author: RASBURY, J.

text:
    ARCHENHOLD et al. v. BRANCH et al.
    (No. 7688.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1917.
    Rehearing Denied March 31, 1917.)
    1. Vendor and Purchaser <&wkey;266(8) — Vendor’s Lien — Waiver—Other Security.
    The vendor of lands who takes independent security for the purchase price waives his implied hen, unless it appears that he relied thereon.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 735-747.]
    2. Vendor and Purchaser <&wkey;266C8) — Vendor’s Lien — Waiver—Recital in Deed.
    A vendor who took other security for the purchase-money notes did not thereby waive his vendor’s lien, where he expressly retained such lien in the deed of conveyance.
    [Ed. Note.r-For other.cases, see Vendor and Purchaser, Cent. Dig. §§ 735-747.]
    3. Vendor! and Purchaser <&wkey;253 — Vendor’s Lien — Recitals in Deed.
    Where the recitals in the deed as to consideration were ambiguous as to whether a vendor’s lien was retained for the purchase-money notes referred to therein, one of which was secured by mortgage on other lands, but the deed in the proper place expressly retained the vendor’s lien, that express provision will be given effect, notwithstanding the ambiguity in the recitals.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 637-640.]
    4. Vendor and Purchaser <&wkey;266(3) — 'VENDOR’S Lien — Transfer — Quitclaim of Land.
    Where the holder of two vendor’s lien notes transferred one of them by an instrument stating that he quitclaimed to the transferee all his light, title, and interest in the lands, such transfer of the permanent title, while it bars the right to rescind the contract and recover the lands, does not bar the vendor’s right, subject to the transferee’s right to recover the land, to foreclose the lien of the other note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 716, 717.]
    5. Vendor and Purchaser (&wkey;266(10) — Vendor’s Lien — Transfer—Lien of Note Not Transferred.
    ' A statement in that transfer that the lien-holder had granted, bargained, sold, conveyed, and assigned his lien to the transferee does not necessarily indicate that the lien for the note not transferred was released, and will not be given that construction, but only operates to give the transferee a vendor’s lien prior to the lien of the transferor for the note retained by him, since the parties were' dealing with the transfer of the lien, not its surrender, and it will not be presumed that they intended to release the security for the second note.
    ' [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 688.]
    6. Vendor and Purchaser <&wkey;257 — Vendor’s Lien — Duration of Lien.
    A vendor’s lien created by an express reservation exists as long as the debt it secures, unless it is discharged by some valid agreement between the parties or by payment of the debt.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 654.]
    7. Vendor and Purchaser <&wkey;258 — Vendor’s Lien — Series of Notes.
    When a vendor’s lien is expressly reserved against land to secure the payment of a series of notes, the lien secures all of the notes co-or-dinately, and none are entitled to priority as between assignees.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 655-657.]
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Suit by W. M. Branch and others against S. and ¡M. Arehenhold and others to foreclose a vendor’s lien. Judgment for the plaintiffs, and defendants appeal.
    Affirmed.
    D. A. Kelley, of Waco, -and Boyd & Bell, of Teague, for appellants.
   RASBURY, J.

Appellees instituted this suit upon a note for $534, executed by James W. and Bessie L. Boyd, alleged to be secured by the vendor’s contract lien upon 106% acres of land in Freestone county. The suit was against appellants G-. W. Laster and wife, who claimed ownership of the land, and appellants S. and M. Arehenhold, mortgagees of Laster. Prayer was for foreclosure of the ¡ lien and sale of the land in satisfaction of the principal and interest of the note against appellants. Appellants Laster and wife defended on the ground that they were innocent purchasers of the land without notice of appellees’ claim. Appellants the Archenholds alleged that appellees sold the land to one R. C. Vance, from whom the appellant Laster purchased, and that their claim under their mortgage was prior and superior to that asserted by appellees for the reason that they had neither actual nor constructive notice of appellees’ lien. Further, that appellees had sold, assigned, and conveyed to one E. W. Kay ser, as security for another note executed by said Vance in payment of the land, both their contract lien and their interest in the land, and had also taken other security for the payment of the note sued upon, all of which constituted a waiver or surrender of the lien upon the 106% acres of land, as security for the note sued upon. There was trial without jury, resulting, as relates to appellants, in a foreclosure of the vendor’s contract lien against the land in favor of appel-lees and its sale in satisfaction of the debt, any balance, after such satisfaction, to be applied upon the debt of appellants the Arch-enholds against the appellant the Lasters. The Boyds, makers of the note, being nonresidents, were cited by publication, and hence no personal judgment was entered against them.

The facts, save in relation to one point, to which we will later advert, are undisputed, and those essential to a disposition of the issues presented on appeal are in substance these: On May 5, 1910, appellees, being the owners of 106% adres of land in Freestone county, conveyed same to one R. O. Vance, the deed to Vance, omitting formalities, the description of the land conveyed, signatures, and the acknowledgments of the parties, is as follows:

“Know all men by these presents: That James L. Branch, W. N. Branch and O. M. Branch, of the county of El Paso, state of Texas, for and in consideration of the sum of eight hundred fifty three and 30/100 dollars paid and secured to be paid by two certain promissory vendor’s lien notes as follows: The sum of one for five hundred thirty-four and No/100 dollars ; one for three hundred nineteen and 30/100 cash, to us in hand paid, the receipt of which is hereby acknowledged, and the further sum of note for five hundred thirty-four and No/100 secured by southwest quarter of section twenty-three (23), township eight (8), range forty-one (41) west of sixth P. M., containing one hundred acres more or less, according to government survey located in Sherman county and state of Kansas. Note for three hundred nineteen and 30/100 secured by vendor lien on one hundred and six and % acres of land located in Freestone county, Texas, as follows: * * * Note for $534.00 to bear interest from date at the rate of 7 per cent, payable annually. Note for $319.30 to bear interest at the rate of 8 per cent, from date until paid, interest payable annually. Have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said R. C. Yance of the county of El Paso, and state of Texas, all that certain tract, parcel or lot of land situated in Freestone county, Texas, and more particularly described as follows: One hundred six and % acres. * * * To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging unto the said R. 0. Yance, his heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators, to warrant and forever defend all and singular the said premises unto the said R. O. Vance, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereofr But it is expressly agreed and stipulated that the vendor’s lien is retained against the above-described property, premises and improvements, until the .above-described notes, and all interest thereon, are fully paid according to their face and tenor, effect and reading when this deed shall become absolute. Witness our hands at El Paso, Texas, this 5th day of May, A. D. 1910.”

