural life.” When a deed is delivered unconditionally to a third party, to be delivered to the grantee after the death of the grantor, without any control of the same by the grantor, the deed takes effect by relation from the time of the first delivery. McKnight v. Reed, 30 Tex. Civ. App. 204, 71 S. W. 318, citing O’Kelly v. O’Kelly, 49 Mass. (8 Metc.) 436, and Parker v. Spencer, 61 Tex. 162.

The case of Taylor v. Sanford, 108 Tex. 340, 193 S. W. 661, is not in point on the question here involved. In that case the grantor executed the deed, filed it for record, and notified the grantee that as soon as it was recorded it would be sent to her, manifesting an unmistakable intention to give her the land and to send her the deed. There was no pretense on his part of a right to control the deed during his life, nor is there any question of revocation in that case. In that case it was an unconditional delivery and beyond the power of the grantor to recall. it may be under the case of Henry v. Phillips, supra, if C. W. and Mary A. Stewart made no other disposition of the property before their death, and if they had not demanded the deed, that at their death the property would have vested in S. B. Stewart. That ease would seem to authorize such a holding, but does not authorize the holding that, if the land had been disposed of to others before death by the grantors, nevertheless the title would vest in the grantee. We do not feel justified in holding that the above case, in its holding, is dicta that if the grantor retained control of the deed during his life, if the land was not disposed of by him, the deed would pass the title to the grantee, as insisted by appellant. It would seem that the facts established bjy the verdict of the jury in that case rendered it unnecessary to hold further that, if they had found the deed was under the control of the grantor, such finding would not have affected the issue, but we cannot say the question was not involved in considering the case; and in reviewing the opinion of the Court of Civil Appeals therein the court bases its holding upon the case of Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185, and quotes therefrom. We select this from the Belden Case:

“The grantor delivered the deed to Wright with the reservation of a power to countermand i.t; but this makes no- difference, for it was in the nature of a testamentary disposition of real estate, and was revocable by the grantor during his life, without an express reservation of that power.”

Our Supreme Court said, after quoting from the above case, that it was immaterial whether he released control of the deed after depositing it in the bank, in order to show the purpose and intent of the grantor in the deed and in delivering it, but the court further says:

“If the deed had been taken by Patillo (the grantor) during his lifetime from the bank, and found among his effects after his death, and tho land not otherwise disposed of by him, in' view of his declaration to Simpson, the grantees would unquestionably take the title to the land under the deed.”

The court again announces the right to assert title under deed after death of the grantor, but again qualifies that right by saying, “and the property not otherwise disposed of.” The opinion clearly recognizes the right in the grantor when he retains control of the deed to otherwise dispose of the property before his death. The case of Wren v. Coffey, 26 S. W. 142, construed a deed in the usual form, with this clause added, “All our right, title, and interest in and to our homestead in said Van Winkler survey, should we not sell or dispose of the same before death,” as testamentary, not a deed vesting a present estate. The grantee therein was held not to have title superior to a subsequent grantee-* of the grantors. That case cites and quotes from Carlton v. Cameron, 54 Tex. 77, 38 Am. Rep. 620.

While the cases in our courts are somewhat difficult to reconcile, we yet b’plieve it is recognized in all of them, when the grantor in a deed reserves control of the deed or right to dispose of the property during his life, or when a deed is deposited with á third party, but under the control of the grantor, and not to take effect until after his death, that such control renders the instrument testamentary in character, with the right of revocation in the grantor. De Bajligethy v. Johnson, 23 Tex. Civ. App. 272, 56 S. W. 95; Hanning v. Hanning, 24 S. W. 695.

The appellee cites cases such as McLain v. Garrison, 39 Tex. Civ. App. 431, 88 S. W. 484, 89 S. W. 284, 112 S. W. 773. This ease, and like cases, construe a deed with all formal requisites of a deed except the clause, “This deed is to take effect at my death and not before.” The case is largely based upon the construction of the statute, article 1111, R. O. S., which provides: “An estate or freehold or inheritance may be made to commence in futuro, by deed or conveyance, in like manner as by will.” In the case of Griffis v. Payne, supra, the Supreme Court held the above article did not apply in that case. The question there depended on whether there was a delivery with or without retaining control of the deed by the grantor, as in this case. On motion for rehearing, in the case of McLain et al. v. Garrison, reported in 39 Tex. Civ. App. 431, 89 S. W. 284, Judge Fisher set out in full the opinion in Abney v. Moore, 106 Ala. 131, 18 South. 61, and, as' pertinent to the inquiry here, we quote from the latter case:

“Wills are ambulatory during the life of the testator, and are necessarily revocable; but deeds take effect by delivery, and are operative and binding during the life of the grantor. As was said in Croker v. Smith, 94 Ala. 297, 10 South. 258 (16 L. R. A. 576): ‘The intention of the maker is the ultimate object of the inquiry, whether it was intended to be ambulatory and revocable, or to create rights and interest at the time of the execution which are irrevocable. If the instrument cannot be revoked, defeated, or impaired by the act of the grantor, it is a deed; but if the estate, title, or interest is dependent on the death of the testator — if in him resides the unqualified power of revocation — it is a will.’ ”

8 R. O. L. § 60, “Deeds,” p. 995, states as a generally accepted rule in part the following:

“If the deed is not delivered (during the lifetime of the grantor), and it is held by the custodian subject to the order of the grantor, who does not part with all control over it, retaining the right to reclaim or recall it, the transaction will usually be construed as an attempted testamentary disposition, which can be effected only by an instrument in writing executed in conformity with the statute of wills.” “There is no delivery when the deposit with the third person is not accompanied by an intention to part with all control over the deed. In doing-so the power to revoke or to claim the deed must be given up and all power over it surrendered.” Devlin on Real Estate, “Deeds,” c. 12, vol. 1, p. 384, § 261a and 260 (3d Ed.); Moore v. Trott, 156 Cal. 353, 104 Pac. 578, 134 Am. St. Rep. 131; notes to Jackson v. Jackson, Ann. Oas. 1915C, pp. 378, 380.

Belden v. Carter, 4 Day (Conn.) 66, 4 Am. Dec. 185, denies the necessity of the grantor parting with all control and dominion over the deed. The Connecticut Supreme Court in the case of Grilley v. Atkins, 78 Conn. 380, 62 Atl. 337, 4 L. R. A. (N. S.) 816, criticizes that case, and says: “The ruling upon this last point in the above case is opposed to the overwhelming weight of authority. * * * Ánd ⅛ would not probably be followed in this state to-day: Be that as it may, our Supreme Court has followed it, but in doing so it has not taken the power of the grantor from him during his lifetime to dispose of the property where he retains control of the deed.

