author: LEVY, J.

text:
    WESTCHESTER FIRE INS. CO. v. ROBINSON.
    (No. 1705.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 25, 1917.)
    1. INSURANCE <@=145(1) — Contract between Agent and Insured — Construction.
    A parol agreement by the agent of an insurer with insured, made at the time the policy was issued, that the agent would keep the insurance in force by renewing the policy before it expired, the insured to pay the premium for each renewal, was in legal effect an executory contract to contract in the future to renew the policy, which would require the interposition of equity to give it effect, and was not an executed contract of renewal or to insure in the future.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 276, 278-283, 287-291.]
    2. Insurance &wkey;>145(2') — Agents—Authority —Renewal.
    An insurance company, through its authorized agent, may contract by parol for the renewal of a policy.
    [E'd. Note. — For other cases, see Insurance, Cent. Dig. § 277.]
    3. Insurance <&wkey;128(l) — Specific Performance <@=^78 — Contract to Insure in Future.
    Contracts to insure in the future are valid, and specific performance thereof may be compelled even after a loss which would be covered by the policy if issued.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 188-191; Specific Performance, Cent. Dig. § 213.]
    4. Insurance <&wkey;608 — Contract for Renewal.
    A contract of insurance or for the renewal of a policy is an executed contract, which can be enforced at law.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1517, 1519.]
    5. Insurance <&wkey;>145(2) — Agent—Authority of Agent — Contract for Renewal.
    While a provision in a fire policy that the policy could, by renewal, be continued in consideration of the premium for the renewal term would authorize an agent who was authorized to make insurance and issue and deliver policies to make a parol contract for renewal in the future, it did not authorize an oral agreement to contract in the future to renew the policy on its expiration, and the company was not bound by such agreement.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 277.]
    6. Insurance &wkey;>145(2) — Agent — Personal Liability.
    Where the agent of a fire insurance company was not authorized to make an agreement to contract for a renewal of the policy in the future, an oral agreement to do so was the individual promise of the agent.
    [Ed. Note — For other cases, see Insurance. Cent. Dig. § 277.]
    Appeal from District Court, Rusk County; W. C. Burford, Judge.
    Action by Mrs. E. C. Robinson against the Westchester Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and entered.
    Appellee’s dwelling and its contents were destroyed by fire on April 6, 1914, at about 2 o’clock in the afternoon. This action is brought by appellee to recover the amount of 81,000 alleged to be due on a renewal contract of insurance on the dwelling and the household goods. The defendant denied the allegations in the petition, and pleaded the want of authority in the agent to make the character of agreement claimed by plaintiff, On April 5, 1913, appellee procured from the appellant, through its agent at Tatum, Tex., a policy of insurance upon the dwelling and the household goods. The policy insured the dwelling and household goods in the sum of $1,000 from April 5, 1913, to noon April 5, 1914. T. M. Kensey was the agent of appellant company at Tatum on April 5, 1913, and at all times since.- He had authority from the appellant company to take applications for fire insurance, to inspect the property, to write and .deliver the policies, and to collect the premiums. He was not required to send an application for insurance to the home office before issuing and delivering the policy, but he was required to make a report, each day, of the policies written. The appellant company authorized the issuance only of a one-year policy or a three-year policy. The agent testified that it was his practice, very shortly before a policy issued by him expired, to go to the policy holder and ask him if he wanted it renewed, and if the policy holder said yes, he would actually renew it, otherwise he would not. There is no evidence showing authority in the agent Kensey to make agreements to contract in the future to renew insurance. The policy issued on April 5, 1913, contains the following provision:
    “This policy may, by a renewal, be continued under the original stipulations, in consideration of premium for the renewed term, provided that any increase of hazard must be made known to this company at the time of renewal or this policy shall be void.”
    Appellee testified that on April 5, 1913, the day the policy was issued, she and Ken-sey, as agent of appellant, entered into a pa-rol agreement by which Kensey, as agent, promised and agreed that said policy could be left in force by renewal thereof from time to time as same might expire, appellee to pay the same annual premium for each renewal. The agent Kensey denied the existence of such oral agreement. Appellee testified as follows:
    “I had written Mr. Kensey, the agent of the Westchester Eire Insurance Company, to come up to see me, and he did come up and wrote a policy for me. He proposed to insure the dwelling and furniture for a term of three years, and I told him one year would he all right if he would keep it up and renewed every year. Mr. Robinson, my husband, always did that, that is, have the policy written for a one-3'ear term, and I will do the same. I thought that was all I had to do, was to pay the premium, and that would keep it up, that is what I wanted to do and intended to do, was to keep it up. Mr. Kensey was the agent of Westchester Eire Insurance Company, and made me the promise and agreed to renew the policy before its expiration and keep it in force, my understanding being that he was to keep it up and I had to pay the premium when the new policy was turned over to me. Mr. Kensey as the agent of the Westchester Fire Insurance Company agreed to keep the policy in force in the same company that the first policy was written in, the Westchester Fire Insurance Company, and that the premium would be $13 a year, and I paid that sum. * * * Mr. Kensey, the agent, first suggested that I take out a three-year policy, and I said that I did not want it that way, but wanted a one-year policy. I wanted him to keep it up, to see that it did not run out, and I was to pay for it, and I thought that was all that I had to do. I depended on him to keep it up, and I was to pay for it. I told him that I wanted to keep it up every year; he wanted it three years, and I said that one year will do; that Mr. Robinson kept it that way and I will pay it that way, and I paid it. * * * Aside from the $13 I paid Mr. Kensey I have paid him no other sums.”
    The only premium paid by appellee was the premium on the policy of April 5, 1913. There was no policy of renewal actually issued, or renewal actually made. Insured made proofs of loss, and defendant denied liability and refused to pay the loss. The case was submitted to the jury on the following single special issue:
    “State whether or not T. M. Kensey orally agreed with Mrs. E. C. Robinson that he would keep her insurance in force by renewing the policy before the same would expire, her only obligation being to pay the payment for each renewal.”
    The jury answered, “Yes.” The court thereupon entered judgment for appellee for the insured amount of $1,000.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for appellant. Chas. L. Brachfield, of Henderson, for appellee.
   LEVY, J.

(after stating the facts as above). Appellee predicates the right of recovery for the loss of the dwelling and goods as upon a contract of renewal of her policy of April 5, 1913, expiring at noon April 5, 1914, before the fire. And the most important question in the appeal is whether, upon the facts, the appellee is entitled to recover. As found by the jury, T. M. Ken-sey orally agreed with appellee that he would keep her insurance in force by renewing the policy before the same would expire, the appellee to pay the premium for each renewal. And in the light of the evidence .it is made clear that the agreement, as expressed in the verdict, was made at the time the policy of April 5, 1913, was taken out, and that there was intended by the parties only the continuing in force of said policy after its expiration according to its terms by renewal thereof from time to time, without limit of duration, as same might expire, upon appellee’s paying the same annual premium for each renewal. The language of the agreement, in the light of the surroundings, plainly indicates an intention on the part of the agent, Kensey, to do something for ap-pellee in the future, rather than a present assumption of an obligation upon his company. And the character of the agreement is, in legal effect, that of an agreement to contract in the future to renew the policy. It is not an executed contract of renewal nor an executed contract to insure in the future. It is not doubted that an insurance-company, through its authorized agent, may contract by parol for the renewal of a policy. Cohen v. Ins. Co., 67 Tex. 325, 3 S. W. 296, 60 Am. Rep. 24. And contracts to insure in the future are held valid, and specific performance thereof may be compelled even after a loss which would be covered by the policy if issued. But the law distinguishes between the executed contract of insurance or for renewal of the policy and a mere promise or agreement to contract in the future to renew the policy.

A contract of insurance or for the renewal of the policy is an executed contract, which can be enforced at law. And a promise or agreement to contract in the future to renew the policy is executory, and requires the interposition of equity to give effect to the agreement of the parties. 1 Wood on Ins. §§ 29-31; 6 R. C. L. p. 590, § 9. And the promise of an agent, as here, to renew a policy at its expiration is not equivalent to a renewal. Benner v. Fire Assoc., 229 Pa. 75, 78 Atl. 44, 140 Am. St. Rep. 706.

In Zell v. Ins. Co., 75 Wis. 521, 44 N. W. 828, the plaintiff held a policy of insurance for one year, expiring March 30, 1887; and shortly before the expiration of this policy he applied to the agent of the company to renew or continue in force the policy for another year from the termination of the existing policy, and paid the agent the premium for such renewal; and upon the payment- of such premium the agent promised the plaintiff to continue the policy in force for another year. It was held by the court that under such facts the contract was a completed oral contract of renewal insurance and within the authority of the agent to make and binding on the company. And on a similar state of facts, and with the same holding of being a completed contract of renewal, are the following: Newark Machine Co. v. Ins. Co., 50 Ohio St. 549, 35 N. E. 1000, 22 L. R. A. 768; More v. Ins. Co., 130 N. Y. 537, 29 N. E. 757; Hardwick v. Ins. Co., 20 Cr. 547, 26 Pac. 840; Croft v. Ins. Co., 40 W. Va. 508, 21 S. E. 854; King v. Ins. Co., 58 Wis. 508,17 N. W. 297; Campbell v. Ins. Co., 73 Wis. 100, 40 N. W. 661. But all these cases and the principle of law made applicable are quite different from the instant case. In these cases, and generally, it is held that the agent has authority to make a parol contract for renewal in the future where he is authorized to make insurance and issue and deliver policies. But it is not held that the power of th’e agent, arising under the authority proven, to make a contract for renewal is broad enough to authorize him to bind the company by an agreement to contract in the future, to renew the policy. The policy in evidence stipulates that it may, by renewal, be continued under the original stipulations, in consideration of premium for the renewed term. But in McCabe v. Ætna Ins. Co., 9 N. D. 19, 81 N. W. 427, 47 L. R. A. 641, this identical provision was in review, and it was there held that this provision only authorized the agent to make a contract for renewal, and not to make a preliminary agreement to renew in the future the policy upon its expiration. It is therefore concluded that the agreement in the instant case is lacking in the essentials of a completed contract to renew the policy at its expiration, and that there is no proof that th'e agent had authority to make the agreement in the case.