Thereafter, on September 19, 1911, as indicated by the acknowledgment, appellees transferred in writing to one B. W. Kayser the note for $319.30. The transfer, after reciting the execution and date of the note, the rate of interest, that it was in payment of part of the purchase money of the 106% acres of land, and that the vendor’s lien was retained to secure payment of same, recites:

“Now, therefore, * * * we, the said J. L., W. M. and O. M. Branch, for a valuable consideration, have assigned, transferred and delivered said note to E. W. Kayser, and in consideration of the premises * * * have bargained, sold and conveyed, assigned and set over to the said E. W. Kayser our lien on said land, and have and do hereby bargain, sell and quitclaim all our right, title, interest, estate, claim and demand, both legal and equitable, in and to said land and every part thereof,” etc.

After such transfer and on November 16, 1911, Yance, in consideration of $1,275 cash, conveyed the 106% acres of land to appellants the Lasters. Subsequently on July 8, 1912, some one, the record does not disclose who, paid the note for $319.30 so transferred to Kayser; Kayser at the time executing and acknowledging a formal release of the note, lien, and all right, title, and interest in the property to Vance. Thereafter, on December 18, 1914, appellants the Lasters executed to appellants the Arehenholds a mortgage or deed in trust upon the 106% acres to secure payment of an indebtedness for $5,500. The note for $534 described in the deed from ap-pellees to Vance as part of the consideration thereof is dated January 10, 1910, is due January 10, 1914, signed by James W. and Bessie Boyd, secured by an unrecorded mortgage on lands in Kansas, and which was known to be unrecorded by appellees at the time they deeded the land to Vance. Appellants introduced testimony tending to show that appel-lees intended to rely alone upon the unrecorded mortgage on land in Sherman county, Kan., above mentioned as security for the $534 note, and appellees introduced testimony tending to show that they did not and never did intend to rely thereon. The court found there was no such intention, and that appellees did not waive any security resulting from the deed to Vance, and the court’s finding is amply sustained by the testimony. The several instruments affecting the 106% acres of land were duly recorded in Freestone county in the order of their execution. This suit was commenced July 7, 1915.

Appellants’ first contention is that the deed fom appellees to Vance discloses that appellees accepted independent security for the payment of the $534 note, which in law resulted in a waiver of the contract vendor’s lien on the 108% acres conveyed. It is the general rule that the vendor of lands who takes independent and distinct security therefor waives the implied lien of the vendor, unless it appears that he relied as well upon such lien. Cresap v. Manor, 63 Tex. 485. The facts in case cited were that the vendee refused to purchase the land if it was to be incumbered with the lien, but offered and the vendor accepted independent and distinct security in payment of the land, and conveyed same in consideration thereof without reciting that he did or did not reserve the lien. Upon such state of facts it was ruled that the legal presumption arose that the implied vendor’s lien.had been waived, and that it was the duty of the vendor to rebut such presumption by appropriate evidence.

In the instant case, however, the facts are quite dissimilar, for in that portion of the deed where it is proper and usual to make reservations concerning the title to lands the vendor and vendee expressly agree that the vendor’s lien is retained to secure payment of both notes. Such provision is the ordinary method of expressly contracting that the lien shall be retained and has that effect. However, appellants depend upon the language used in the premises of the deed or that part which describes and recites the consideration paid for the land to show waiver. Such portion of the deed does use awkward language, as will be seen by examination. But placing upon the language used its ordinary meaning, we think it quite clear that it was the intention of the parties to say, and that the effect of the language is to say, that the total consideration to be paid for the land was $853.30, evidenced by two notes, one for $534, and one for $319.30. It is also true that it is said in the same place that the $534 note is secured by a lien on Kansas lands, and that the note for $319.30 is secured by lien on the land conveyed. The most that can be deduced from such language is that it is probably ambiguous and would warrant the introduction of parol testimony to show the intention of the parties. That was done, and the finding upon the evidence was that there was no intention to waive the lien on the land conveyed and accept in lieu thereof the Kansas lands. However, we conclude that regardless of such finding that the express lien was retained in that part of the deed where it should be retained and had that effect, regardless of the ambiguity in that part describing the character of the consideration.

It is next urged in effect that the recitations of the transfer by appellees to Kayser of the note for $319.30 disclose a surrender, waiver, or loss of the vendor’s lien originally retained as security for said $534 note. The effect of said transfer is, in our opinion, threefold. First, it transfers the note. Second, it assigns to Kayser appellees’ lien on the land conveyed to Vance. Third, it conveys to Kayser the legal or paramount title to the land. Considering the provisions of the transfer in inverse order, the effect of the conveyance of the paramount title to Kayser was to give Kayser priority in the payment of his note over the one retained by appellees. This results for the reason that appellees had two remedies against Vance, one being to rescind the contract to convey and recover the land, the other to enforce the contract and foreclose the lien expressly retained in the deed and sell the land in satisfaction of his debt. When appellees conveyed the legal or paramount title to the land to Kayser their right to recover the land was lost, but their right to foreclose the contract lien against Vance was unaffected. Loan & Trust Co. v. Beckley, 93 Tex. 267, 54 S. W. 1027. To be sure Kayser could, if it had become necessary in order to protect his rights, have defeated appellees’ lien by suit to recover the land, but such condition never arose, since the note held by Kayser was paid and the respective rights of Kayser and appellees under said transfer arp not involved here, and cannot be of any controlling importance in this proceeding. Appellants’ and appellees’ rights depend upon appellees’ right to enforce, not the paramount title, but the express vendor’s lien.