Under the facts of this case we do not see how there could be any serious question that C. W. Stewart retained the deed under his control during his lifetime. The deed was to be delivered to him at any time he saw proper to demand it. Clearly, this was not an unconditional delivery to the bank to hold for S. B. Stewart. The notes mentioned in the deed which the grantee was to pay were paid before the grantor’s death, and the interest in the land by virtue of the notes was released and quitclaimed to C. W. Stewart. These notes were also a lien on section 179, bequeathed to S. B. Stewart in the will, as well as upon section 177. The wills bequeathed this section to S.- B. Stewart instead of section 177. In order to pass the present title to S. B. Stewart there must have been an unconditional delivery, and until there was such delivery no title vested by it. At any time before C. W. Stewart’s death he could recall the deed or he could otherwise dispose of the land. By instructions to James it is manifest the deed was not to be delivered until after the grantor’s death. The bank was to hold the deed subject to the control of C. W. Stewart. This clearly was not a present delivery, and evidences clearly it was not the intention of the grantors that it should be such a delivery. If at his death he had not otherwise disposed of the property with the deed still left in the bank, it may be conceded, under the holdings of our Supreme Court, that title would have vested by it. We think the wills of C. W. and Mary A. Stewart disposed of this property before their death'. That right they had reserved when they deposited the deed in the bank subject to their control. The wills manifest a desire to dispose of all the property of which the testators died possessed. They desired their debts paid out of the personal property, but, if not sufficient, then they were to be paid out of the proceeds of section 177; and the concluding sentence of paragraph 6 gives and bequeaths to the children and the grandchildren “all my personal estate, and all my real estate,” “share and share alike,” subject to the debts, “and subject to the property heretofore bequeathed to S. B. Stewart and Charles Stewart in paragraphs 3 and 4 hereof.” The lands mentioned in paragraphs 3 and 4 were excepted from the devise to all the children of all their property. Argument would not make more clear the fact that in their lifetime C. W. and Mary A. Stewart disposed of the land of which they retained the deed theretofore made under their control. They gave their son section 179 in their wills instead of section 177. The evidence in this case is that section 179 was improved, while section 177 appears to have been only a grazing section. After probating the will appellee Stewart lived on section 179. That section was also liable for the vendor’s lien notes which Stewart says he paid.

In addition to that fact, the record warrants the conclusion that there was a section of land, No. 102, which his father had filed on as school land, and which Stewart owned at the time of this trial. It is evident from this record that by the will the parents gave to S. B. Stewart more than they did to the others, unless it was Charles. C. W. Stewart evidently took the advice of his banker, and disposed of his property by will. It is manifest that he acted at once on the advice, as the lawyer in the bank was at once called and drew up the will. There is nothing to show that S. B. Stewart had any right to section 179, except- by the payment of the notes against that section and others. It is not at all probable from this record that it was the purpose or intent of either O. W. Stewart or his wife to give by deed after their death section 177, and als.o to give section 179 by will to S. B. Stewart. On the face of the facts as shown by this record, this would have been grossly in excess of what the other children received. The others would have had but little from the personal property, as it took nearly all that to pay the debts; only a very small sum from the proceeds was left after paying the debts.

The statute of three years’ limitation set up by the appellee S. B. Stewart is not applicable. His claim is not through a regular chain of transfers from and under the sovereignty of the soil. The chain from and under the sovereignty of the soil under which he claims was broken by the wills of his grantors before any title could have vested in him. Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S. W. 1139; St. Louis Union Trust Co. v. Harbaugh, 205 S. W. 496 (11).

The appellants instituted their suit against S. B. Stewart for the land less than • five years after he obtained and filed the deed to himself from O. W. and Mary A. Stewart. Hence as to appellants the five-years statute will not apply. It would not run against the minors, in whom the will vested an interest; as to the adults who did not answer the judgment by default will preclude their interest, and limitation as to them becomes immaterial.

To S. B. Stewart’s plea of subrogation, the appellants interposed the defense of two, four, and ten • years’ statutes of limitation. If S. B. Stewart paid the vendor’s lien notes on the land owing by his father, he did so in October or November, 1906. This suit was not instituted until 1915. He did not claim the land adverse to the appellants until April, 1911. If he made this payment to protect any interest he had in the land, it was upon an implied contract arising between him and his father, and subject to be barred by the two-years statute of limitation. Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Darrow v. Summerhill, 93 Tex. 92, 53 S. W. 680, 77 Am. St. Rep. 833; Summerhill v. Darrow, 94 Tex. 71, 57 S. W. 942; Darrow v. Summerhill, 24 Tex. Civ. App. 208, 58 S. W. 158.

There was no obligation upon him to pay the lien, and if he did so it was voluntary on his part. It was not at that time an obligation of his, and was not a lien on land owned or claimed by him. There was no agreement that he should pay it and be subrogated to the rights of the lienholder. He took a release to his father, reciting payment, and recorded it, and such payment gave him no right of sub-rogation, in equity or in law. The assumption of the debt was never accepted by him; in fact, he knew nothing of this deed until long after he paid the notes, and after the wills had been probated, and he qualified as executor. But if he knew and accepted under this deed, this would not give him a right of subrogation. McDowell v. Jones, 42 Tex. Civ. App. 260, 93 S. W. 476. He sets up the right of subrogation as vesting him with the title. The right of subrogation did not give him title to the land. In order to stand in the shoes of the original vendors of C. W. Stewart, he must have obtained a conveyance from them of the legal title held to secure the payment of the notes. This he did not do. The mere showing that he paid the notes gave him neither a lien by subrogation nor title. We believe the interest sued for by appellants passed to them by the will, and the court erred in not so charging the jury, as requested. The case will be reversed, with direction that the trial court enter up a judgment, decreeing to the appellants herein and plaintiffs below the interests to which they are entitled under the wills of their grandparents, and a judgment for such interest as the minors, represented by the guardian ad litem, are entitled to under the wills, and the court will decree a partition of the land to be made in accordance with law. The minors are not appealing, and have not cross-assigned on this appeal; but they are by law wards of the court, and it is the duty of the court, as we conceive it, to see that their interests are protected. Their interests, under the pleadings and evidence in the case, are in common with the plaintiffs and under the same right. As to the adults who permitted judgment by default, the judgment will be affirmed.

Reversed in part and affirmed in part.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J.

license: Public Domain

text:
    SOUTHERN PAC. CO. v. BERKSHIRE.
    (No. 891.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 5, 1918.
    Rehearing Denied Jan. 2, 1919.)
    1. Negligence @=m9 — Unintentional Injury.
    Negligence is essential to liability for unintentional injury.
    2. Master and Servant <®=»286(15) — Injuries to Servant — Federal Employers’ Liability Act — Negligence — Question for Jury.
    Whether railroad was negligent in maintaining a mail crane near its track, according to postal regulations, against which the engineer struck his head while looking out of his cab, held for the jury.

      3. Master and Servant <⅜=>204(1) — Federal Employers’ Liability Act — Assumption op Risk.
    The federal Employers’ Liability Act (U. 5. Comp. 'St. 1916, §§ 8657-8665) leaves the application of assumed risk as it was at common law, as recognized and construed by the federal courts.
    4. Master and Servant <S=>288(2) — Federal Employers’ Liability Act — Assumption oe Risk — Question eor Jury — Mail Crane.
    In an action by a railroad engineer engaged in interstate commerce for injuries occasioned by being struck by a mail crane while leaning out of his cab, whether plaintiff assumed the risk held for the jury.
    Appeal from District Court, El Paso County, P. R. Price, Judge.
    Action by W. S. Berkshire, temporary administrator and personal representative of the estate of William A. Linder, deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall, Kemp & Nagle, of El Paso, for appellant.
    Geo. E. Wallace and W. S. Berkshire, both of El Paso, for appellee.
   WALTHALL, J.