Consequently the agreement found by the jury, must be held to be the individual promise or undertaking of T. M. Kensey, and the company was not bound. Diamond v. Duncan (Sup.) 172 S. W. 1100. This ruling requires that the judgment be reversed, and that judgment be here entered in favor of appellant, with costs of appeal and of the trial court.
      <B=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BOYCE, J.

license: Public Domain

text:
    SMITH et al. v. JONES.
    (No. 1102.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1917.
    Rehearing Denied March 7, 1917.)
    1. Reformation of Instruments <&wkey;>17(l) — Mutual Mistase — Source of Title.
    Where the parties to a deed make a mutual mistake regarding the source of the grantor’s title, equity will reform the deed or grant other-appropriate relief.
    [Ed. Note. — Eor other cases, see Reformation of Instruments, Cent. Dig. §§ 69, 71.]
    2. Reformation of Instruments <&wkey;45(6)— Sufficiency of Evidence — Mutual MisTAKe.
    Evidence held, to sustain a jury finding that the parties to a deed made a mutual mistake regarding the source of grantors’ title, although the grantors did not testify and the grantee read the deed before accepting it.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. § 163.]
    3. Reformation of Instruments <&wkey;>44 — Admissibility of Evidence — Mutual Mistake.
    Testimony regarding the grantee’s conversations with attorneys who drew a deed to her held admissible on the issue of mutual mistake regarding the grantor’s source of title.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156.]
    4. Reformation of Instruments <&wkey;44^-Au-MISSIBILITY OF EVIDENCE — MUTUAL MISTAKE.
    Evidence that the grantee had inventoried certain property as her deceased husband’s separate estate was admissible to show that she had concurred in a mutual mistake regarding the source of title to such property.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156.]
    5. Reformation of Instruments <&wkey;44 — Admissibility of Evidence — Mutual Mistake.
    On an issue of mutual mistake in a deed, the grantors’ power of attorney giving authority to dispose of their entire interest in the property was admissible.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 155, 156.]
    6. Appeal and Error &wkey;»731(5) — Assignment of Error — Sufficiency.
    An assignment of error that the verdict is contrary to the law and evidence, and the court’s judgment contrary to law, is too general to require consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3021.]
    7. Real Actions <&wkey;8(2) — Admissibiltiy of Evidence — Expenditures of Defendant.
    Where defendant in an action to recover real property claimed the deed was intended to convey the entire estate to her, but that in any event she should have' a lien for sums expended, evidence regarding part payment of mortgage debts on the property from her separate estate is admissible.
    [Ed. Note. — For other cases, see Real Actions, Cent. Dig. §§ 29, 30.]
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    Action by Lillie A. Smith, and others against Norah E. Jones. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    W. H. Bledsoe and R. A. Sowder, both of Lubbock, for appellants. J. W. Burton, of Crosbyton, T. F. Houghton, of Floydada, Percy Spencer, of Lubbock, and R. E. Underwood, of Amarillo, for appellee.
   BOYCE, J.

W. A. J. Jones was on November 7, 1898, awarded four sections of land belonging to the public school fund, in Crosby county, Tex., described as sections 2, 2y2, 4%, and 6y2, Block H. A. B. & M. The said W. A. J. Jones was at the time intermarried with Sarah E. Jones, and there were eight children of this marriage. The said Sarah E. Jones died on December 11, 1898, and W. A. J. Jones in the year 1902 married the defendant, Norah E. Jones. During the lifetime of the said W. A. J. Jones he, joined by the said Norah E. Jones, his second wife, sold section 4% and one-half of section 2%. The said W. A. J. Jones died on November 1, 1900. This suit was brought by six of the eight children of the said W. A. J. Jones and Sarah E. Jones, to wit, Dillie A. Smith, joined by her husband, Mattie Martin, joined by her husband, Delia Land, joined by her husband, R. R. Jones, J. A. Jones, and Dickson Jones, against the second wife, Norah E. Jones, and the other two children of the first marriage, alleging the foregoing facts, and the following additional facts, which may be pertinent in the decision of this appeal: That after the death of W. A. J. Jones the defendant, Norah E. Jones, conveyed to three of the children of said W. A. J. Jones and Sarah L. Jones all of said survey 6%; that each of the plaintiffs was entitled to a one-eighth interest in the property remaining, to wit, section 2 and one-half of section 2%, and a like interest in the consideration of the sale of section 6%, and other property belonging to the community estate of the first wife. Plaintiffs prayed for an accounting, judgment for each of the plaintiffs for a one-eighth interest in the 900 acres of land described, partition thereof, etc.

The defendant, Norah E. Jones, answered, in addition to the general denial, that she had settled with all of the plaintiffs for their entire interest in all of said property, and they had executed and delivered to her deeds of conveyance thereof; that in this settlement conveyance of parts of said section 6% was made to three of the children, and that she had conveyed various property and paid stated sums of money to the plaintiff, and had assumed and paid out of her separate property a large amount of indebtedness against the said land, which indebtedness was a lien thereof, created by the said W. A. J. Jones; that if the deeds as drawn did not convey the entire interest of the said plaintiffs in said property, but only the interest inherited from their father, W. A. J. Jones, then they did not correctly express the intention and understanding of all the parties, and the .wording thereof was the mistake of the scrivener, and that all of the parties intended and believed that the said deeds had been written to convey the entire interest of the plaintiffs to defendants, and such mistake was mutual and participated in by all the parties, and that such deeds, if they did not so convey said interest, should be corrected; that the defendant had in such settlement paid full value for the entire interest of each of said plaintiffs in said property, without notice of any other interest claimed by them, and was therefore an innocent purchaser for value. She prayed that said deeds be construed as a conveyance of the entire interest of said parties, and in the alternative for a decree reforming said deeds to correct the mistake, and, in the event judgment should be rendered against her for the land, for an accounting and judgment for amounts due her thereunder.

The plaintiffs by their supplemental petition entered a general denial, and specially answered that the deeds executed by them respectively conveyed only their interest in the property inherited from their father, W. A. J. Jones, and did not convey any part of their interest in their mother’s estate.

Upon the trial evidence was introduced establishing the facts already stated. The defendant offered in evidence a deed dated May 7, 1907, executed by the plaintiffs Lillie A. Smith and her husband, the material parts of which are as follows:

“That we, Lillie A. Smith, joined by her husband, John W. Smith, etc., for and in consideration of the sum of $763.90, to us in hand paid by Norah E. Jones, etc., do by these presents bargain, sell, release, and forever quitclaim unto the said Norah E. Jones, etc., all our right, title, and interest in and to all that certain property described as follows, to wit: All of the undivided interest which I, the said Lillie. A. Smith, have in the estate of W. A. J. Jones by reason of me being a daughter of the said W. A. J. Jones. This conveyance covers all my undivided interest in and to all lands, personal property of whatever kind or description, moneys, notes, or other property that the said W. A. J. Jones may have owned at the time of his death, or any property that said estate may come into possession of, situated or located anywhere in the state of Texas, or the United States of America. * * * To have and to hold the said premises and property, etc., so that neither we, the said Lillie A. Smith and John W. Smith, nor our heirs, nor any person or persons claiming under us, shall at any time hereafter have, claim, or demand any right or title to the aforesaid premises, or appurtenances, or any part thereof.”

The defendant, Norah E. Jones, also offered in evidence five separate deeds executed by the five plaintiffs other than the said Lillie A. Smith, respectively. Said five deeds are in identical terms, except as to the names of the grantors, date, and consideration. The material portions of one of such deeds are as follows:

“J. A. Jones (son and heir at law of W. A. J. Jones, deceased, late of county of Floyd, state of Texas), joined by his wife, Mrs. Emmabelle Jones, of the county of Eloyd and state of Texas, for and in consideration of the sum of $2,00(1 to us in hand paid by Mrs. Norah E. Jones, surviving wife of said W. A. J. Jones, deceased, and administratrix of the community estate of herself and of said husband, W. A. J. Jones, deceased, receipt of which is hereby acknowledged and confessed, do by these presents bargain, sell, release, and forever quitclaim unto the said Mrs. Norah E. Jones, surviving wife and community administratrix of the estate of said W. A. J. Jones, deceased, as aforesaid, her heirs and assigns, all our right, title, interest, and estate in and to any and all lands situated in the counties of Crosby and Eloyd, or elsewhere in the state of Texas, to which we are or may be entitled, standing in the name of the said W. A. J. Jones at the time of his death, or belonging to his estate; it being the intention of this conveyance to convey any and all right, title, and interest which we may have or may be entitled in or to, any and all real estate or personal property of whatsoever kind or wheresoever situated standing in the name of or belonging to the estate of said W. A. J. Jones, deceased, or to which I, the said J. A. Jones, may be entitled by reason of being a son and heir at law of the said W. A. J. Jones, deceased, and we hereby acknowledge ourselves to be forever barred from demanding, receiving, or claiming any further part of the estate of the said W. A. J. Jones, deceased. The said two thousand ($2,000.00) dollars this day received from the said Mrs. Norah E. Jones, ad-ministratrix as aforesaid, being our full share of the estate of the said W. A. J. Jones, deceased. To have and to hold the said premises, together with all singular the rights, privileges, and appurtenances thereto and in any manner belonging, unto the said Mrs. Norah E. Jones, her heirs and assigns forever, so that neither we, the said J. A. Jones and wife, Mrs. Emma B. Jones, nor either of us, nor our heirs, nor any person or persons claiming under us, shall at any time hereafter have claim or demand any right or title to the land or to the property belonging to the estate of the said W. A. J. Jones, deceased, or any part thereof.”