But it is further urged, conceding that the transfer of the legal or paramount title did not of itself waive the lien, that the language used in transferring the lien did have that effect or did have the effect of transferring all of the lien to Kayser, and was hence a surrender absolute thereof. The language employed in transferring the lien is that appellees “have bargained, sold and conveyed, assigned and set over to the said E. W. Kayser our lien on said land.” In connection with the issue thus raised it is said generally that:

“A lien * * * created by an express reservation exists as long as the debt * * * which it secures, unless it be discharged by some valid agreement between the parties * * * ” and that when it “is once created by an express valid agreement, the land is not to be disin-eumbered save by payment of the debt or a contract for the release or discharge of the incum-brance.” Wilcox v. National Bank, 93 Tex. 322, 55 S. W. 317.

The note for $534 was not paid. The inquiry then is, Does the language employed in the transfer of the lien, as distinguished from that portion which conveys the legal or paramount title, constitute in law a release or discharge of the lien so as to leave the note for $534 unsecured? I-Iaving in mind that the effect of the deed originally was to secure both notes pro tanto, and having in mind as well the transaction between appel-lees and Kayser, and its purpose, we conclude that the transfer fails to evidence any intention on the part of either to surrender or waive, as between appellees and Vance, or his vendee, the lien as to the $534 note. Appellees and Kayser were not dealing with that subject, but solely with the subject of the note about to be passed to Kayser. Such being true, it is correct to say that they had no intention to deal with such other subject, unless it can be said that what they actually did resulted as matter of law in accomplishing that which they did not intend. This we think is not the result of the language used.

When appellees transferred their lien on the land the most comprehensive meaning of the language so used would be that they passed all the lien they had to secure the note transferred by the same instrument, for it is well settled that when the vendor’s lien is reserved expressly against land to secure the payment of a series of notes, such lien secures all of the series co-ordinately, and none of them are entitled to priority as between assignees. Douglass v. Blount, 22 Tex. Civ. App. 493, 55 S. W. 526. Incidentally, there seems to be some uncertainty about the rule as between assignors and assignees. Douglass v. Blount, 93 Tex. 499, 56 S. W. 334. Illuminative of what we are asserting it is said in Christoff v. Chesley, 11 Tex. Civ. App. 122, 32 S. W. 355, that where one parts with a portion of the debt evidencing the purchase price of land and conveys his interest in the land, he does not part with the lien, for the reason that the vendor’s lien is a creature of the law, and gives a lien “upon the whole land, for every dollar of the purchase money, and that lien adheres, pro tanto, to every part of the price of the land.” It thus cannot be presumed, much less ruled, that the parties intended to and did that which the law presumes they did not do in the absence of express agreement. It is quite clear that the parties were dealing solely as we have said with the matter of transferring the lien, not discharging, releasing, or waiving it; and if it be law, as we conclude it is, that the lien secured both notes co-ordinately, then in the absence of some express declaration evidencing a different intention it must be presumed that the parties had that rule in mind. Such a declaration is not contained in the transfer we are discussing. Not even a remote reference is made to the release, surrender, or waiver of the lien. Such being the case, and the deed from appellees to Vance retaining expressly the vendor’s lien, and that lien as matter of law co-ordinately securing both notes, and there being in the transfer no express or implied release of the lien, but at most only the implication of an intention, arising also at law, to prefer the assigned note in the security, appellants the Archenholds must be held to have taken their subsequent mortgage with notice thereof, and appellants the Lasters to have so purchased the land, and hence in both instances subject thereto.

For the reasons indicated, the judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    MASTERSON et al. v. PANHANDLE & S. F. RY. CO. et al.
    (No. 1136.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.)
    Municipal Corporations <&wkey;803(l) — Injury prom Street Defects — Contributory Negligence — Care Required.
    Where plaintiff drove along a dim road near defendant’s tracks instead of one well traveled, which would have equally served her purpose, and, failing to watch the road, was thrown out by the buggy hitting a steel boundary post plainly visible and four feet from the roadway, a finding of contributory negligence held justified.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1673J
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Suit by Mrs. T. C. Masterson and others against the Panhandle & Santa Fé Railway Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Y. W. Holmes and W. W. Kirk, both of Plainview, for appellants. Madden, Trulove, Ryburn & Pipkin, of Amarillo, for appellees.
   HALL, J.

Appellants, sued for personal injuries to Mrs. Masterson, alleging that defendants had placed in a zigzag course at the corners of the lots included in its property along each side of its right of way for more than a mile entirely through the town of Hale Center certain posts, made of steel rails, which stood above the ground 2 or 3 feet; that practically all that part of the town of Hale Center is level plains land and unin-closed ; that one of said steel posts was placed too near a road commonly used by the public; and that while Mrs. Masterson was driving in her buggy, traveling such road, an axle came in contact with said steel post, and she was thrown out of the buggy and injured. The special answer of the defendant railway company is as follows:

“For further answer herein and by way of special answer, the defendants say that the plaintiff was herself negligent, and her own negligence was the intervening and proximate cause of any injury which she may have sustained, if in fact she sustained any injuries, in that she was at the time and just prior to said accident driving her horse in a careless manner, and not watching the horse or road, or paying any attention to objects along the road, but had her attention directed away from said horse and road, and her own carelessness and negligence in this respect became and was a contributing cause to such injury as she may have received, without which said accident or injury would not have occurred. Plaintiff Mrs. Mas-terson was further negligent in traveling said road with knowledge that said post was located as it was, and that it was dangerous to travel said road, if in fact it was dangerous as alleged, and her own negligence in this respect was the proximate cause of her injuries.”