W. S. Berkshire, appellee, plaintiff in the court below, brought this suit as temporary administrator and personal representative of the estate of William A. Under, deceased, against appellant, for the use and benefit of the surviving wife and children of the said William A. Linder, deceased. William A. Linder was employed by, appellant as locomotive engineer, running between El Paso, Tex., and Lordsburg, N. M., and while running and operating an engine attached to one of appellant’s trains, between said points, at Carney, N. M., deceased was struck by a mail crane and was thereby injured so as to cause his death shortly thereafter.

Appellee alleged negligence on the part of appellant in placing .and maintaining the mail crane or such portion of same in such close proximity to the railroad track and engine as not to be reasonably safe for the engineer in his position on the engine, in the ordinary performance of his duties, and in such close proximity to the railroad track and engine as to strike deceased while occupying'his usual and customary position on the engine, and thereby causing injuries from which he died.

Appellant answered by general demurrer, general denial, by plea that deceased, Linder, met his death while in the employment of appellant and while engaged in interstate commerce, and that Linder’s death was due to risks and dangers assumed by him, for which appellant was not liable.

A trial before a jury resulted in a verdict in favor of appellee in the sum of $15,000, apportioned to the surviving wife and children.

Appellant presents six assignments of error as grounds for reversal. The first three assignments are based on the refusal of the court to give appellant’s special charge to return a verdict in favor of appellant.

The record shows that, at the time of the accident resulting in the death of Linder, he was engaged in operating an engine and train then engaged in interstate commerce. Such being the fact, the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) applies; the doctrine of assumed risk as construed and applied under that act controls, and it is the contention of appellant under its several propositions, both of fact and of law, that Linder, while operating his engine at the time he was injured, assumed all the risks and dangers incident to his employment as engineer on said train, and the injury which he received resulting in ’ his death was the result of such risks, and the court should have given the peremptory charge requested. It is appellant’s contention under its fourth assignment that the court was in error in submitting to the jury any issue of negligence because, as claimed, there was no evidence of negligence on the part of appellant proximately causing the injury to Linder. The fifth and sixth assignments claim error in submitting any issue of assumed risk, because, as claimed, Linder assumed all the risks ordinarily incident to operating the engine under the facts and circumstances shown to exist at that time; that, there being no negligence on the part of appellant shown, the risks assumed did not grow out of negligence on the part of appellant.

It is appellee’s contention that the court was not in error in refusing to give the requested peremptory charge in favor of appellant, for the reason that the evidence called for the submission of the issues, and that it was the province of the jury to determine them. There is but little, if any, controversy in the evidence. The facts pleaded and the uncontradicted evidence show the following:

At the time William A. Linder, was injured, appellant was engaged in the business of interstate carrier by railroad for hire over its line of railroad extending from El Baso, Tex., westward through the states of New Mexico, Arizona, and into the state of California. Over its lines of railroad it operated both passenger and freight trains. The place or station Carney, at which the injury to Linder occurred, is a station (called in the evidence a blind siding) in New Mexico, between El Paso, Tex., and Deming, N. M. At the time Linder received his injuries, he was an employe of appellant as locomotive engineer and was operating an engine pulling a passenger train carrying soldiers on appellant’s road and was going west from El Paso, Tex., to Deming, N. M. The appellant did not maintain an office or agent at Carney. At Carney the United States mail was taken by appellant’s mail trains from mail cranes placed near the side of the railroad track. At a point before reaching Carney, it was noticed that “the main driving pin on the engine was running hot.” There was light, dim smoke on ,the engineer’s side' from the driving pin. It run hotter and hotter to about a mile from Carney, when Linder stepped out of the cab through the front window on the running board, got on his hands and knees to see whether the pin was getting holler. Afterwards Linder returned to his seat in the engine cab. Just then the mail sack from the mail crane at Carney fell, and it was immediately discovered that Lind-der was sitting on the engineer’s seat in the engine cab in an unconscious condition, his right arm, head, and part of his body outsidg of the cab; leaning with the right side and arm over the arm rest of the storm or side window of the engine. The head train brakeman was at the rear end of the engine cab looking back and down the train with his left side from 10 to 18 inches out beyond the side of the engine tank and cab, and, while in that position, either the mail crane or the mail sack (witness did not know which) knocked his hat from the left to the right side, and he was hit on the side of the face with blood from Linder. Linder had a cut on the right side above and about one inch over the right ear. While no one saw the mail crane strike Linder, the evidence justifies the finding that Linder received the injury causing his death by being struck on the head by the arm of the mail crane. Linder was injured at 9:15 o’clock on the morning of the 3d day of July, 1916. The day was clear, and on a clear day a man could sit on the engineer’s cab seat and look through the front window of the cab or could lean out of the storm or side window of the cab and see the mail crane a half mile away, and could see the crane and mail pouch 500 yards away. At the time Linder was injured, the train was going on an average of 35 miles an hour. If Linder wanted to look at the driving pin through the side window, he would have to lean out fully 14 and possibly as much as 19 inches beyond the side of the cab, to see it. At the time Linder was injured, he had been running on both passenger and freight trains between El Paso and Deming over a period of several years, had made many trips over that portion of appellant’s road and by the station Carney, making 156 trips past Carney during the six months next preceding the time of the accident, during all of which time said mail crane was there, and was similarly located as on the day of the accident, and some of the passenger trains on which Linder was engineer took up the mail in passing from the mail crane at Carney. There were several other mail cranes at other stations on appellant’s line between El Paso and Deming and having approximately the same relative position with reference to the cab and the track as the one at Carney. There is a standard distance all of the cranes are placed from the side of the car and are made so by post office regulations. The post office department does not require the railroad companies carrying the mail to put up the cranes. They can either stop the train and pick up the mail, or put up the crane and take the mail therefrom. Where the cranes are used, th« company is required to erect them and according to post office department regulations. While there was no direct evidence to the effect that Linder knew of the mail crane at Carney, without stating the evidence, it'justifies the finding that Linder knew that a mail crane was maintained and used at Carney and knew its general location with reference to the side of the engine cab, but had nothing to do with its maintenance, location, or use. The train'on which Linder was riding at the time of his injury was not the mail train. The mail train was to follow shortly thereafter, and the mail pouch was hung on the arm of the mail crane by the postmaster at Carney for the mail train following and from 15 to 20 minutes before the mail train’s time at Carney. In placing the mail pouch on the crane, the postmaster acts under the orders of the post office department.

There is no complaint as to the verbiage of the court’s charge in submitting the issues of negligence and assumed risk. The contention is that there is no evidence of any negligence on the part of appellant in placing or maintaining the mail crane in its position at Carney, and that, if there was negligence in placing and maintaining the crane in its position, the undisputed evidence shows that the position of the crane with reference to the engine was obvious and known to Lin-der, or which he must necessarily have known in the discharge of his duties as engineer; that the injury to Linder grew out of and was the result of risk ordinarily incident to his employment; that, under the undisputed evidence of his knowledge of the presence and position of the crafie, Linder, while operating the engine in interstate commerce, assumed all risks and dangers incident to the negligence of appellant; that where the proof was vague, indefinite, and uncertain as to the distance between the mail crane and the side of the engine, the evidence was insufficient to submit to the jury any issue of negligence or assumed risk, and the court should have instructed the verdict for appellant.