As the construction of these instruments and the intention and understanding of the parties as to their effect are the material questions to be determined on this appeal, we will, in addition to the statement already made, here set out at some length the facts surrounding and leading up to their execution: At the time of the award of the land to W. A. J. Jones his family were in Hamilton county, Tex., where the said Sarah E. Jones died on December 11, 1898, and the said W. A. J. Jones did not live with his family on the land until spme time later, perhaps in thd year 1900. The defendant, Norah E. Jones, married W. A. J. Jones in Crosby county. She knew that the first wife had died in Hamilton county, hut testified that she did not know that the first wife had any interest in the lands, and that in the negotiations for a settlement with the heirs preliminary to the execution of the respective conveyances made by them no mention was made of any interest by inheritance from Sarah E. Jones; that in the figures on which the settlements were based the entire interest in said property was considered; that she never heard of any claim of the said heirs to an interest through inheritance from their mother until after the filing of this suit, on October 24, 1914; and that she understood that by such deeds she was acquiring the entire interest of the respective heirs to the property. Upon the death of W. A. J. Jones the defendant qualified as community administratrix, and on December 28, 1906, filed an inventory and appraisement of the estate of W. A. J. Jones, in which said sections 2, 6%, and the unsold portion of 2y2 were listed as the separate property of the deceased, W. A. J. Jones. The deed executed by Lillie A. Smith was prepared by E. B. Covington, an attorney residing in Crosby county, who testified that he had resided in said county long prior to the time that W. A. J. Jones moved to the county, and at that time knew all the people in the county; that on the occasion of the execution of the deed from Lillie A. Smith and her husband to Mrs. Jones Mrs. Jones stated that she had bought out Mrs. Smith’s interest in the land, etc., and wanted him to prepare the deed; that this was about all that was said; that Mrs. Jones and Mrs. Smith and her husband were in the office together; that he prepared the deed from his own knowledge of the facts; that he did not know that the first wife had any interest in the land. The other deeds were prepared by Arthur B. Duncan, a lawyer at Floydada. He testified with reference to the execution of the deed executed by plaintiff Mrs. Delia Land and her husband that Mrs. Jones and Mrs. Land and her husband cáme into the office together, and Mrs. Jones stated that she had bought out Mrs. Land’s interest in the property and wanted him to prepare a receipt for the full settlement, etc., as well as deed conveying the property to her, and said deed was drawn accordingly, it seems that about this time some of the heirs had employed attorneys, L. W. Dalton and associate; and Duncan testified with reference to the Dickson Jones deed that L. W. Dalton, as attorney for Dickson Jones and Mrs. Jones, defendant, went over the matter together with Duncan, and in arriving at the settlement figured the whole interest in the land, nothing being said in the presence of Mrs. Jones about any interest of Sarah E. Jones, the witness not being sure whether this matter was mentioned between him and Dalton or not. All of the deeds were read over to Mrs. Jones, and she understood their contents. The power of attorney under which said attorney Dalton was acting, purporting to be signed by the plaintiffs Mrs. Martin, L. L. Jones, and Dickson Jones, though Dickson Jones denies its execution, authorized the said attorneys to recover any property belonging to them from the estate of W. A. J. Jones, deceased. A description of such property, “so far as known,” appeared in the instrument, and this description .included said sections 2, 2%, and 4% and 6%. A certificate from the general land office was introduced in evidence in which it appeared that said land was awarded to W. A. J. Jones at $1 per acre, one-fortieth of which was paid; that required proof of occupancy had been made; and that at the date of the certificate, •to wit, November 13, 1914, said sections 2, 6% and one-half of section 2% were on good standing on the records of said office in the name of the original purchaser, W. A. J. Jones.

The jury, in response to special issues submitted, found that it was the intention of the plaintiffs and of the defendant that the entire interest of the respective grantors in the land should be conveyed. On these findings the court entered judgment for the defendant, and from this judgment the plaintiffs have taken an appeal to this court.

The defendant having conceded, under the authority of Creamer v. Briscoe, 101 Tex. 490, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869, that the land belonged to the community estate of W. A. J. Jones and his first wife, and the case having been tried on that theory, we will not discuss that question, and for the purposes of this opinion assume that such was the status of the property.

The first assignment complains of the action of the court in refusing a peremptory instruction to the jury to return a verdict for the appellants, awarding each of them a one-eighth interest in section 2 and one-half of section 214. The second assignment complains of the refusal of the requested instruction telling the jury that the various deeds executed by the appellants conveyed to Mrs. Jones only the interest of the grantors inherited from W. A. J. Jones, and not their interest inherited from their toother, Sarah E. Jones. A decision of these assignments necessarily involves a construction of the instruments themselves and a decision, in the event it is held that the deeds themselves are effective to convey only the interest inherited from W. A. J. Jones, as to whether the pleadings and the evidence are sufficient to afford the defendant, Norah1 E. Jones, relief on account of the alleged mistake.

The purpose of all construction of written instruments is the ascertainment of the intention of the parties as expressed in the instrument to he construed. If the intent is manifest from the instrument itself, then, of course, we need go no further. It is the contention of appellants, urged by these assignments, and other assignments as to the introduction of evidence surrounding the execution of these instruments, that it is clear from the face of the deeds themselves that the grantors intended to convey only their interest in the estate of W. A. J. Jones. We will examine the instruments briefly, to ascertain if this is correct: By the terms of the granting clause in the five identical deeds, the grantors conveyed all their interest in and to all land “standing in the name of the said W. A. J. Jones at the time of his death or belonging to his estate.” This description is repeated again in the further expressed declaration of the “intention” of the parties immediately following the granting clause. In the event of conflict between the description in the' granting clause and subsequent clauses, the description of the granting clause would control. Moore v. Waco, 85 Tex. 206, 20 S. W. 61; West v. Herman, 47 Tex. Civ. App. 131, 104 S. W. 430; Devlin on Deeds, § 838 (b). The description quoted does not of itself, of course, describe any specific property; it merely affords a means of identifying the property by applying the description. Ordinarily the word “or” is a disjunctive (Oxsheer v. Watt, 91 Tex. 402, 44 S. W. 67, 68), and, giving the words referred to the ordinary construction, when we come to look for property to which to apply the description, we should look for property either “standing in the name of the said W. A. J. Jones,” or “belonging to his estate,” and apply the description to both classes of property so found. When we find this property purchased in the name of W. A. J. Jones, and standing in his name, on the records of the general land office, we do not think that as a matter of law the description in the five deeds might not be properly applied to it, and we are inclined to think that under the circumstances the charges requested would have been erroneous in the absence of the issue of mistake, at least as to the five deeds referred to, and that the charges were properly refused on this account; for no distinction is made in the request between these five deeds and the deed from Dillie A. Smith. And under the finding of the jury that it was the intention of the respective grantors to convey their entire interest in the land, we are inclined to believe that the terms of the five deeds themselves are sufficient to effect such intention, though we entertain considerable doubt as to whether the deed from Lillie A. Smith and husband would on its face be sufficient for this purpose.

But, if we are mistaken in this, it would, in our opinion, have been erroneous to have given these charges, because they ignored the question of mistake raised by the pleading and the evidence and the right of the defendant to relief on such account. Giving the verdict of the jury its proper effect in relation to the facts we have stated, we think it a fair conclusion from the evidence to say that in all of the transaction's leading up to the execution of such deeds and at the time of their excution all of the parties, plaintiff and defendant, thought that the property belonged to the separate estate of W. A. J. Jones; that the appellants intended to convey their entire interest in the property, and if the wording of the deeds did not properly express this intention, it was because of the mutual mistake of the parties as to the source of appellants’ title. Under such circumstances equity will grant relief on account of the mistake, either reforming the deeds to express the true intent, rescinding the contract, or affording other appropriate redress. Pomeroy, Equity Jurisprudence (3d Ed.) §§ 841-849; 13 Cyc. p. 577; Blakeman v. Blakeman, 39 Conn. 320; Brown v. Cranberry Iron & Coal Co. (C. C.) 82 Fed. 351.

Pomeroy (paragraph 849) makes this statement applicable to this situation:

“Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, or liabilities, or other relation, either of property or contract, or personal status, and enters into some transaction the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed rights, interests, or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analogous to, if not identical -with, a mistake of fact.”

In the case of Blakeman v. Blakeman, supra, cited by Pomeroy, the grantor and grantee of certain land erroneously believed that a right of way over certain other land of the grantor was appurtenant to the land granted, and the deed executed was thought sufficient to convey such right of way as coming within the term “appurtenance” as used in the deed. The right of way was, as a matter of fact, not appurtenant to the land granted, but the court held that on account of the mutual mistake of the parties the deed might be reformed so as to embrace a conveyance of the right of way. We are of the opinion that, if the deeds did not convey the entire interest of the grantors, equity would afford the grantee relief by reason of the mutual mistake of the parties, as above stated.