It appears that the town of Hale Center is plotted with streets running due east and west, and north and south. Appellee’s line of railway enters the town plot near its northeastern comer, and runs in a southwesterly direction through the town. The agreement under which the company acquired its right of way through the town specifies that when the right of way shall include any portion of any lot that said company shall have the entire lot, resulting in the lines of its property running in a zigzag course on each side of the right of way. In order to mark the lines of its property the company set at the outside corners of the several lots acquired under this agreement posts cut from common steel rails, and painted the posts white. Mrs. Masterson resided a little north of west of the place of the accident and beyond the business section of the town from the railroad. On the day in question she intended to visit at the home of a Mr. Cagle, who lived southeast of the place of the accident. Appellee’s depot was situated near where the accident occurred. Mrs. Masterson was driving a gentle buggy mare, with a colt about four months of age following. She crossed the railroad on a street northeast of the depot, and after driving far enough east to pass the line of posts started in a southwesterly direction, parallel with the railroad track. The testimony shows that the steel posts were something near 20 inches high, or high enough to catch the axle of a buggy if the driver should attempt to drive over them. The record shows that there were three crossings inside the town plot on streets running east and west — the first located north of the section house a fourth of the way down the railroad from the northeast corner of the town; the second being between the section house and the depot, and one block north of the depot; and the third crossing the track three blocks south of the depot. It appears that that part of the town lying southeast of the depot ajad between the right of way and Cagle’s house is open, unfenced prairie land, except an orchard occupying a part of a block lying between the Cagle home and the depot, and that vehicles ¿ould have been and were frequently driven at liberty over any portion of this section of the town. It appears that the crossing north of the depot, and the one which was used by Mrs. Master-son on this occasion, was the best of the three crossings, and the one most commonly used. Mrs. Masterson testified in substance that she had lived in Hale Center about 2% years; that the day before Thanksgiving, and'about 4 or 5 o’clock in the afternoon, while going in her buggy to Jim Cagle’s, who lived oh the east side of the railroad, the accident occurred ; that she was driving a perfectly gentle mare — one that was easily controlled; that the mare’s four months old colt was follow-’ ing the buggy ; that she crossed the railroad at the first crossing north of the depot, and passed down the road towards Cagle’s; that the first she knew, at the time of the accident, was that she felt herself going head-foremost over the left; that she did not know where the railroad crossing south of the depot was located; that she had never crossed it and did not remember of having heard that there was one down there; that she had never been to Cagle’s house before; that though she had been in that neighborhood visiting the Yates house, and had traveled the same road in going to his house that she was traveling in trying to reach Cagle’s; that she had been in that part of the town several times before the accident, and always traveled the same road, and had seen the posts which stood up about 30 inches, and were painted white; that at the time of the accident she knew the posts were scattered all up and down the railroad track, and had driven before right where the accident occurred; that she had not thought of its being dangerous; that she had a gentle mare, and always tried to do careful driving.

“Q. If you had considered it dangerous would you have thought so at the time you were driving along there? A. Yes, sir; but I did not realize that it was dangerous because I had a gentle horse, and I always tried to keep in the road, and had never had any trouble. Q. At this time, if you had thought it was dangerous you would have gone further out from the road, would you not? A. Well, I was driving carefully, and not giving special attention as to whether I was going to get hurt; that is, it never entered my mind that I was going to get hurt.”

In this connection, she stated that she always watched the road and watched out for anything that might break the buggy or hurt herself, but as to watching the post or thinking about it being dangerous, she had not done that. She was then asked about watching for the post at this particular time when the horse and buggy left the road. She answered:

“I hardly realized she was gone out. She never gets frightened, and she’ did it so easily I didn’t notice it; that when the mare did it I was watching her and the-colt as best I could; that I was not looking behind; I was trying to watch the horse and the colt at the same time. Q. Did the horse turn immediately out at right angles? A. I didn’t notice it; she just did it so gently and easily I didn’t notice it, and I did not realize she was out.”

The witness further stated that the mare had to get out of the road about .2% feet to hit the post; that she did not remember seeing the post before in driving there or she could have avoided it; that she was watching the colt and the mare at the same time, and did not realize but what she was in the road, and that she was trying to watch the mare and the road and the colt at the same time.

“Q. Do you remember whether or not you were looking back at the colt? A. It was not back; it was before me going towards some horses that were there, and I thought the colt was going to them, and I thought that it would get hurt, and I called the colt several times; was trying to watch the mare at the same time; that at the time of the accident I was going from the north crossing down toward the south crossing — down toward the old orchard, and at the time of the accident was just a little south of the depot — out from the depot on the right of way line; that while I was driving south just immediately before the accident, the colt was going diagonally from me toward these horses, a little southwest from me, and I could not say just how far the colt was ahead of me; it was just far enough that I could readily see it and at the same time try to watch the mare. Q. How far was .he out to one side of the dirt road? A. It seems like it was pretty near the crossing, but I would not be positive about it, but he had gone far enough in that direction to make me anxious. I would judge I was traveling along about 100 or 150 feet from the right of way; I would not say how near the colt was to the railroad, but it seemed to be getting further fro-m the road than it was from the track, and was quite a ways from me, going toward the horses; that when the colt started off that way I was watching him and watching the buggy, and it kept getting further and further from me. It was not at an angle so that I had to turn my head to see it. It was further in front where I could turn my eyes from the colt to the mare -by just turning my head a little. I did not see the post until I struck it; I knew the posts were there, but did not see it; that some are all over to one side, and other are close in to the track. The road was not rough at the place where I was hurt. A. You had noticed that open place over there east of the railroad, had you not? A. Well, I have been down there several times; I used the road only when I go, and what is immediately around the road or immediately in my way is what I notice most. The mare I was driving is perfectly gentle; easily stopped and guided. Q. And yet it got out of the road you were traveling on that occasion, just trotting along? A. I would not consider the way she got out as at all unruly, only she wanted to follow her colt. As I saw it she was following her colt. She was not at all wild or flighty when I fell out. No one was with me. I was sitting in the seat, it being an ordinary one-seated buggy. It was the front wheel on the right side which struck the post. I was sitting mostly on the right-hand side, but fell out on the left; just fell over sideways. I realized that I was falling, and seemed to strike the wheel with my left side. I went headforemost. The horse broke loose from the buggy. I have no idea how long I lay on the ground. It is not a fact that when the accident occurred I was looking behind me. I never told any one that I was looking behind at that time.”