The court instructed the jury on the issue of negligence that, if they found “the position of the mail crane was so near to the track as not to be reasonably safe for an engineer in his cab in the ordinary performance of his duty, and the defendant was guilty of negligence in so constructing and maintaining said crane in such close proximity to the track, if said crane was in such proximity to the track as not to be reasonably safe, and that such negligence, if any, was the proximate cause of the death of William A. Linder, then your verdict will be for the plaintiff,” unless they should find for defendant on other issues.

On the issue of assumed risk, the court charged that, if the jury found “the proximate cause of the death of the said William' A. Hinder was from the ordinary risks and dangers incident to his employment, or that, prior to the happening of the accident, deceased, William A. Linder, knew of the position of the crane which is alleged was so constructed and the location thereof, or that in the ordinary discharge of his duties must necessarily have known of same, and that he appreciated the danger thereof, then, and in such event you so find, you are instructed that he assumed the risks, and your verdict will be for the defendant.”

Appellant refers us to many cases, both state and federal, in support of its propositions. ,

Negligence is essential to liability for unintentional injury. While the issue of negligence is a fact to be determined by the jury, to justify its submission, the evidence must show, under the charge given, that the position of the mail crane was placed so near the railroad track as not to be reasonably safe for Linder in his cab while in the ordinary performance of his duties as engineer. The evidence does not give us a standard of distance from the side of the cab at which the crane could be placed, and be reasonably safe for the engineer. It does not give us a proximate standard of distance from the side of the engine within which an engineer would ordinarily perform his duties in operating his engine, and otherwise keep a lookout for a proper handling and movement of the engine. While, no doubt, the only available evidence as to what Linder was doing, and just how far he was reaching out from the side of the cab at the time he was struck by the crane, was offered on the trial, to establish the fact that at the time Linder came in contact with the crane he was then in the ordinary performance of some one of his duties and that in its performance he did not reach out Beyond what would ordinarily be considered a reasonably safe distance, at which the mail crane could be put, is more or less a matter of surmise. The question presented is: Was the evidence offered and the attendant facts and circumstances shown, and to which we may look, sufficient to take the case to the jury? The evidence shows beyond question, we think, that at the time Linder was injured he had just re-entered his cab from a trip of inspection of his engine and had discovered that the main driving pin on the engine was running hot and was getting hotter and hotter. The condition of the driving pin was noticeable. It began about a mile out from Carney, but it was not then known whether it was on the engineer’s side of the engine, or on the fireman’s side. A light dim smoke from the hot driving pin was discovered on the engineer’s side. At the moment Linder returned to his seat on the cab, the front brakeman was standing in the gangway between the engine and the tank, with his hands on both grab-irons looking out down the side of the train, trying to'discover a “hot box.” He testified:

“Just then this mail sack fell. At the time it fell, either the crane or the sack knocked my hat from the left to the right side, and I got this drop of blood on my face. * * ⅜ I should judge that at that time my head was out about 14 inches from the side of the engine tank and cab. * * * My head was out from 10 to 14 inches. I can’t judge exactly myself. It would have to extend that far in order to see down the side of the train. My whole body was in the cab. At the time my hat was struck, I felt the blood and noticed the sack going down at the same time, and the blood hit me on the side of my face. When I turned around to Mr. Linder, he had a cut on the right side, above the ear, about an inch over the right ear, to my knowledge. I shut the throttle off and started applying the brakes. The fireman was on the side where he belonged, setting the injector. The first thing that attracted my attention to the accident was noticing the sack, after it struck my hat. After the sack fell, I reached up and felt the blood. There was some on my glove, also. That wasn’t blood I lost. It didn’t scratch me, just struck my hat. I don’t see how I could have extended out over 14 inches. * s ,* j suppose I could have swung out a foot and a half. I was looking back. I know it struck hiin. No, I didn’t see it strike him, amd I wasn’t looking in that direction at the time. * * * I hadn’t been looking in Mr. Linder’s direction for two minutes, or about that length of time. * * * This crane stands on the same basis as any other; it is like all the balance of them. I never measured the distance it was from the track, but I should judge 14 inches from the parallel part of the cab — 4 inches from the arm rest and 9 or 10 inches to the point of the crane — may be more or less, but, 14 inches from the parallel part of the cab to the crane. The cab window and the coach line behind are supposed to be parallel. Linder had to have his head partly out of the cab window to be struck. In order to get in position, to get in his seat, I would judge he would have to be in that position. It don’t take much to get 14 inches out, but certainly, for anything to hit it, it would have to be out 14 inches. ⅞ ⅜ * That is just an estimate. It may be 15, 18, or 19; I don’t know. ⅜ ⅜ * At the time of the accident, the train was going on an average of 35 miles an hour. If the engineer wanted to look at the driving pin through this window, he would have to lean out 14 inches, anyway, to see it.”

Section 1355 of the Postal Regulations, introduced in evidence, provides:

“At all points at which trains do not stop where the postoffice department deems the exchange of mails necessary, a device for the receipt and delivery of mails satisfactory to the department must be created and maintained.”

Witness Matthews testified, in part:

“There was a crane erected and maintained at Carney in conformity with this section of the postal regulations. As to the distance of the cranes from the track, I have reasons for knowing that this particular one, and the general line of them, are within the requirements of the government, because the government has made objections to the setting of cranes on this division, and we have had to reset them to meet the requirements. The railroad furnishes the equipment for the mail cars, subject to the specifications of' the poátal .department. The cranes and the entire equipment ■ are subject to meeting the specifications of the postal department, and the entire equipment is made in conformity therewith.”

Witness Neeley testified, in part:

“I am in the railway mail service. My run is from here to Tucson. There are a great many stations known as ‘catch stations’ where we catch pouches hung for us. The crane, I believe, is the stand where they hang the pouches, and we have a hook in the car door to catch them with. The crane is a post, or upright, by the side of the track, built and put there for that purpose.”

After describing the way the device works, in taking the mail pouch from the crane, the witness said:

“I haven’t seen any cars but what the hook extended out about 29 inches from the side of the car. * * * You couldn’t catch a mail pouch with th;s hook over 29 inches. Anything within 29 you could. * ⅜ * Outside of the rocking of the train you could catch it at 29 inches. As to whether you could catch it with absolute safety at 25 inches would depend on the rocking of the train. If it rocked more than four inches, you couldn’t. * * * Naturally there is a standard distance all the cranes are from the side of the ear. They are all the same distance exactly and are made so by post office regulations. The same hook which will take a sack off a crane in Arizona and New Mexieo will take it as it goes through Western Kansas. The post office doesn’t require the railroad to put up the cranes. They can either stop the train and pick up the mail, or put up the crane. It is optional with the railroad which they do. But I understand that, if they do erect them and use the hook, they do it according to government regulations.”