The third assignment assails the verdict of the jury as being without evidence to support it, mainly on the ground that there was no evidence whatever as to the intention of the appellants. While appellants did not testify at all as to their understanding of the transaction, we think the circumstances which we have stated were sufficient to authorize the jury to find that they dealt with the defendant under the belief that their rights in the property came through inheritance from their father, and that they were conveying their entire interest to her. Appellants also assert in this connection that Mrs. Jones, because of the fact that the deeds were read over to her, and prepared under her direction, and she fully understood their contents, could not complain of a mistake therein. The deeds were appropriate to carry into effect the intention of the parties under their mistaken belief as to the .source of appellant’s title, but this mistake is sufficient to furnish the basis of relief in equity.

The fourth assignment is with reference to the action of the court in admitting the testimony of Mrs. Norah E. Jones, E. B. Covington, and Arthur B. Duncan as to conversations had at and prior to the time of the execution of the various deeds by the appellants and as to the intention of Mrs. Jones as to acquiring the entire interest of the appellants in the property. We think these facts and circumstances were admissible on the issue of mistake and for the purpose of ascertaining the intention of the parties at the time. For the same reason, we are of the opinion that there was no error in admitting evidence to the effect that in the administration of the community estate of W. A. J. Jones Mrs. Norah B. Jones had inventoried this property as a part of the separate estate of W. A. J. Jones. The power of attorney to L. W. Dalton was also admissible for the same reason. These facts tended to show how the parties regarded this property at the time. For these reasons, we overrule the fifth assignment and the third proposition of appellants’ sixth assignment, complaining of the charge of the court with reference to the power of attorney referred to.

For the reasons hereinbefore stated, we also overrule the specific matters called to our attention by specific propositions under the sixth assignment of error which complains of the charge of the court. The assignment embodies in it a bill of exception to the charge of the court which contains 14 separate exceptions to various parts of the charge. We have not considered these 14 different exceptions, except in so far as we have considered the specific propositions. The assignment is multifarious, and ,we have undertaken to consider only the specific matters mentioned in the propositions.

The seventh assignment, that the verdict of the jury is contrary to the law and the evidence, and the judgment of the court is contrary to law, is too general to require consideration.

The eighth and ninth assignments complain of the admission of testimony to the effect that W. A. J. Jones, during his lifetime, to wit, January 23, 1906, had mortgaged these lands to E. B. Covington to secure a note executed by the said W. A. J. Jones for $4,500, that Covington at the time had no knowledge that such property belonged to the community estate of said W. A. J. Jones and Sarah E. Jones, and that this note had been partially discharged by Mrs. Norah E. Jones, she paying the same, partly by community funds, and partly by her separate funds, and that the balance due on the note, to wit, $2,750, was secured by a deed of trust on separate property of Mrs. Jones, executed since the alleged settlement with the heirs. The plaintiffs in their petition had alleged that at the time of the .death of their mother, Sarah E. Jones, the community estate owned not only the four sections of land hereinbefore mentioned, but also certain other land and certain personal property, that the other land and personal property had been sold, and that the defendant, Norah E. Jones, was aware of the amount for which said property had been sold, and the disposition that had been made of the proceeds. They also alleged that after the death of W. A. J. Jones the defendant conveyed to three of the heirs survey No. 6%, above described. They alleged that on account of the appropriation by W. A. J. Jones of sections 4% and one-half of section 2% plaintiffs were entitled to the entire interest in the remaining portions of section 2% and section 2. They prayed that an accounting be had and that the plaintiffs recover of the defendant the value of their interest in the land and personal property which had been sold by W. A. J. .Jones, also one-half of the proceeds of the sale of survey 6%, and for judgment for the 960 acres of land remaining out of sections 2 and 2]4.

The defendant in her answer set up the fact of the execution of .said deed of trust to E. B. Covington, alleging that under the facts of its execution it was a charge upon the entire property, and that after the settlement with the plaintiff in which she thought that she acquired their entire interest in the property she had, out of her separate funds, paid debts owing by the said W. A. J. Jones, including the $4,500 above mentioned, securing the balance still due on said note by deed of trust on her separate property. After pleading the mistake with reference to the interest conveyed by the plaintiffs, as already stated, she asked that the said deeds be reformed to correct the mistake, but that, if plaintiffs recover said land, they be required to refund to her the consideration which she had paid for the same, and that such amount, together with the amounts paid by her out of her separate property, in discharge of the mortgage to E. B. Covington, be charged as a lien against the property recovered by the plaintiffs. We understand that, if a mistake were made by the parties as to the interest conveyed, as alleged, the court might grant relief by reforming the deeds, or, if that might not properly be done, by rescinding the contracts. This testimony was doubtless offered, and, we believe, was admissible, on the issues thus presented by the pleadings.

Finding no error pointed out by any of the assignments, we are of the opinion that the judgment should be affirmed; and it is so ordered.

Affirmed.

       sS=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    COLLINS v. UNITED BROTHERS OF FRIENDSHIP AND SISTERS OF THE MYSTERIOUS TEN.
    (No. 1716.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 17, 1917.
    Rehearing Denied Feb. 1, 1917.)
    1. Insurance <Ss^817(2) — Fraternal Insurance — Evidence—Presumption and Burden of Proof.
    In an action on a policy of fraternal insurance by the beneficiary named therein, where the evidence showed that the deceased was, at the. time of making her application, over 45 years of age, which age under the constitution of the society was the maximum age limit for females who may obtain insurance in the order, the presumption would be that the deceased stated her correct age in her application, and it devolved upon defendant to prove the contrary.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2001.]
    2. Insurance <&wkey;723(3, 4) — Fraternal Societies — Application—Representation as to Age.
    If the application showed the age of the deceased to be under 45 years, it would be binding upon her beneficiary as a representation of material fact.
    [Ed. Note — For other cases, see Insurance, Cent. Dig. § 1859.]
    3. Evidence <&wkey;78 — Presumption—Suppression op Evidence.
    As the evidence showed that the original certificate and application had been delivered to the defendant with the proofs of death, the inference is that. they were available for evidence at the trial, and the failure of the defendant to present them at the trial, when other proof of what they would have probably disclosed, is a circumstance against the defendant, and tends to weaken its defense that the insurer in her application falsely represented her age to be less than 45 years at that date.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 98, 100.]
    4. Insurance <&wkey;819 (2) — Fraternal Society — Action on Policy — Evidence — Sufficiency.
    Evidence held insufficient to support a jury finding that the insured had falsely represented her age to be less than 45 years at the time of making her application for insurance.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2007.]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Suit by Roland Collins against the United Brothers of Friendship and the Sisters of the Mysterious Ten. Judgment for the defendant, and plaintiff appeals.
    Reversed and remanded for another trial.
    H. G. Evans and Rosser Thomas, both of Bonham, for appellant. L. C. Fuller and Cunningham & McMahon, all of Bonham, for appellee.
   HODGES, J.

The appellant is the beneficiary named in a policy of insurance for $500 issued by the appellee upon the life of his wife, Mary Collins, in 1910. In 1914 Mary Collins was drowned in a well. The certificate of insurance, together with proofs of death, were sent in, but payment was refused, and this suit followed. The defense was suicide, and false representations as to her age, made by the insured in her application for the policy. The appellee is a fraternal benefit society, and has a constitution which provides that 45 years shall be the age limit for females who may obtain insurance in the order. In response to interrogatories submitted by the court, the jury found that Mary Collins did not commit suicide, but that she had falsely represented her age to be less than 45 years at the time she applied for insurance. The appellant complains of the charge which submitted this last issue of fact, and also of the finding of the jury, upon the ground 'that the evidence was insufficient to support a finding that Mary Collins had falsely represented her age to be less than 45 years. The evidence did show that Mary Collins was over 45 years of age at the time she made application for insurance. The presumption would be that she stated her correct age in her application, and it devolved upon the appel-lee to prove to the contrary. Compton v. Marshall, 88 Tex. 50, 27 S. W. 121, 28 S. W. 518, 29 S. W. 1059. It appears that neither party was able to produce the application upon the trial, and no parol evidence was offered as to its contents. The evidence relied on to support the finding of the jury was the testimony of two of the appellee’s grand of-fleers, who issued policies to members, that if the application of Mary Collins had shown her age to be over 45, she would have been rejected by them. Neither'of these witnesses testified to having seen the application, or as to what age it disclosed. The strength of their testimony rests upon the presumption that as agents of the association they did their duty in inspecting the application, and that their acceptance was proof that the application was in proper form and disclosed an eligible applicant. The presumption that Mary Collins stated the truth is certainly as strong as one that these agents did their duty. There is, however, one circumstance which tends to weaken their testimony. The appellant introduced without objection a blank certificate of insurance corresponding to the one issued to Mary Collins. This certificate shows a blank for the insertion of the “present age” of the insured. Presumably this space was filled with the true age of the applicant or the age contained in the written application for insurance.

The evidence further showed that the original certificate had been delivered to the appellee, and that it had been called upon to produce the same upon the trial of the case. The inference is that it was available for evidence at that time. The policy was presumably issued upon a written or verbal application, and was delivered to and accepted by the insured. If it showed her age to be under 45 years it would be binding upoin her beneficiary as a representation of material fact. Railway Co. v. Dwyer, 75 Tex. 572, 12 S. W. 1001. On the other hand, if it showed her age to be over 45 years it would have seriously impeached the credibility of the appellee’s officers. The failure of the appellee to present the policy upon the trial when other proof of what it probably would have disclosed was so meager is a circumstance against it and tends to weaken its defense. Bailey v. Hicks, 16 Tex. 222; Thompson v. Shannon, 9 Tex. 536; Mutual life Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294.