Mrs. Oas'sie Bonner testified that she saw Mrs. Masterson after she came in. She bathed her face, and said that she was hurt, being thrown out of the buggy across the wheel; that she was driving and the colt was following, and she looked back to see about the colt to see if it was coming on, and the mare ran across the stake, and threw her out of the buggy. Several witnesses testified with reference to the distance between the road and the post in question, placing it at various distances between 4 and 9 feet. Dr. Underwood testified that he was at the depot when Mrs. Masterson was hurt, and that she came over to the platform from the scene of the accident, and he heard her talking to several parties at the depot, and that she said in her conversation that she was looking back at the colt or something when, she ran into the post. The testimony is voluminous and conflicting in some minor details, but the foregoing is sufficient for the purposes of this opinion.

The second issue submitted to the jury is as follows:

“Was the placing or maintaining of said post or T-rail at the point the proof shows that same was placed, under all the facts and circumstances in evidence, negligence on the part of either defendant, as the term ‘negligence’ has hereinbefore been defined? Unless you find from all the facts and circumstances that one of the defendants was guilty of negligence under issue No. 2, you need not answer any of the following issues.”

The jury answered this as follows:

“Defendant was guilty of negligence as described in issue No. 2.”

Issue No. 4 is as follows:

“Was the plaintiff, at the time of her injury, if any, guilty of contributory negligence, as that term has been defined here? If you should find that plaintiff was guilty of contributory negligence at the" time of her said negligence, if any, then you will not answer any of the following issues.”

The jury answered issue No. 4 as follows:

“We find that plaintiff was guilty of contributory negligence as described in issue No. 4, and therefore find that the defendant is not guilty for damages.”

Based upon these findings, the court entered a judgment for the defendants.

The only assignment of error presented is that the verdict of the jury, finding that plaintiff Mrs. Masterson was guilty of contributory negligence, is contrary to the evidence, and not supported by the evidence. This assignment presents only a question of fact. The issues were submitted to the jury by a fair charge, of which appellant makes no complaint. There were several different ways in which appellant could have reached the Cagle home. She selected the dim road, running parallel with the railroad track, and the evidence of her negligence in driving along that road is sufficient to sustain the finding of the jury against her.

The case seems to have been thoroughly developed by the evidence from a great number of witnesses, and we believe the verdict and judgment should stand. Under the recent case of Marshal & East Texas Ry. Co. v. Petty (Sup.) 180 S. W. 105, we think if a judgment had been rendered for appellant it should have been set aside by the trial court. There is no question but what appellant could have seen the posts if she had been using a reasonable amount of care. The post which caused the- accident was not nearer than four feet to the road along which she was driving. That the mare left the road without her knowledge is evidence of the fact that her attention was directed toward the colt. In undertaking to drive under such conditions we think she was guilty, as found by the jury. St. L. & S. W. Ry. Co. v. Samuels, 103 Tex. 54, 123 S. W. 121; Adams v. G. H. & S. A. Ry. Co., 164 S. W. 853; T. & N. O. Railway Co. v. McLeod, 62 Tex. Civ. App. 270, 131 S. W. 311; T. & N. O. R. Co. v. Brouillette, 59 Tex. Civ. App. 337, 126 S. W. 287.