We think it sufficiently appears from the facts shown that Linder’s injury was caused by his coming in contact with the arm of the mail crane, and that at the time of his injury he was then at his place on the cab of his engine, looking out of the side or storm window and in the direction of the driving pin on the engine; his head extending at least 14 inches beyond the side of the cab. The jury could well conclude from the evidence that the arm of the mail crane or the mail pouch that struck the brakeman’s hat struck Linder. The jury could also conclude from the evidence that the point of the arm of the mail crane extended to within 14 inches of the side of the cab. The 'mail pouch could be reached and taken by the hook, the other portion of the device, at any distance between 25 and 29 inches. The erection of the crane was shown to be for the convenience of the appellant. While the evidence is meager, we think the jury could well conclude from it that all that was essential to a proper use of the mail device was that the mail pouch, when placed on the arm of the crane, should be at such distance from the passing train that the end of the hook or catcher bar would extend beyond it, and, from the evidence of the witness Neeley, the railway mail agent on that division of the road, it is established that the device could be so placed and used and the mail pouch taken at a distance of 29 inches from the side of the train. The evidence shows that the side of the engine is flush with the side of the coaches. True, the witness Matthews testified that the crane at Carney was erected and maintained in conformity with the postal regulations. But his statement is more a conclusion than the statement of a fact. The postal regulation introduced does not state the distance the crane must be from the track or coaches, nor does the evidence of any of the witnesses show the distance the postal regulations require the arm of the crane to be from the track or coaches, nor is there any evidence in the record, other than that of the brakeman, Anderson, as to the distance of the arm of the crane from the side of the cab. But if it should be held that the evidence was sufficient to show that the crane was placed at whatever distance the postal regulations require, still that fact alone would not have the effect to exclude other evidence on the issue of negligence and establish the fact that the crane was placed at a reasonably safe distance from the engine; but the question of negligence, it being a question of negligence vel non, would still be open for the jury to determine from all of the evidence. We have reached the conclusion that the evidence was sumeient on the issue of negligence to take the case to the jury. Judge Williams, in speaking for the Supreme Cotart in M., K. & T. Ry. Co. v. Williams, 103 Tex. 228, 125 S. W. 881, in a somewhat similar case, on one of the issues of negligence in that case, said:

“The occurrence itself is sufficiently indicative of negligence on defendant’s part to call for an explanation from it, freeing it from such an imputation. The killing of one of its employés, while in the proper performance of his duty, by contact with a structure of its own contrivance near the track, strongly indicates a lack of. proper care and foresight in the location of the structure, in view of the reasonable presumption that it could have be.en made consistent with the safety of employes while rendering the ordinary service.”

The evidence does not show the actual distance the point of the arm of the crane was from the side of the cab, nor does it show approximately the distance an engineer would ordinarily reach out from the side of the cab in the ordinary performance of his duties. The jury could well have concluded from the evidence that Linder was out from the cab not exceeding about 14 inches, when the hook or other part of the device could have taken the mail from the crane at as much as 29 inches.

The other question presented is: Lid Linder assume the risk? At the time of the accident, Linder and the engine and train he was operating were engaged in interstate commerce. This being true, the federal Employers’ Liability Act applies, and that act leaves the application of assumed risk as it was at common law, as recognized and construed by the federal courts. What seems to us to be a clear statement of the doctrine of assumed risk is made by the Supreme Court of the United States in the case of Gila Valley, G. & N. Ry. Co. v. Hall, 232 U. S. 101, 34 Sup. Ct. 229, 58 L. Ed. 524. In that case, the court said:

, “An employé assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s, negligence. But the employé has a right to assume that his employer has exercised proper care with respect to providing a safe place of work * * * and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employé becomes aware of such defect, or unless it is so plainly observable that he may be .presumed to have known of it. Moreover, in order to charge an employé with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear, not only that he knew (or is presumed to have known) of the. defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.”

To the same effect is Seaboard Air Line Railway Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1068, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

■ It has often been stated, both by federal and state courts, that, in order to charge an employé with assumption of risk attributable to the employer’s negligence, it must appear that the employé not only knew of the defect or unsafe condition of the place where he was to perform his service, but that he knew it endangered his safety. In T. & P Ry. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382, Swearingen said he knew that he had to pass the scale box at the time he was hurt, but that he was not then thinking) about it and did not see it when he passed it going after the cars; that there was nothing to hide the scale box from his view; it was open and apparent. He said he knew the location of the scale box before he was hurt. Judge Maxey in that case instructed the jury that the mere fact that Swearingen knew of the existence and location of the scale box would not, as a matter of law, charge him with the knowledge of the danger, if such d’anger was there, due to the proximity of the north, rail to track 2, and whether he knew of the danger was a question of fact for the jury to determine in connection with all the facts and circumstances in evidence. The proof was that the distance at which the scale box was put from track 2 was standard and considered a safe and proper distance in putting in scales where the tracks are standard gauge apart; that the tracks in the yards were standard gauge apart; and that the scales had been erected a number of years prior to the happening of the accident, and after tracks 1 and 2 were built. We refer to the case for further statement of the facts. In passing upon the case, Mr. Justice White, for the Supreme Court, said:

“The record shows that there was evidence tending to establish that the track scale box was not erected in a reasonably safe place, and that, although the plaintiffi knew that the scale box was situated adjacent to track No. 2, he did not know that it was so near that it could not be passed, in the performance of his duties as a switchman, without danger.”

The court held in that case that, prima facie, the. location of the scales where the tracks were only the standard distance apart, and, under the facts stated, did not incontestably establish the performance by the company of the duty imposed upon it to use due care to provide a reasonably safe place for the use of the switchmen in its employ, and that it was therefore properly a question for the jury to determine whether or not the scales were maintained in a reasonably safe place, and, if not, whether Swearingen had notice thereof. It seems to us in this case, as held by both the Court of Appeals and the Supreme Court in the Swearingen Case, that the dangerous contiguity of the arm of the mail crane and the extra hazard to Linder resulting therefrom was not so open and obvious on other than a close inspection, as to justify taking from the jury the determination of the question whether there had been an assumption of the risk. Linder was entitled to assume that the company had used due care to place the mail crane at a reasonably safe distance from the side of the engine for the performance by him of his duty in looking after the proper running of his engine. The fact that the company might not have performed sucli duty in respect to the erection and maintenance of the mail crane at Camey was not so patent as not to be readily observable. The trial court or this court cannot declare as a matter of law, arising from the evidence, that Linder had assumed the hazard incident to the actual situation. The fact that Linder had often passed the mail crane in operating his engine over that part of the road, and that was the extent to which the evidence goes, might clearly establish the fact that he knew of the use of the crane in the train mail service and of its position with reference to side of the engine; but it being a device separate and apart from his engine and something with which he had nothing to do in the operation of his engine, except on a few occasions to slow up the train at that point to enable the mail clerk on the train, by use of the device, to take the pouch from the arm of the crane, there is nothing in the evidence to show that his attention was ever called to the distance the arm of the crane, when elevated, would be from the engine, or that, when elevated, the crane could not be passed without danger to him, when in the discharge of any duty necessary to be performed in the proper care and handling of his engine. It might be remarked, in this connection, as said by the court in Railway v. Williams, supra, that the mere adoption of such a device for handling the mails would imply that its proper use would not endanger employSs so engaged on passing trains, and that a collision would not likely happen when proper care is used to make it safe. We are of the opinion that the court was not in error in any of the inatters pointed out in the assignments.