We think the evidence in this case is too unsatisfactory to support the finding of the jury, and the judgment of the trial court will therefore be reversed, and the cause remanded for another trial.
      i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered ’Digests and Indexes


text:
    KNIGHTS OF MACCABEES OF THE WORLD v. HAIR.
    (No. 1728.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 25, 1917.)
    1. Insurance c&wkey;8Í9(4) — Action on Policy-Evidence — Sufficiency.
    In an action on a policy of fraternal benefit insurance by the beneficiary named therein, in which defendant alleged that the insured committed suicide, in which event under the. laws of the association the amount which could be recovered by the beneficiary was double the amount of premiums paid by the insured, evidence held insufficient to sustain a verdict for plaintiff for the total amount of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. .§ 2006.]
    2. Evidence <&wkey;76 — Failure of Party to Testify.
    In an action on a policy of fraternal benefit insurance by the beneficiary named therein, in which defendant alleged that the insured committed suicide, and it appeared that insured was killed by “pistol shot, self-inflicted,” and that plaintiff and insured, who was her husband, had had trouble, failure of plaintiff, who was present and witnessed the apparently suicidal act of insured, to testify and offer some explanation as to whether the shot was accidental or intentional warrants the inference that she refrained from testifying because she knew the truth would not help her case.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 96.]
    Appeal from District Court, Harrison County.
    Suit by Mrs. Florence Hair against the Knights of the Maccabees of the World. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for another trial.
    D. D. Aitken, of Flint, Mich., Cross & Rogers, of Waco, and M. Harold, of Marshall, for appellant. Jno. W. Scott, of Marshall, for appellee.
   HODGES, J.

The appellee filed this suit against the appellant to recover the sum of $2,000 upon a certificate of insurance issued upon the life of her husband, Samuel L. Hair. The appellant, defendant below, admitted the execution of a benefit certificate for the sum of $2,000 upon the life of Hair, but pleaded certain conditions in that certificate by which it was agreed that, should the insured die by his own hand, whether sane or insane at the time, the contract of insurance was to be void, and the beneficiary should receive only such amount as is provided by the laws of the association in force at the time of the death of the insured. It was also alleged that under the laws of the association the amount which could be recovered by the beneficiary in such an event was double the amount of premiums that had been paid by the insured. That sum, according to the answer of the appellant, amounted to $224, with $2.25 additional as interest, which was tendered in satisfaction of the plaintiff’s demand. In a trial before a jury a verdict was rendered for the full amount of the policy, $2,000. In this appeal the appellant asks that the case be reversed because of the insufficiency of the evidence to support that recovery.

The evidence showed that Samuel L. Hair died as the result of a pistol shot bn December 5, 1914, at the Elgin Hotel in the city of Marshall. It appears that this was the home of himself and wife at the time. The appellant introduced in evidence the proofs of death which had been furnished by the appel-lee under tlie terms of the policy. In answer to the question as to what was the immediate cause of death, the following is .given.: “Pistol shot, self-inflicted.” Attached to this statement is the affidavit of the appellee, in which she deposes and says that she is the person who made the foregoing answers, and that:

“I have carefully read the questions and answers therein, and understand the same. That each of said answers is full, complete and true, and made without evasion, concealment, or mental reservation to establish a claim for life benefits which may be due upon certificate No. 339,055 held by Samuel Ludwig Hair, deceased. * * * And in addition to the foregoing, I have caused to be attached a certified copy of the verdict of the coroner’s jury and inquest, with a copy of all evidence taken therein, and offer it as a part of required proofs and cause of death,”

As a part of the evidence taken at the inquest the appellant offered the affidavit of J. D. Ridgely, which is as follows:

“J. D. Ridgely, being sworn, says that on the evening of December 5, 1914, he was sitting in the lobby of the Elgin Hotel on North Boliver street in the city of Marshall at about 5 o’clock p. m. Mr. S. L. Hair and wife entered a room adjoining the lobby, and in a minute or two he heard a shot fired in the room, and. Mr. Hair and wife and a little boy immediately returned to the lobby through the door through which they had entered the room. Mr. Hair had a pistol in his hand. I aróse and said, ‘Mr. Hair, what is the matter with you?’ and he replied that he had said he would do it, and that he would do it, at the same time -raising the pistol with the muzzle toward his head, and fired and fell to the floor and expired immediately. And that he knows of no cause that caused him to take his own life. Signed, J. D. Ridgely, and sworn to.” *

J. W. Dixon, another witness, testified that he remembered the occasion of Hair’s death at the Elgin Hotel; that he went to the hotel about 6 o’clock that afternoon. The body of 1-Iair was still there when he arrived; was on a cot in the lobby. He heard Mrs. Hair make some statements regarding the cause of her husband’s death. He said:

“I heard her say — I don’t know whether she went through the lobby and went into her room, or Mr. Hair found her in there, or he was in the room;. and she said he went to fussing and quarreling with her, and she turned and went on back in the lobby and was not going to fuss with him, and by the time she got in the lobby the pistol fired; and I don’t ■ remember whether she said she saw him back there in the door or not, and she turned and sat down in the lobby again, and Mr. Hair came on in there with a pistol,- and he said something; don’t know whether she told me he said, ‘Do it,’ or, ‘Will .do it,’ or whether some one else heard it. I don’t know.”

There was other testimony tending to support the account-given" by Ridgely in his affidavit of the death of Hair.

The evidence further showed that the bullet which caused the death of Hair entered the head just above the right ear, and came out about the same distance above the ear on the opposite side.- There was testimony tending to show that Mr. and Mrs. -Hair had been having some domestic trouble,- and that this was the culmination of an unpleasant altercation. There was other testimony to the contrary, tending to show that their domestic relations were pleasant, and that there was no known cause for Hair’s taking his own life. Mrs. Hair, who was present at the time and an eyewitness to the death of her husband and was doubtless better able to testify as to the presence or absence of any motive for suicide, did not testify upon the trial, and there was‘no reason given as to why she did not.

It is unnecessary to give a more extended recapitulation of the testimony. Our conclusion is that this evidence is too unsatisfactory to support the verdict rendered. The failure of Mrs. Hair to testify and offer some explanation of an apparently suicidal act of her husband, when the deed was committed in her presence, is not without significance. She doubtless kpew better than any other witness what their domestic relations had been, whether there was any motive for taking his own life, and whether the shot was accidental or intentional. It is legitimate to infer that she refrained from testifying because she knew the truth would not help her cause. Mutual Life Ins. Co. v. Tillman, 84 Tex. 31, 19 S. W. 294; Bailey v. Hicks, 16 Tex. 222; Thompson v. Shannon, 9 Tex. 536; Collins v. U. B. F. & S. M. T., 192 S. W. 800, not yet officially published.

The judgment of the district court will therefore be reversed, and the cause remanded for another trial.
      CwoFor other cases' see same topic and KEY-NUMBER in all Key-Numb ere cl Digests and Indexes


text:
    CANYON POWER CO. v. GOBER.
    (No. 1117.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1917.
    Rehearing Denied March 7, 1917.)
    1. Damages <&wkey;159(l) — Pleading—Petition.
    Where plaintiff alleges that his wife, as the result of tripping over a wire maintained by defendant, sustained certain injuries which were permanent, and that she was unable to perform her household duties as before, and the’plaintiff and his wife had incurred indebtedness for medical treatment and medicine to the extent of $100, and there is a prayer that on final trial plaintiff have judgment to the sum of $2,500 the amount to which he is justly entitled by reason, of the premises, the fact that there is not a specific statement in the body of the petition of the amount of damages, except the sum of $100, does not limit the amount in controversy to- that sum; the statement in the prayer being sufficient as an allegation of damages, in the absence of exceptions.
    • [Ed. Note. — For other cases, see Damages, Cent. Dig. § 441.]
    2. Négligencíb -<&wkey;lll(3) — Actions — Pleading — Petition. •
    In an action for personal injuries, where the facts are so stated in the petition that the sequence between the alleged negligence- and the resultant accident clearly áppears as cause and effect, a general demurrer was properly overruled, though there was no direct statement that .the negligence alleged was the proximate cause of the accident.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig, § 183%.]
    3. Electricity <&wkey;19(6) — Actions—Question Eos Jury.
    Evidence that a' guy wire was maintained by defendant in a position where it would con-, stitute an obstruction across the most natural entrance to a residence on alighting from a conveyance is sufficient to authorize submission to the jury of the question of negligence in maintaining it in such position.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11.]
    4. Electricity &wkey;14(l) — Care Required — Effect of Franchise.
    The possession of a franchise by a power company, authorizing it to erect and maintain poles, fixtures, and supports on any and all streets, and to construct lines above and under ground, does not excuse it from the exercise. of ordinary care in the location and construction of its poles and wires, so as to prevent injury to others rightfully using the public places.
    [Ed. Note. — For other cases, see Electricity,' Cent. Dig. § 7.]
    5. Electricity <&wkey;19(6) — Actions — Question for Jury.
    In an action for personal injuries, evidence held to present a question for the jury whether defendant power company was negligent in failing to cover a guy wire with a plank, or otherwise, and to paint it white.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 11.]
    6. Appeal and Error <&wkey;1062(l) — Review-Harmless Error — Submission of Issues.
    Where the jury answered an issue whether plaintiff’s wife was guilty of negligence in the negative, any error in submitting the following issue as to whether, if the jury should answer the preceding question in the affirmative* such negligence was proximate cause of injury, which the jury also answered in the negative, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    Appeal from District Court, Randall County; Hugh L. Umphres, Judge.
    Action by U. S. Gober against the Canyon Power Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Ben H. Stone, of Amarillo, for appellant. Turner & Rollins, of Amarillo, and Flesher & Flesher, of Canyon, for appellee.
   BOYCE, J.