The judgment is affirmed.
      ®s»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    COBB v. GARLINGTON.
    (No. 8519.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 3, 1917.)
    1. Libel and Slandee <&wkey;34 — “Peivileged Communication’ ’ — Definition.
    A “privileged communication” is one fairly made by a person in the discharge of some private or public duty,' legal or moral, or in the conduct of his own affairs,’ in matters where his interest is concerned (citing- Words and Phrases, Privileged Communication).
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 113.]
    2. Libel and Slandee <S=o41 — Peivileged Communications.
    Communications not absolutely privileged may be conditionally or qualifiedly so and may be fair reports of the proceedings of courts and legislative bodies, or a communication in good faith in the performance of a duty, to another to whom defendant owes a duty, or a communication by one having an interest in the subject to one having a corresponding interest.
    [Ed. Note.- — For other cases, see Libel and Slander,- Cent. Dig. §§ 127-129.]
    3. Libel and Slandee <&wkey;101(l) — Peivileg-ed Communication — Malice — Bueden of Peo of.
    As a privileged communication is one made on an occasion and under circumstances that rebut the prima facie inference of malice arising from the publication of matter prejudicial to the character or reputation of the plaintiff, the plaintiff in a libel suit has the burden of proving malice in fact.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 273, 277, 278.]
    4. Libel and Slandee <&wkey;123(6) — Peivileg-ed Communication — Question foe Juey.
    In a libel case ,based on an alleged privileged communication, although plaintiff has the burden of proof of malice, he has the right to submit the alleged libel itself to the jury as evidence of malice on its face, and on the question whether the author or publisher has exceeded his privilege, or had used the occasion to indulge his malice, and not in good faith to perform a duty or make a communication useful and beneficial to others.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 363.]
    5. Libel and Slandee <&wkey;5, 51(1) — Peiv-ileged Communications — “Malice.”
    “Malice,” as used in connection with privileged communications, does not necessarily import hatred, ill will, anger, wrath, or vindictiveness, but need he no more than the antithesis of good faith, and if defamatory words charge an actionable crime, and there be an entire absence of malice in fact, actual damages may nevertheless' be recovered.
    [Ed. Note. — For other cases, see label and Slander, Cent. Dig. §§ 149, 278.
    For other definitions, see Words and Phrases, First and Second Series, Malice.]
    6. Libel and Slander <&wkey;5 — PRIVILEGED Communications — Evidence—Malice Inferences.
    Malice may be inferred from the reckless publication of libelous matter.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 278.]
    7. Libel and Slander <&wkey;34 — Privileged Communications.
    The mere fact that a communication of libelous matter is made confidential does not make it a privileged communication.
    [Ed. Note. — For other- cases, see Libel and Slander, Cent. Dig. § 113.]
    3. Libel and Slander <&wkey;101(4) — Privileged Communications — Evidence — Burden of Proof.
    • In a libel case the burden is on the defendant to establish the privileged character of the communication.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 150, 279.]
    9. Libel and Slander <&wkey;34, 51(1) — Priv- . ileged Communications — Malice.
    To be privileged, the communication must be made upon a proper occasion, upon a proper motive, and must be based upon reasonable grounds, and, when so made, in good faith, no recovery can be had without proof of express malice.
    [Ed. Note. — For other cas.es, see Libel and Slander, Cent. Dig. §§ 113, .149.]
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    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 342.
    For other definitions, see Words and Phrases, First and Second Series, Libel.]
    11. Libel and Slander i&wkey;25, 113 — Publication.
    Where defendant wrote a letter to a bank containing libelous statements concerning plaintiff, the fact that the bank, and not the defendant, published the letter, is immaterial, and, defendant being primarily responsible for . the publication of the letter, he is liable for the natural and probable consequences resulting therefrom, though he did not have in mind at the time the actual results following.
    [Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. §§ 107, 108, 342.]
    12. Libel and Slander <&wkey;120(l) — Exemplary Damages.
    Where the libelous statements made by defendant concerning plaintiff in a letter to a bank wore, although unwarranted and untrue, the natural result of an investigation made in good faith and in the exercise of due care, as punitory damages are awarded as a punishment, the imposition of exemplary damages was erroneous.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 350.]
    Buck, J., dissenting in part.
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Suit by John Garlington against H. H. Cobb. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    John J. I-Iiner, of Ft. Worth, for appellant. J. W. Chancellor, of Bowie, for appellee.
   BUCK, J.

This suit was brought February 8, 1915, by appellee against appellant to recover both actual and exemplary damages, and was based upon the writing by appellant to the City National Bank of Bowie, Tex., of the following letter:

“IT. H. Cobb, Pres., E. A. Slack, V. Pres., A. B. Richardson, Y. Pres., D. E. Cobb, V. Pres., C. S. Cobb, Treas., W. H. Cobb, Secy., H. B. Church, Asst. Secy. The W. C. Belcher Land Mortgage Co. Ft. Worth, Texas, Jan. 29, 1915. City National Bank, Bowie, Texas — ■ Gentlemen: Yours ,of the 28th at hand. The draft referred to was obtained by fraud. D. E. Cobb was (at the time of this draft) just recovering from a very serious attack of insanity, and was not fit to do business. Jackson & Garlington knew of this and took advantage of his extremely nervous condition. Jackson & Garlington have not accounted to me for rent of my 586 acres on which Jackson lived last year. Unless they cancel and return this draft I expect to prosecute them. Yours truly, H. I-I. Cobb.”

The above letter was in answer to the hereinafter set out letter written by the bank, to wit:

“Bowie, Texas, Jan. 28th, 15. The W. C. Belcher Land Mortgage Co., Ft. Worth, Texas —Gentlemen: Several days ago Mr. John Gar-lington deposited with us a draft on you for $55.00 drawn by D. E. Cobb, Y. Pt., and payable to John Garlington and Sam Jackson. Payment on this draft was refused and was protested and returned. The protest fees were $5.10. You will please advise us why payment on this draft was refused, as Mr. Garling-ton says that he has a letter from Mr. Cobb, who signs as V. Pt., to turn this in to the Bank and get the funds on it. Tours very truly, C. G. Hutchinson, Asst. Cashier.”

It appears from the statement of facts that H. H. Cobh, who was president of the W. C. Belcher Land Mortgage Company, had an adopted son, D. E. Cobb, who had become demented, and had been sent by H. H. Cobb to the latter’s ranch in Jack county for the purpose of restoring his health and normal mental condition. One Sam Jackson was a tenant on, and in charge of, appellant’s ranch, and during December, 1914, sold to D. E. Cobb for $55 certain cotton in the field and unpicked. In payment of said cotton the following draft was drawn:

It appears that Jackson owed Garlington, and in part payment of such indebtedness delivered to Garlington, who - was a merchant doing business at Bowie, said draft. Garling-ton deposited the draft in the City National Bank at Bowie, and it was sent to Ft. Worth, where appellant lived, for collection. When the draft was presented to appellant it did not have the indorsement of John Garling-ton upon it, and the draft was returned to the City National Bank of Bowie for such indorsement. After the indorsement was made, it was again returned for payment, and the payment thereof refused, and the item protested. As presented in evidence, the draft had across the face a notation of protest on January 20, 1915, and on the back of same the indorsements “Sam Jackson” and “John E. Garlington.”

The case was tried before the court, and judgment rendered for plaintiff for $100 actual damages and $100 exemplary damages, from which judgment defendant appeals.