The case is affirmed.
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author: BOYCE, J.

text:
    PANHANDLE & S. F. RY. CO. v. HUCKABEE et ux.
    (No. 1436.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1918.)
    1. Evidence <©=>126(1) — Res Gestze — Cause or Injury.
    Declarations made by one who has suffered injuries, as to how the accident happened, are admissible as res geste when made under stress of nervous excitement which stills the reflective faculties, and the time between the accident and declaration is so brief that it must be assumed a consideration of self-interest could not have been brought fully to bear by seasoned reflection (citing Words and Phrases, First and Second Series, Res Gestae).
    2. Evidence <©=>126(1) — Res Gestze — Spontaneity.
    The question, whether the circumstances show such spontaneity as to render a declaration of an injured person as to how the accident happened admissible as part of the res gestae, rests largely in the discretion of the trial court; but the facts and evidence should be sufficient to justify the reasonable conclusion that the declaration was made under such conditions as that it might be said the reflee-tice faculties were not dominant.
    3. Evidence <3=>126(2)— Admissibility — Res Gestee.
    A declaration made by deceased to his father about 1½ hours after the occurrence of the fatal accident, as to how it occurred, in which decedent explained that one of the standards holding his load of lumber broke in crossing railroad tracks and caused his team to run away, held not admissible as part of the res gestee.
    4. Juey <©=>28(6) — Jury Triad — Waiver.
    Notwithstanding Rev. St. 1911, art. 4704, relating to the assessment of damages in death actions, the court, under article 1985, may, in a death action submitted on special issues, determine the question of the amount of damages, on the ground that jury trial was waived, where the only special issue submitted or requested on the question of damages, was to the yearly earnings of deceased.
    5. Death <®=>99(5) — Action—Damages.
    Parents are entitled to recover only compensation for the services and contribution which they might reasonably have expected from a son of 23, and, where they were not in need of the financial aid of the son, though he was at home and devote.d all his time to their service, an award of $3,500 was excessive.
    Appeal from District Court, Floyd County; R. C. Joiner, Judge.
    Action by W. A. Huckabee and wife against the Panhandle & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellant.
    T. F. Houghton, of Floydada, for appellees.
   BOYCE, J.

This suit was brought by appellants, W. A. Huckabee and wife, against appellant railway company, for damages on account of the death of their son, Wesley Huckabee, a young man 23 years old, and living with his parents at the time of his death. The petition alleged that the appellant company negligently constructed and maintained a certain crossing of a public road over its tracks, in the town of Floydada; that the said Wesley Huckabee drove a wagon loaded with lumber onto said crossing, and on account of the swaying and jolting of the wagon, caused by the rough condition of said crossing, one of the standards which retained the lumber on the wagon broke só that part of the lumber fell off, which fright: ened the team and caused them to run away ‘ that the said Wfesley Huckabee fell under the wagon, was run over, and sustained the injuries' from which he died. We will make such statement of facts as are necessary in the discussion of the assignments.

It is undisputed that such an accident did occur at or near the crossing, as stated, though it was in issue as to whether this was the result of the condition of the crossing. As a material part of the evidence tending to establish the fact 'that the accident was caused by the condition of the crossing, the father, W. A. Huckabee, was permitted to testify that when he reached the bedside of his son, about 1 ⅛ hours after the accident, he asked his son how the accident happened, and that— ■

“He told me in crossing the first track on the railroad here, he said when the left hind wheel dropped off the second rail, the front standard broke, and the lumber slid off, and that scared the mules, and he tried and he couldn’t hold them, and he said, either that the mules knocked him .under it or the lumber knocked him under the wagon, and he didn’t know which, and then the wagon ran over him, and, of course, the mules went on.”

It' is urged that this testimony was inadmissible as being hearsay and not part of the res gestae. In order to determine whether this objection is well taken, it is necessary to set out the facts surrounding the accident and transpiring in the interim intervening up to the time When the statement was made. Several persons arrived at the scene of the accident within a very short space of time thereafter. Wesley Huckabee was then conscious, stated that he was “broke all to pieces,” and asked some of those present to notify his parents. At this time he stated that “the standard broke, and' I thought I could hold them, but stumbled over a hunch of shingles and fell,” no statement being made as to the cause of the standard breaking. A physician soon arrived, and he was taken to a sanitarium in the town, and said physician testified that—

He “found a simple fracture of the thigh. We straightened them out and put on a modified Buck’s extension, and put him to bed. He was not complaining of any other injuries then.”

The family lived about 8½ miles in the country, and the father reached the sanitarium in about 1½ hours, whereupon the statement above referred to was made. No other evidence was offered as to the mental or physical condition of the said Wesley Huck-abee between the time of the accident and up to the time the statement was made, nor is it shown whether he was suffering much pain, and what, if anything, had been done to alleviate it. Neither does it appear whether this conversation with the father occurred before or after the physician had completed his operations in caring for the fractured thigh. Some time after, just when does not appear clearly from the evidence, it was discovered that the said Wesley Huckabee was in a stupor, in which condition he remained for 86 hours, when he died. The physician stated that the stupor and death were the result of concussion of the brain, but that he “did not make any examination of the head of the deceased; he was not complaining of anything'at all wrong with his head, and I just did not think of it.”

The testimony referred to would, of course, ordinarily be considered as hearsay, and the party offering it ought to make it reasonably appear that it came within some of the exceptions to the general rule against hearsay testimony before it would be admissible. It is claimed in behalf of its admission here that it is a part of the res gestee, and for this reason admissible. Much has been written on this subject. Bouvier’s Law Dictionary, “Res Gestee”; Words and Phrases, Original and Supplemental Editions, “Res Gestee”; Greenleaf on Evidence, §§ 108 to 114; Wigmore on Evidence, 1745 to 1757; R. O. L. vol. 10, pp. 987-989. We had occasion recently, in the case of Dallas Hotel Co. v. Fox, 196 S. W. 652, to consider a question very similar to the one now before us, and full citation of the Texas authorities will be found in the opinion in that case. One of the most satisfactory statements of the rule, the reasons therefor, and the test to be applied to determine whether a particular case comes within it, as applicable to the present case, is to be found in Wigmore on Evidence. Declarations of the kind we are considering are treated by this author as genuine exceptions to the hearsay rule (section 1746), and, as the writer does not feel that he can improve the statement made by Prof. Wigmore, we here quote it as being a fair statement of this phase of the law:

“This general principle (of the exception) is based on the experience that under certain external circumstances of physical shock a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses and during the brief period when consideration of self-interest could not be brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him, and may therefore be received as testimony to those facts.” ,
Section 1747: “⅜ * ⅜ This principle is represented in the present exception by the phrase oft repeated that the statement must, from the circumstances, ‘derive a degree of credit independently of the declaration’; that is, other than the faith to be given to an ordinary extrajudicial assertion. This circumstantial guaranty here consists in the consideration already noted that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief. The utterance, it is commonly said, must be ‘spontaneous,’ ‘natural,’ ‘impulsive,’ ‘instinctive,’ ‘generated by an. excited feeling which extends without let or breakdown, from the moment of the event they illustrate.’ ”
Section 1749: “ * * * There must be some shock, startling enough to produce this nervous excitement, and render the utterance spontaneous and unreflecting. * * * ' The utterance must have been before there has been time to contrive and misrepresent; that is, while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. ⅜ * * It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. Furthermore, there can be no definite and fixed limit of time; each case must depend upon its own circumstances.”