Suit was Brought by U. S. Gober, in the district court of Randall county, against appellant, Canyon Power Company, to recover damages for injuries sustained by plaintiff’s wife, caused by her tripping and falling over a guy wire, alleged to have been negligently placed and maintained by the appellant, in the parking between the street and sidewalk, in front of the residence of one E. Burrow, in' the town of Canyon, Tex. It was shown upon the trial that the residence of E. Burrow, in Canyon, Tex., in front of which the accident happened, was situated on the southeast corner of the block, fronting east; that a light pole was erected by the defendant near the intersection of the streets at the southeast corner of this block, and from the top of this pole a guy wire was extended northward and anchored,'in. the ground, in the parking between the- street and sidewalk, at a, point a few feet to the north of a point directly in front of the center of the residence. The entrance to the house was from the east, so that this guy wire passed over the entrance going direct from the street across the parking. At a point directly in front of the steps the guy wire was somewhat higher than the head, but came to the ground some feet north of such place, and on account of the location of a tree in the parking a very small space was left within which one might pass under the wire without touching it, if entrance were made from the street directly in front of the house. The guy wire was made up of a braid of small wires, being about one-quarter inch in diameter; and had no covering of any kind over it. The yard of the said Burrow was unfenced. Just after dark,' on the evening of the accident, Mrs. Gober was in an automobile, driven by Mr. Burrow, who stopped the car near the parking in front of his house, and just about opposite where the guy wire was anchored. Mrs. Gober alighted for the purpose of visiting with the Burrows, and in going across the parking toward the house tripped over the wire and fell, dislocating and breaking some of the bones in her hand and wrist.

The plaintiff alleged that his wife, as the result of tripping over said wire, sustained the injuries above described, from which she suffered great pain; that said injury is permanent, and that his said wife, on account thereof, had been unable'to-perform her household duties as before; and that such condition will continue in the future. In connection with these allegations plaintiff alleged that:

‘.‘Plaintiff and his wife have incurred indebtedness for medical treatment and medicine made necessary by said injury to the extent -of $100, all of which he has paid, or is obligated to pay, and will have to pay, for treatment for his said wife, made necessary as the direct and proximate result of the said negligence of the defendant.”

No specific allegation of the amount of damage is made in the body of the petition, except that just quoted; but the prayer of the petition immediately follows the description of the -injuries sustained, statement of consequent suffering, and impairment of health and ability to work, and said prayer ■contains this statement:

“That on final trial plaintiff have judgment for the sum of $2,500, the amount to which he is justly entitled by reason of the premises,” etc.

The appellant urges that, as the only specific''statement of the amount of damages as contained in the body of the petition fixes such amount at $100, and that the allegations of damage cannot be aided by the prayer, hence the petition shows on its face that the 'amount in controversy is only $100, and the district court was without jurisdiction. The case of Pecos & Northern Texas Railway Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, is relied on to support this' contention. In that case there were specific allegations in the body of the petition of stated items of damages, and the court held that the sum of these might not be reduced by the general prayer to bring the amount in controversy within the limited jurisdiction of the court in which the suit was filed. We do not think the decision applicable. In this case it is evident that the $100 mentioned in connection with the medical charges was intended to cover this item of damage only, and the pleader neglected to state in the body of the petition the amount of damage. sought to be recovered generally. The statement of damages claimed is, however, made as a statement of fact in the prayer. This statement, if made in the body of the petition, would, in the absence of exceptions, have been sufficient, and we think it would be a too technical view of the petition to disregard the statement simply because it appears in the prayer, rather than in the body, of the petition. This conclusion is supported by the following authorities: Hoggland v. Cothren, 25 Tex. 345; Railway Co. v. Culpepper, 19 Tex. Civ. App. 182, 46 S. W. 922; Poster v. Roseberry, 98 Tex. 138, 81 S. W. 521; National Bank v. Robinson, 124 S. W. 177.

The general demurrer to the petition was properly overruled. While there is no direct statement that the negligence alleged was the proximate cause of the resulting accident, the facts are so stated that the sequence between the alleged negligence and the resultant accident clearly appears as cause and effect, and it was not necessary for the petition to so state in express terms.

Under sufficient pleading to authorize their submission, the court submitted to the jury two special issues on negligence: One requiring a finding as to whether it was. negligence of the defendant to stretch the guy wire at the place and in the manner same was so stretched; and the other as to whether it was negligence “to fail to cover the guy wire with a plank or otherwise, and to paint the color thereof white.” To each of these issues the jury returned an affirmative answer. We think the verdict is supported by the- evidence. The appellant assigns error to the submission of the first issue, because there was no evidence that would warrant a finding of negligence ' on this issue. We are of the opinion that it was properly a question for the jury to decide as to whether the feet of the stretching of the guy wire itself in front of the entrance to the residence in such place as that any one going into the house from the street, across the parking, would likely come in contact with, it, was negligence. It was an obstruction across the most natural entrance to the house by those- going to it,, on alighting, from a conveyance of any character, and some such result as this accident might have beeh reasonably anticipated.

The defendant offered in evidence the franchise granted it from the city of Canyon, by which it was authorized to erect and maintain poles, fixtures, and supports on any and all streets, etc., and to construct lines above and underground, etc. It cannot be reasonably contended that the defendant, in the enjoyment of this privilege, would not be required to exercise ordinary care in the location and construction of its poles and wires, so as not to injure others rightfully using such public places. City of Ft. Worth v. Williams, 55 Tex. Civ. App. 289, 119 S. W. 137; Poumeroule v. Telegraph Co., 167 Mo. App. 533, 152 S. W. 114; Peters v. Telephone Co., 103 Ark. 564, 148 S. W. 273; Raines v. Telephone Co., 150 Ky. 670, 150 S. W. 830; Southern Telephone Co. v. Tabb, 52 Tex. Civ. App. 213, 114 S. W. 448; Bentley v. M. & K. Tel. Co., 142 Mo. App. 215, 125 S. W. 533; Telephone Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 9 L. R. A. (N. S.) 548.

The appellant contends that the submission of the second issue of negligence above referred to was erroneous, because the evidence conclusively shows that owing to the darkness plaintiff’s wife could not have seen the planking if it had been on the wire. It was shown that the accident happened after dark, and no moon was shining. The plaintiff and some of the other- witnesses testified, that they did not know whether they would have seen a board, painted white if the wire had been inclosed in such a casement. One of the defendant’s witnesses testified that- he had tried the experiment of looking for a white casement inclosing a guy wire at' night; that he could see it, if he knew it was there, and was looking for it, but did not know whether one would see it if not on the lookout. He testified further that he had seen guy wires in other places covered with casements. We do not think that this evidence establishes conclusively that Mrs. Gober would not have seen the white encasement at the time of the injury; besides, it is a matter of common knowledge and observation that a white object of some bulk is more readily seen in the dark than an inconspicuous wire, and from their common knowledge and experience the jury were about as well able to come to a conclusion on this matter as any witness who might have testified thereto.

The court submitted an issue, asking the jury whether Mrs. Gober, under the circumstances stated, was guilty of negligence, to which the jury answered in the negative. Following the submission of this issue the court submitted an issue as to whether, if the jury should answer the preceding question in the affirmative, such negligence was the proximate cause of the injury, to which the jury also returned a negative answer. .The sixth assignment complains of the action of the court in the manner of the submission of the latter issue, in connection with the issue of contributory negligence. In view of the finding of the jury that plaintiff was not guilty of negligence, any error with respect to submission of the latter issue became harmless.

What we have already said necessarily results in overruling the other assignments of error urged by the appellant.

The judgment is affirmed.
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text:
    MOORE et al. v. COMMISSIONERS’ COURT OF TITUS COUNTY.
    (No. 1749.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 1, 1917.
    Rehearing Denied March 8, 1917.)
    Elections &wkey;280 — Contests — Service of OTIGE*
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3151, 3078, requiring notice of election contests and service thereof on the county attorney, such notice and service are jurisdictional, and, not being for the personal benefit of the county attorney, may not be waived by him; the statutory mode of contesting the election being exclusive of all others.
    [Ed. Note. — Por other cases, see Elections, Cent. Dig. § 264.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Election contest by J. A. Moore and others against the Commissioners’ Court of Titus County. Judgment for defendants, and contestants appeal.
    Affirmed.
    S. P. Caldwell, of Austin, for appellants. Geo. M. Rolston and J. M. Burford, both of Mt. Pleasant, for appellees.
   LEVY, J.

The proceeding is to contest an election held in justice precinct No. 3 of Titus county for the- purpose of preventing the running at large of hogs, sheep, and goats in said precinct. The .court sustained a general demurrer to the petition, and the appeal is to review the ruling of the court In that respect.

The petition alleged that the county attorney had agreed that a notice of the contest need not be given to him by the contestants and had agreed to waive such notice and service thereof upon him. The petition does not undertake to allege that a written statement of the grounds of the contest had been served upon the county attorney, of the county. The statute requires the giving of notice of the contest (article 3151, Vernon’s Sayles’ Statutes), and requires that the county attorney in this character of proceeding “shall be served with notice and statement” (article 3078, Vernon’s Sayles’ Statutes). The giving and serving of the notice required by the statute is not for the benefit of the county attorney and peculiarly personal to him, who is merely a formal party to such proceeding. The giving and serving of the notice prescribed by the statute is the prerequisite to the jurisdiction of the district court. Cauthron v. Murphy, 61 Tex. Civ. App. 462, 130 S. W. 671. A specific mode of contesting an election having been prescribed by the statute, that particular mode alone can be resorted to; it is exclusive of every other mode. And this particular proceeding is not a contest as between two persons, so as to authorize and warrant the county attorney to waive a statutory procedure essentially involving jurisdiction of the district court.