Appellee claimed that his credit was injured at said bank, and generally, on account of said letter written by appellant, and also claimed damages for injuries to his feelings, as well as exemplary damages on account of the facts: That the statements in said letter were untrue, and were willfully and maliciously made by appellant for the express purpose of injuring appellee.

Appellant pleaded that the letter written by him was in answer to the letter written to him by said bank calling for certain information; that the same was written in confidence to said bank, in good faith, with the honest belief that the statements therein contained were true, and without any malice on his part towards appellee, and without any intention on his part to injure him. He further pleaded that said letter was written by him under the belief that he owed the duty to said bank to furnish it the information called for in its letter to him, and that he thought and believed that said letter was a confidential communication to said bank and was written by him as such; that, if appel-lee was not the party who had perpetrated the fraud on his son in connection with Sam Jackson, then the letter written by him to said bank had no reference to him; that if said letter was shown to appellee, or to any one else, by said bank, it was so shown without appellant’s 'knowledge or consent; and that, if any injury occurred to appellee by reason of the circulation of said letter by said bank, then such injuries, if any, were occasioned by the act of the bank, and not by the act of appellant.

Appellant testified that his adopted son, D. E. Cobb, had not been in good mental condition for some years; that he had been confined in asylums at Traverse City, Mich., at Paris Sound, Ontario, and at Elynt, Mich.; that this unsettled condition of mind had existed for some, ten years, but not so seriously until about three years prior to the trial; that during the past four years the appellant and the Belcher Land Mortgage Company had not intrusted any business matters to said D. E. Cobb, though his name appeared still on some of the letter heads and other stationery of the company as vice president of said company; that on receipt of the draft he noted the absence of Garlington’s indorsement and had the draft returned to the bank to procure the same. In the interim appellant took a trip to his ranch and learned what he thought were the facts in the case, to wit, that Sam Jackson and another, whom he understood to be Garlington, had induced appellant’s demented son to give them the draft in question in payment of a little remnant of cotton then in the field, which was subsequently sold for $9; that Jackson had tried to sell appellant the crop before it was picked, and that he had refused to buy it; that he concluded that Jackson and the other man, whom he thought and understood to be Garlington, had attempted to take advantage of the known mentally weak condition of his son; that he did not know Garlington personally, and had no ill feeling or malice towards him, and that at the time he' made the statements contained in the letter he believed them to be strictly true, with reference to the parties who had sold this cotton to his son; that upon his learning that Garlington was not the other man present when the cotton was sold to his son, he wrote the following letter to Garlington:

“The W. 0. Belcher Land Mortgage Oo., Ft. Worth, Texas, Feb. 12, 1915. John Garling-ton, Bowie, Texas — Dear Sir: I am just back from a trip to Jack county. I learned that you had no interest in the crop made by Mr. Sam Jackson except probably a mortgage interest. I had been misinformed and supposed you and Jackson were partners. In writing the bank at Bowie I should not have connected your name with Mr. Jackson’s as I did. The check which my son. gave 'being drawn to you and Jackson, I supposed at that time that you and he were partners. As my son was known to be an invalid, just recovering from a most serious spell of insanity, I was naturally very indignant that neighbors should take such an advantage of his condition. Am very sorry to have been unjust to you. If you show this letter to your bankers it will I hope set matters as nearly right as possible. Yours truly, H. H. Cobb.”

As will be noted, the letter is dated February 12, 1915, four days after suit was filed, though appellant stated that he did not know whether the letter to Garlington was written after or before the service of citation in the case. He further stated under cross-examination:

“I do not commonly write such letters with reference to men as 1 wrote to the bank on this occasion; I might act a little more hasty right at the time than I would at a later date. Yes; I was a little bit vexed right at that time.”

Appellee testified that he did not know D. E. Cobb nor H. H. Cobb; that he had a mortgage on the crop of Sam Jackson, and that the draft was sent him in part payment of the indebtedness due him; that he knew nothing of any trade between D. E. Cobb and Sam Jackson in settlement of which the draft was given; that he knew nothing of the mental condition of D. E. Cobb; and that, when the payment on the draft was refused, he wrote to D. E. Oobb for an explanation. There appears in the statement of facts the following letter, which evidently accompanied, or was written about the time of the sending of, the draft to Garlington:

“Jany. 13, 1915.
“Mr. John Garlington, Bowie, Texas — Dear Sir: I inclose draft in favor of you and Sam Jackson for $55 for cotton. Please indorse same and deposit in your bank.
“Yours truly, D. E. Cobb.”

Appellee further testified that he did not claim any injury in this case, as a basis for damages, except the injury to his feelings; that it hurt his feelings considerably.

Appellant urges in his first assignment that the undisputed testimony in this cause shows that the letter made the basis of this suit was written by him to the bank in reply to a letter to him seeking certain information, and that said letter was and is a privileged communication, and was so considered by the defendant, and was written by him under the belief that he owed it to said bank to state the facts to it as he understood them, and that he acted in good faith, with the honest belief of the truthfulness of the statements so made, and that said letter was written without any malice on his part, or without any intention to injure the plaintiff herein.

Preliminary to the discussion of this assignment, it may be well for us to state some recognized definitions of the terms used in this assignment, and as may be necessarily used in the further discussion of the questions therein presented, and ■ to state some general principles of law connected with the subject of libel.

A “privileged communication” is one fairly made by a person in the discharge of some private or public duty, legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. Ashcroft v. Hammond, 197 N. Y. 488, 90 N. E. 1117, 1119, cited in 3 Words and Phrases, p. 1210. In the case of Allen v. Earnest, 145 S. W. 1101-1104, the Court of Appeals for the Fifth District quotes with approval the following definition given in Knapp & Co. v. Campbell, 14 Tex. Civ. App. 199, 36 S. W. 766:

“Privileged communications are usually divided into those absolutely privileged and those only conditionally so. By an absolutely privileged publication is meant one which, by reason of the occasion upon which it is made, no remedy is provided for the damages in a civil action for slander or libel. Such are the opinions of judges of superior courts and the speeches of members of Congress or Legislatures.”