In section 1750 the author quotes from numerous authorities in support of his statement of the rule. One of the quotations, which he states as the “most satisfactory exposition” of this rule, is taken from the case of Travelers’ Insurance Company v. Sheppard, 85 Ga. 776, 12 S. E. 27, and is as follows:

“There must be no fair opportunity for the will of the speaker to mold or modify them. His will must have become and remained dormant, so.far as any deliberation in concocting matter for speech or selecting words is concerned. Moreover, his speech, besides being in the present time of the transaction, must bo in the presence of it in respect to space. He must be on or near the scene of action or of some material part of the action. His declarations must be the utterances of human nature, of the genus homo, rather than of the individual. Only an oath can guarantee individual veracity. But spontaneous impulse may be a sufficient sanction for the speech of man as such-man distinguished from this or that particular man. True, the verbal deliverance in each instance is that of an individual person. But if the state of his mind be such that his individuality is for the time being suppressed and silenced, so that he utters the voice of humanity rather than of himself, what he says is regarded by the law as in some degree trustworthy. * * * What the law altogether distrusts is not after-speech but after-thought. That the declarations shall be or appear to be spontaneous is indispensable, and it is for this reason alone that they are required to be speedy.”

Practically all of the authorities agree that the decision of the question as to whether the circumstances show that that spontaneity required by the rule exists rests very largely in the discretion of the trial court. However, the facts and evidence ought to be sufficient to justify the reasonable conclusion that the declarations were made under such circumstances and conditions as that it might be said that reflection and reason were not dominant, rather than the unrear soning impulse necessary to guarantee them. The evidence here does not seem to us to be sufficient in this respect. The young man was conscious immediately after the injury and did not appear to be laboring under an extraordinary degree of excitement or nervousness. As we have already stated, the record is silent as to his condition from this time until the time when the declarations were made, about 1 ½ hours later. He was only complaining- of his thigh. He may or may not have been given something to alleviate his pain. Evidently, there was nothing unusual in his condition, as the physician did not suspect that he had sustained any other injury. We suppose, also, that he was conscious during all of this time. Under these circumstances, we do not think the courts have the right to presume that the mental condition of the young man was such 1 ½ or 2 hours after the accident as to bring his declaration within the rule announced by the authorities. We therefore sustain the seventh assignment of error.

The case was submitted to the jury on special issues. The only special issue submitted on the question of damages was the following: “On the date of deceased’s death, what were his yearly earnings which would have been contributed to plaintiffs?” To which the answer was: “We answer net $250.” The court entered judgment for plaintiffs for $3,500, and it is complained that this judgment is for an amount not found by the jury, and that in this character of case the amount recovered under the provisions of article 4704, Rev. St., must be assessed by the jury and not by the court It is true that the amount of the damages cannot be determined from the verdict of the jury without taking into consideration many other uncertain elements which the appellant had the right, upon seasonable insistence, to have the jury pass on. No request for the submission of any other special issue was made by the appellant, and, if the case is to be determined by the law and rules of general practice, this failure to request the submission of such special issues as to the amount of damages recoverable was tantamount to a waiver of the right of trial by a jury as to such issue, and agreement that the same might be determined by the court from the evidence. Rev. St. art. 1985; Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132. We do not think that it was the intention of the Legislature, in the adoption of article 4704, Rev. St., to institute a rule in the trial of these cases in reference to the demand for a jury and submission of the issue of damages, different from the general rule governing such matters. This article has to do more particularly with the apportionment -of the damages, and, while it is true that it says that “the jury may give such damages as they may think proportioned to the injury resulting from such death,” we do not think it was intended to provide that a trial of this character of ease could only be had before a jury, or that the court could not try the issue of damages if the requirements of the general law necessary to secure its determination by a jury had not been complied with.

The other assignments complain that the judgment is excessive. It appears that the financial condition of the parents was such as that they would not probably, need the services and financial aid of their son. The young man was still at home, devoting all of his time to the service of his parents, at the time of his death. There is nothing in the record to show that the son was under any particular obligation, either legal or moral, to continue to render his services to his parents, or that his disposition and inclination were different from those of the normal boy upon reaching his. majority. Common experience teaches us that, when a young man reaches this age, the realization of his own manhood and sense of duty to his own individuality and career is'apt to soon cause him to fare forth for himself and prepare to assume the responsibilities and relationships that result in the development of each individual life. The parents are entitled to recover only compensation for the services and contribution that might be reasonably expected to have been rendered them by their son. Having regard to these considerations, we are inclined to the opinion that the recovery was too large. In view of another trial, we refrain, however, from discussing this matter further and do not definitely pass on this assignment.

For the reasons stated, the cause is reversed and remanded.
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author: CONNER, C. J.

text:
    McCOY v. WICHITA FALLS MOTOR CO. et al.
    (No. 8943.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 30, 1918.)
    1. Appeal and Error <®=>719(1) — Assignments op Error — Fundamental Question.
    A fundamental question is to be considered on appeal, regardless of the sufficiency of the assignment of error.
    2. Judgment <®=585(4) — Estoppel—Matters Decided — Breach of Warranty.
    In suit ujjon notes for price of auto truck, wherein buyer pleaded breach of warranty, judgment on notes and that buyer take nothing- by his cross-action, was a defense to buyer’s subsequent action for damages for same breach of warranty.
    3. Judgment <®=>956(1) — Presumption — Issues.
    Where judgment in seller’s action on notes given for an auto truck recited buyer’s cross-action for damages for breach of warranty and misrepresentations, and that he take nothing thereby, it would be presumed that issue as to misrepresentations was presented..
    .4. Brokers @=o95 — Misrepresentations by Agent — Liability.
    An agent for a sale of an auto truck, who had never seen it before sale, and who only in good faith represented its quality and material, substantially as represented by principal’s warranty printed on back of buyer’s order was not liable to buyer for breach of such representations.
    Appeal from Nolan County Court; E. E. Ray, Judge.
    Suit by Thomas McCoy against the Wichita Falls Motor Company and W. H. Bray. 'Judgment for defendants upon a directed verdict, and plaintiff appeals.
    Affirmed.
    Grisham, Babb & Grisham, of Sweetwater, for appellant.
    Beall & Douthit and James L. Spiller, all of Sweetwater, for appellees.
   CONNER, C. J.

Thomas McCoy instituted this suit against W. I-I. Bray and the Wichita Falls Motor Company for damages in the sum of $950; that being the alleged difference between the value of an automobile truck purchased from the defendants named as it was actually delivered and the value of such truck had it been as represented and warranted. The plaintiff alleged that the truck had been sold to'.him as a l%-ton truck, whereas it was but a 1-ton truck; that the defendants had represented that it was new when in fact it was old; that it was made with good material and in a workmanlike manner, whereas the material was old and the work defective. It was further alleged .that the truck had been purchased upon both expressed and implied warranties, which were relied upon by the plaintiff and constituted inducements for the purchase.