It is believed the court did not err in sustaining the demurrer, and the judgment is affirmed.


text:
    QUANAH, A. & P. RY. CO. v. PRICE.
    (No. 1125.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1917.)
    1. Trial <&wkey;253(3) — Animals on Railroad Tracks — Instruction—JIgnoring Issues:..
    In an action for value of a horse killed on defendant railroad’s right of way, an instruction to find for defendant if jury should find that, the railway company allowed its fence to get in such a defective condition that it would not turn ordinary stock, and that plaintiffs horse entered the right of way, and, becoming-frightened at the approach of defendant’s cars, ran into and upon the bridge, and was thereby injured, was erroneous; as it did not require a finding that such acts were negligent.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 616.]
    2. Trial &wkey;s253(3) — Instructions—Province of Jury — Negligence.
    Whether certain facts constitute negligence is for the determination of the jury, except in exceptional cases, where a duty is imposed by statute, etc., and it is error for the court to instruct a finding for a party in an action based on negligence upon a mere finding of the existence of the act alleged as negligence, without a further finding on the part of the jury that such acts constitute negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 616.]
    3. Railroads <&wkey;411(10]4) — Animals on Tracks — Cause of Injury — Statute.
    Under Rev. St. art. 6603, providing that, unless a railway company fence its right of way, it shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways, recovery cannot be had unless the injuries result from actual contact with the running cars or locomotives of the railway company.
    [Ed. Note. — For other cases, see -Railroads, Cent. Dig. §§ 1427, 1428.]
    4. Railroads <&wkey;411(10%) — Animals on Tracks — Cause of Injury.
    While recovery might be had for injury to an animal on a railroad track where there is no collision with a running engine or car if the injury was the proximate result of the railroad’s negligence, recovery in such case would not be based on Rev. St. art. 6603, and the same rules would apply as in any other case of nonstatu-tory negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1427, 1428.]

      5. Railroads <&wkey;447(1) — Animals on Tracks — Actions — Instruction — Measure of Damages.
    The court should have submitted a charge on the measure of damages requiring the verdict of the jury to assess the amount.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1642, 1644.]
    •6. Railroads <&wkey;447(l) — Injury to Stock on Track — Instructions — Attorney’s
    Under Rev. St. art. 2178, allowing recovery of attorney’s fees in an action on a bona fide claim for stock killed, the court should re-huiré that the verdict determine the facts as to whether the attorney’s fees were recoverable •and what would be a reasonable amount.
    [Ed. Note. — For other cases, see Railroads, ■Cent. Dig. §§ 1642, 1644.]
    7. Railroads <&wkey;441(l) — Injury to Animals —Attorney’s Pees — Statutes—Proof.
    Under Rev. St. art. 2178, a plaintiff must offer evidence of facts authorizing recovery of attorney’s fees and as to what would be a reasonable attorney’s fee under the circumstances.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§-1575-1577, 1582, 1593-1595.]
    8. Evidence &wkey;18 — Judicial Notice — Reasonable Pee.
    The court and the jury do not judicially know what would be a reasonable attorney’s fee under Rev. St. art. 2178.
    [Ed. Note. — Por other cases, see Evidence, Cent Dig. § 22.]
    9. Railroads <&wkey;422 — Animals on Transactions — Contributory Negligence.
    Although plaintiff knew of the defective condition of the gates and fences to the defendant railroad’s right of way when he turned his horse out to graze, he could not be said to be negligent so as to be precluded from recovering if he would otherwise be entitled to recover damages.
    [Ed. Note. — Por. other cases, see Railroads, Cent. Dig. §§ 1512-1515.]
    10. Railroads <&wkey;270 — Animals on Tracks —Actions—Evidence—Burden of Proof.
    It would be presumed that all cars operated on defendant’s line of road were operated by it, and if defendant’s liability is predicated upon the acts of any one operating any such cars, the burden would be upon the defendant to show that such persons were operating the car without the consent of the defendant before it would be exonerated from liability for the acts of such parties.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 865.]
    Appeal from Cottle County Court; W. O. Jones, Judge.
    Action by J. H. Price against the Quanah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    D. E. Decker, of Quanah, and Hawkins & Sneed, of Paducah, for appellant. Arrington & Renfro, of Paducah, for appellee.
   BOYCE, J.

Suit was brought by appellant, Price, to recover of the Quanah, Acme & Pacific Railway Company the value of a horse, together with attorney’s fees for the prosecution of the suit, alleged to have been killed on the right of way of the defendant. This appeal is from a judgment of the county court of Cottle county for $125, the value of the horse, and $20 attorney’s fees.

The testimony tends to show that appellant let its right of way fence and a gate through the same get out of repair, and that plaintiff’s horse, with other animals, entered the right of way through the open gate, grazed down the track for some distance, and then ran as if frightened some distance along the track to a bridge, where some of the animals turned aside, and the plaintiff’s horse ran onto the bridge, breaking its leg, and falling therefrom, resulting in its death. This occurred in the nighttime, an¡l no witness was produced who saw the occurrence. It was shown that several motorcars passed over defendant’s track during the night, and that one of these stopped at the bridge, and that loud talking was heard from the party. The evidence did not show whether the horse was struck by a motorcar or not.

The court instructed the jury to find for the plaintiff if it should find that the railway company allowed its fence to get in a defective condition such as that it would not turn ordinary stock, and that plaintiff’s horse entered the right of way, and, becoming frightened at the approach of defendant’s cars, ran into and upon the bridge, and was thereby injured. It will be noted that this charge does not require a finding that such acts were negligent before authorizing a finding for plaintiff, and we think this was error.

Whether certain facts constitute negligence is for the determination of the jury, except in exceptional cases, where a duty is imposed by statute, etc., and it is error for the court to instruct a finding for a party in an action based on negligence upon a mere finding of the existence of the act alleged as negligence, without a further finding on the part of the jury that such act constitutes negligence. Michie’s Digest, vol. 13, p. 333 et seq.

Appellee contends that the case comes within the terms of article 6603, Revised Statutes, which provides that, unless a railway company fence its right of way, it “shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company in running over their respective railways.” It has been held that, unless the injuries result from actual contact with the running cars or locomotives of the railway company, recovery cannot be had under the statute; the reason for this being obvious from a reading of the statute itself. Railway Company v. Hughes, 68 Tex. 290, 4 S. W. 492; I. & G. N. Railway Co. v. Dixon, 49 Tex. Civ. App. 506, 109 S. W. 978; S. A. & A. P. Railway Co. v. Harrison, 146 S. W. 596; G., C. & S. P. Ry. Co. v. Benaist, 122 S. W. 587.

These cases recognize that, where there is no collision with a running engine or car, recovery might be had if the injury was the proximate result of some negligent act of the defendant, but, as stated by tbe Supreme Court in the case of I. & G. N. Ry. Co. v. Hughes, supra, “In such a ease the recovery would not be based on the statute,” and the same rules would apply as in any other case of nonstatutory negligence. The evidence tended very strongly to show that there was no actual contact between any car and the horse, and the court’s charge made no distinction as to liability in such cases. If it should be found upon another trial that the injury to the horse was caused by a collision with a moving car operated by the defendant, a recovery would be authorized upon the mere showing that the railway company allowed its gate or fence to get out of repair and the horse thus obtained ingress to the right of way; but, if the injury was the result of the animal running on the bridge and falling therefrom, without actual contact with the cars, then it should be submitted to the jury as a question of fact as to whether the acts relied upon by the plaintiff to justify recovery constituted negligence.

The court submitted to the jury a charge on the liability of the defendant, which did not contain any charge on the measure of damages nor require a finding of the jury assessing the damages. The jury returned a verdict “for the plaintiff.” The court on this verdict entered judgment for $125, the alleged value of the horse killed, and $20 attorney’s fees. The court should have submitted a charge on the measure of damages and required the verdict of the jury to have assessed the same, and should also have required that the verdict determine the facts as to whether the attorney’s fees were recoverable and what would be a reasonable amount.

The plaintiff before he would be entitled to recover attorney’s fees, would be required to offer evidence of the facts that would authorize recovery of attorney’s fees under the provision of article 2178 of the Revised Statutes, and should also offer some evidence as to what would be a reasonable attorney’s fee under the circumstances.

The court and the jury do not judicially know what would be a reasonable fee, and the statute does not fix this further than naming the maximum amount recoverable.

We do not think that the fact that plaintiff knew of the defective condition of the gates and fences to the right of way when he turned his horse out to graze could be said to be guilty of contributory negligence that would preclude him from recovering if he would otherwise be entitled to recover damages. Railway Go. v. Sproles, 47 Tex. Civ. App. 294, 105 S. W. 521; Railway Co. v. Hiekox, 103 S. W. 202; Railway Co. v. Attaway, 180 S. W. 1151.

It would be presumed that all cars operated on defendant’s line of road were operated by it, and if defendant’s liability is predicated upon the acts of any one operating any such cars, the burden would be upon the defendant to show that such persons were operating the car without the consent of the defendant before it would be exonerated from liability for the acts of such parties. Railway Co. v. Porter, 166 S. W. 37. We say this in the event an issue should be made on another trial as to any liability founded on ¿he acts of those operating the car in going to Paducah to attend the Masonic lodge meeting; the defendant alleging that such persons were acting without the knowledge or consent of the defendant in the use of its car.

Reversed and remanded.
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text:
    TEXARKANA TELEPHONE CO. v. BURGE et al.
    (No. 1730.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 1, 1917.
    Rehearing Denied Feb. 15, 1917.)
    1. Husband and Wife <§=>209(2) — Injury to Wife — Action by Husband.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1839, providing that the husband may sue for recovery of any separate property of the wife, he may sue» for personal injuries to her, recovery therefor being by Acts 34th Leg. c. 54, declared her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 767, 968, 973.]
    2. Telegraphs and Telephones <§=>15(3) — Obstruction of Highways — Injury to Traveler.
    Though a telephone company’s wire across a road was lowered by a third person so as to interfere with travel, the company was liable to a traveler injured thereby, it having negligently failed to remove it or remedy its condition in a reasonable time after notice, as was its duty.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 9.]
    3. Indemnity <^=13 (2) — Injuries to Third Persons — Acts of Independent Contractor-Liability.
    A telephone company, liable for injury to a traveler on a road from its wire being too low, may not recover over against the owner of a boat, in the moving of which the wire was lowered, the one moving it for him being an independent contractor; and this though the boat owner as part of the contract for moving agreed with the contractor to assume responsibility for any damage to the wires; this inuring only to the benefit of the contractor.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. § 31.]
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Action by C. J. Burge against tbe Texar-kana Telephone Company, one Krouse being impleaded. From an adverse judgment, defendant appeals.
    Affirmed.
    Mrs. Maud L. Burge, wife of appellee Burge, on the afternoon of September 21, 1915, was riding in her surrey on the Buchanan and Texarkana public road en route to her home 6 miles from Texarkana. About 3Yz miles from Texarkana the Sulphur pub-lie road intersects the Buchanan and Texar-kana public road. Appellant’s telephone line extended from ¡Texarkana along the two roads. At the point of intersection of the roads there is maintained a telephone pole on each side of the road, with a service wire extending from the top of one pole to the top of the other pole diagonally across the Buchanan and Texarkana public road, and about 2 inches underneath the service wire there is fastened to each pole a brace or guy wire which extends across the said public road. On the afternoon of the day in question this brace or guy wire had become slack, and was hanging low above and across the road, and caught below and under the canopy top of the surrey in which Mrs. Burge was driving, turning the surrey over and causing personal injuries to Mrs. Burge. The appellee O. J. Burge brings the suit for damages on account of the injuries sustained by his wife and for medical fees. The petition alleges that the appellant—
    “negligently ran a brace wire over said road from one of said poles to the other; that same was so low and slack that vehicles with tops or covers, or any other high load on any wagon or other vehicle, were in danger of being caught by said wire, and said public road [defendant] was, on account of the negligent manner in which it placed and maintained said wire near the ground, guilty of negligently obstructing said public roacl against the passage of any such vehicles which were in common use on and along said road.”
    Appellant demurred to the petition, denied any negligent construction and maintenance of the wire, by cross-plea impleaded appellee Krouse, alleging that the injuries sustained by the wife of plaintiff Burge were caused by his active negligence, and asked for judgment over and against him in the event plaintiff recovered against the defendant company. Appellee Krouse is the owner of a gasoline launch, and contracted with Virgil Roberts to haul the same on a wagon from Texar-kana to Sulphur river. Virgil Roberts agreed to move the boat from Texarakana to Sul-phur river, furnishing his own wagon, teams, and employés; and appellee Krouse, acting through his agent Ray, agreed to pay Virgil Roberts the sum of $20 for moving the boat. On redirect examination Virgil Roberts testified as follows:
    “Q. You finally agreed to move it by the day, and you agreed on $20. Now what was said with reference to wires? A. I told him I wouldn’t be responsible for any of the wires at all, any of the telephone wire, or any of the other wires, I wouldn’t be responsible for anything at all. He said he would have a man looking after the wires.”
    Appellee Krouse did not give any direction as to the manner, mode, or way that said boat was to be moved, and he did not exercise any direction over the moving of the boat. Ray was not an empioyé of Krouse in the moving of the boat. On the morning of September 21, 1915, the boat was loaded onto the wagon. The boat was about 1 feet and 10 inches high from bottom to top, and the wagon was 3 feet and 6 inches high from the ground .to the top of the bolsters. Around the top of the boat was an iron rim or railing about 2 inches high. When the wagon with the boat reached the intersection of the two public roads mentioned, the iron rim or railing on the front of the boat came in contact with and hung against the guy wire mentioned, extending above and across the road. The employés of Virgil Roberts got on top of the boat, and with an iron rod prized the guy wire loose from the boat, and then the boat was pulled underneath. This was before 12 o’clock p. m. The guy wire, before the boat came in contact with it, was about 12 feet and 11 inches high from the surface of the road. The guy wire was loosened and caused to sag by the boat’s coming in contact with it. About noon of that day Mrs. Rutledge passed the point in question, and saw the guy wire suspended across the road about 4 or 5 feet above the ground, and she stopped and telephoned, as she says, to the “trouble department” of appellant at its exchange in Texarkana that this wire was hanging down and in a dangerous condition. The appellant’s employés deny receiving any notice. The proof shows the appellant could have reached the place and remedied the hanging wire within 20 minutes from the time of the notice. About 5 o’clock p. m. the appellee’s wife came down the road in her surrey, and the wire caught below and under the canopy top of the surrey and turned the surrey over to the ground It was proven that the roads were public roads and used by vehicles carrying heavy and high loads. It was shown that the boat in evidence would compare in height with a wagon carrying four bales of cotton with a man sitting upon the cotton driving the wagon. The verdict of the jury was in favor of appellee Burge. In deference to the verdict of the jury, which is supported by evidence, we find that appellant was guilty of negligence, as pleaded, proximately causing the injury. The amount of damages is sustained by the evidence. The court peremptorily instruct a verdict in favor of appellee Krouse.
    R. P. ¡Dorough, of Texarkana, for appellant. T. N. Graham, Turner & Smitha, and Mahaffey, Keeney & Dalby, all of Texarkana, for appellees.
   LEVY, J.

(after stating the facts as above) The appellant contends that the husband may not sue to recover damages for personal injuries to his wife, because under the present law such damages are the separate property of the wife. Article 1839 (Vernon’s Say les’ Stat.) provides that:

“The husband may sue either alone or jointly with his wife for the recovery of any separate property of the wife; and, in case he fail or neglect so to do, she may, by the authority of the court, sue for such property in her own name.” :

The effect of this statute is to constitute the husband the legal agent of the wife in the particular purpose of suing for the recovers' of her separate property. And, the husband being by this statute constituted the agent of his wife, his acts as such particular agent, done in good faith, would be binding and conclusive on the wife. Cannon v. Hemp-hill, 7’Tex. 184. The allegations of the petition show it to have been a suit by the husband for recovery for personal injuries to the wife; and the decision of the issue in favor of the husband establishes, as a matter of law, the right of the wife. Por the law expressly provides that the recovery of compensation for personal injuries sustained by the wife shall be her separate property. Acts 1915, p. 103. Therefore it is believed that assignments 1 to 2, inclusive, should be overruled.

The fifth assignment of error complains of the refusal of the court to give a peremptory instruction in favor of appellant, upon the ground that the wire which caused the injury was torn from its fastenings and left loose or sagging by a third person. It may be assumed from the evidence that Virgil Roberts caused to be unfastened and left loose the guy wire extending above and across the road, in order to admit the passage thereunder of the boat being by him transported along the road. But the act of that person would not, in the evidence of the case, relieve appellant, as a matter of law, of any liability to appellee’s wife. Por from the evidence the jury was authorized to find as a fact that appellant had notice of the fact of the wire’s obstructing the passage of the road, and did not remove or remedy the condition of the wire within a reasonable time after notice. And the appellant owed appellee’s wife the duty to use reasonable care in removing the wire or remedying its condition, involving the safety of the highway, caused by third persons. 4 Thompson on Neg. § 4264. It, therefore, was not error to submit the case to a jury for a finding of whether or not the negligence of appellant, in failing to remove or remedy the condition of the wire after notice, was the proximate cause of injury.

The court’s charge authorized a recovery in favor of appellee Burge upon the finding by the jury that the 'appellant strung the wire, or permitted it to be, across the road so near to the.surface of the road as to incommode the public using the road, and that appellant had sufficient notice of the condition of the wire before the injury, and failed to use ordinary care to remedy the condition of the wire before the injury after notice. It is believed there was no error in the instruction. The petition predicated liability against the appellant on its negligence in having the wire “so low and slack that vehicles with covers or tops * * * were in danger of being caught by said wire” and in placing or maintaining “the said wire so near the ground as to be guilty of negligently obstructing said public road against the pas- . sage of any such vehicles which were in common use along said road.” Obstructions of the public road of the character averred are invasions of the right of the public to the use of the public road, and may justify a recovery for injuries proximately resulting therefrom. And if, in the facts, appellant was required to have notice of the obstruction for a sufficient length of time before the injury to have cured the defect and prevent the injury in order to render it liable to ap-pellee’s wife, the court properly applied that rule, and made appellant’s liability to be dependent thereon. Appellant may not predicate injury on the charge, and the assignments of error in respect to the charge are overruled.

By the tenth assignment of error it is contended that the court erred in peremptorily instructing a verdict in favor of appellee Krouse. According to the evidence', Virgil Roberts and his employes were the persons who caused the wire to be lowered, and they were not the employes of appellee Krouse. Virgil Roberts was, in legal effect, an independent contractor respecting the hauling of the boat. And if liability may be predicated against Mr. Krouse for the' agreement of his agent Ray with Virgil Roberts, as a part of the contract to haul the boat, to assume for Roberts responsibility for damage to telephone wires, it would arise only in favor of Virgil Roberts in virtue of such contract of indemnity if Virgil Roberts were sued for the damage. It is therefore believed that appellant may not predicate liability for tort against appellee Krouse, and consequently the court did not err in giving the peremptory instruction.

Judgment is affirmed.
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