The defendant Bray answered by denials and specially that in the transaction he act-' ed for the defendant, the Wichita Falls Motor Company, as agent merely, and that he did not knowingly or purposely make any fraudulent representations to the plaintiff; that those made by him were authorized by the company; and further that the plaintiff had contributed to his damage by overloading and speeding the truck.

The Wichita Falls Motor Company, among other things, pleaded in bar a judgment of the district court of Wichita county, wherein it was alleged that the complaints made by the plaintiff in the present action had been there adjudicated against him.

A trial proceeded before a jury, and upon the conclusion of the evidence the court gave a peremptory instruction for both defendants, and the plaintiff, McCoy, has appealed from the judgment which followed the instruction.

The controlling Question, which perhaps is fundamental in character and therefore to be considered regardless of the sufficiency of the assignment, is presented by appellant’s seventh assignment of error, which goes to the action of the court in giving the peremptory instruction.

We conclude that the court did not err in this respect. The evidence shows without dispute that upon appellant’s purchase of the truck in question he gave a number of purchase-money notes which were later declared upon in the district court of Wichita county, and in that suit appellant duly appeared and answered, among other things pleading by way of cross-action, substantially the same matters as presented in this suit. The judgment that followed was not only in favor of the Wichita Falls Motor Company for the amount of the notes, but also contains the following further recitation and adjudication, viz.:

“And it further appearing to the court that the d'efendant, Thomas McCoy, on December 13, 1916, filed his cross-action in this suit, wherein he asked for damages by reason of a warranty and misrepresentation on the part of the plaintiff, the Wichita Falls Motor Company, as to the material, workmanship, and capacity of said Wichita truck which he purchased, it is therefore ordered, adjudged, and decreed by this court that the defendant, Thomas McCoy, take nothing by reason of said cross-action, and that the plaintiff, the Wichita Falls Motor Company, go hence without day, and recover from the defendant all costs in this behalf expended, for which let execution issue.”

It is also undisputed that the judgment referred to has never been set aside nor ap,peal therefrom taken, and we therefore think, under repeated decisions and well-established principles, that it must be held that the judgment referred to constitutes a .perfect defense in favor of the Wichita Falls Motor Company against appellant’s action in this suit. See Foster v. Wells, 4 Tex. 101; Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77; Beaumont Irri. Co. v. Delaune, 107 Tex. 381, 180 S. W. 98; Parker v. Emerson, 176 S. W. 146.

The only attack made by appellant upon the judgment mentioned is based upon the testimony of the attorney who represented appellant in the Wichita county action, to the effect that, after having presented the ■original answer containing the cross-action referred to in the judgment, he had filed an amended answer. If, under the authorities above cited, this would under any view of the ease, constitute a difference, no force can be attached to the testimony of the attorney referred to. No effort was made to show whether the amended answer did or did not set up the representations and the breaches of warranty averred in this case and we think we must presume from the recitations of the judgment that in fact the issues were presented. They were certainly adjudicated by the judgment, and the judgment concludes the question.

It only remains to determine whether the peremptory instruction was erroneous as to the defendant Bray. We think the record fails to so show. There is no contradiction in the evidence to the effect that Bray acted in the sale of the auto truck only as an agent; that he, in fact, never saw the truck before the sale, and did no more than to represent the. truck, its quality and material, ■substantially, as was represented by the order and warranty of the Wichita Falls Motor Company printed upon the- back of appellant’s application or order for the purchase.

There was evidence tending to show that the truck as delivered was, in fact, a one-ton truck, and not a l%-ton truck, as represented it would be, and also in material and workmanship it was defective, but we find no evidence whatever tending to show that the agent Bray acted otherwise in the sale ■ than in good faith. Appellant contends, however, that, he having bought the truck and relied upon the representations averred, the falsity thereof constituted a civil fraud which would render Bray liable. In disposing of this question we think we can do no better than to quote the language used by Chief Justice Wilson of the Texarkana Court of Civil Appeals in disposing of the case of Wimple v. Patterson, reported in 117 S. W. 1034, viz.:

“Generally speaking, it may be said that for material and false representations made by his agent, as fully as for such representations made by himself in person, the principal is responsible, if he authorized the agent to make them, or if they were made by the agent in the course of his employment as such. Wh^n so made by the agent, such representations are to be treated as the representations of the principal, and whether the principal, if he made such representations, or his agent, if he made them, knew them to be false, or made them innocently, believing them to be true, is of no importance in determining the liability of the former for damages •actually suffered, where the representations were intended to induce, and did induce, a buyer-to purchase property he otherwise would not have purchased of the principal. In such a case, if the representations were fraudulently made, the liability of the principal need not be rested upon the tort, but may be referred to the contract, for, whether made innocently or deceitfully, such representations as against the seller operate as a warranty. Loper v. Robinson, 54 Tex. 510; Rhoda v. Annis, 75 Me. 17, 46 Am. Rep. 354; 30 Am. & Eng. Encyc. Law (2d Ed.) p. 136; 14 Am. & Eng. Encyc. Law (2d Ed.) pp. 87, 156. They do not so operate as against the agent, when he avowedly acts, not for himself, but for one known by the purchaser to be his principal. The contract in such a case is not the contract of the agent. He does not, merely, because he may have negotiated it, become liable as a party to it. He is not in the position of having warranted the truth of the representations made by him to induce, and which do induce to his hurt, the purchaser to contract, not with him, but with his principal. If, under the circumstances stated, the agent becomes liable to the purchaser for damages suffered by him, it is by force of other principles of law than those which measure and fix the rights of parties to a contract. His liability, under such circumstances, must be measured by the laws of torts. Eor his fraudulent acts he is responsible to the buyer. He is not liable on the contract negotiated by him for his principal, but he is liable for his own fraud aind deceit practiced on the purchaser to induce him to enter into the contract. If the fraud or deceit charged consists of false representations as to material facts made to the purchaser, to show a liability on the part of the agent it must be made to appear that he made such representations knowing them to be false, or, as stated by a writer in 20 Cyc. 24, that he made them ‘as a positive assertion calculated to convey the impression that he had actual knowledge of their truth, when in fact he was conscious that he had no such knowledge.’ It follows, from the principles stated, that when the agent, so acting within the scope of his employment as to bind his principal, honestly believes representations made by him to induce the purchaser to contract with his principal to be true, he is not liable either on the contract or as for a tort.”

See, also, 1 Mechem on Agency (2d Ed.) §§ 1357, 1406, 1452, and 1458.

Applying the principle so clearly stated by Chief Justice Wilson to the undisputed facts of this case, we think there was no error in the court’s peremptory instruction in appellee Bray’s favor.

Appellant presents a number of other assignments which not only seem subject to objections made thereto by appellees, but which also relate wholly to proceedings in the trial that are entirely immaterial* in view of the conclusions already announced. We need not therefore consider the remaining assignments.

The judgment will accordingly be affirmed.
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