Towns. Sland. & Lib. § 176, defines the term as:

The privilege to “publish, by speech or writing, whatever he honestly believes is essential to the protection of his own rights, or to the rights of another, provided the publication be not unnecessarily made to others than to those persons whom the publisher honestly believes can assist him in the protection of his own rights, or to those whom he honestly believes will, by reason of a knowledge of the matter published, be better enabled to assert, or to protect from invasion, either their own rights or the rights of others intrusted to their guardianship.”

Communications not absolutely privileged may be conditionally or qualifiedly so, and may be divided into three classes, namely: (1) Fair reports of the proceedings of courts and legislative bodies; (2; where the defendant in good faith, in the performance of a duty, makes a communication to another to whom he owes a duty; (3) where one who has an interest in the subject makes a communication relating thereto to another having a corresponding interest. 3 Words and Phrases, p. 1212. See, also, Hix v. State (Cr. App.) 20 S. W. 550, 551. Our statute (article 5595, Yernon’s Say les’ Texas Civil Statutes) defines libel, in so far as it many be pertinent here, as:

“A defamation expressed in printing or writing, * * * tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one.”

Article 5596, Vernon’s Sayles’ Texas Civil Statutes, provides that, if specially pleaded, the defendant may give in evidence, in mitigation of exemplary or punitive damages, circumstances and intentions under which the libelous publication was made, and any public apology, correction, or retraction made and published by him of the libel complained of; yet it does not provide that such circumstances and intentions may be successfully offered as a complete defense against the action, apparently limiting such complete defense or justification to the establishment of the truth of the statements made in' such publication. Article 5597, Id., enumerates certain publications and communications which shall be deemed privileged. Yet under our decisions construing articles 5596 and 5597, supra, it seems to have been generally recognized by our courts that said articles do not exclude the beneficent operation of the principles of the common law with reference to conditionally or qualifiedly privileged communications. But a communication may be made upon an occasion which would authorize a privileged communication, and yet the author or writer may use language in excess of the limits fixed by such privilege.

A privileged communication is one made on an occasion and under circumstances that rebut the prima facie inference of malice arising from the publication of matter prejudicial to the character or reputation of the plaintiff, and throws upon him the burden of proving malice in fact, but not of proving it by extrinsic evidence only. He has still a right to require that the alleged libel itself shall be submitted to the jury, or to the court where jury is waived, that they may judge whether there is evidence of malice on the face of it. Morse v. Times -Republican Printing Co., 124 Iowa, 707, 100 N. W. 867. Also the jury or court trying the case would have the right to pass upon the question of whether or not the author or publisher of the alleged libel had in fact exceeded his privilege in the communication made, or had used the occasion to indulge his malice, and not in good faith to perform a duty or mate a communication useful and beneficial to others. See M. P. Ry. Co. v. Richmond, 73 Tex. 568, 575, 11 S. W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794.

In this connection it will be well for us to keep in mind that the term “malice,” as here used, does not import necessarily hatred, ill will, anger, wrath, or vindictiveness, but need be no more than the antithesis of good faith. If defamatory words charge an actionable crime, and there be an entire absence of malice in fact, actual damages may nevertheless be recovered. Belo & Co. v. Joe Fuller, 84 Tex. 450, 453, 19 S. W. 616, 31 Am. St. Rep. 75; Forke v. Homann, 14 Tex. Civ. App. 670, 39 S. W. 210, writ of error denied in 93 Tex. 683, 39 S. W. 210.

Malice may be inferred from the reckless publication of libelous matter. The mere fact that a communication of libelous matter is made confidential does not make it a privileged communication. Smith v. State, 32 Tex. 594. And the burden is on the defendant to establish the privileged character of the communication. Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 49.

To be privileged, the communication must be made upon a proper occasion, upon a proper motive, and must be based upon reasonable grounds. When so made, in good faith, no recovery can be had without proof of express malice. Newell on Libel, 391, § 7; Cranfill v. Hayden, 22 Tex. Civ. App. 656, 55 S. W. 805.

“The occasion is the entire group of circumstances surrounding the act, including the actor, the person acted upon, the character of the act, the manner of effecting the act, and the motive and consequences of the act.” .Same authorities.

Prom the above discussion of established principles pertaining to the subject of' libel it is apparent to us that the appellant, upon the receipt of the letter of inquiry from the bank, had the right to communicate to the bank the reason or reasons for his refusal or failure to honor the draft; such reasons to be given succinctly and with due regard to the rights of the third parties concerned, including the appellee. But we are further of the opinion that the trial court was justified in deciding, as he evidently did, that the letter upon which this action was based contained statements beyond, and not within, the scope of the privilege accorded to appellant by reason of the occasion. The bank had an interest in the subject-matter involved; that is, had a right to know why the payment of the draft had been refused. But we do not think the situation and occasion could be held to justify, or to even call for, certain statements contained in the letter to the effect that Garlington had been guilty of an offense against the law, for which appellant intended to prosecute him, unless the draft should be returned and canceled. The publication of a statement charging one with the commission of a criminal offense involving moral turpitude, unless absolutely privileged, is actionable per se. Sanders v. Hall, 22 Tex. Civ. App. 282, 55 S. W. 594, writ of error denied. And since it is acknowledged by appellant, and amply shown by the evidence, that the statements contained in this letter with reference to appellee were not true or justified, but were made under a misunderstanding as to the facts, it follows that the plaintiff was entitled to recor er for such actual damages as he had alleged and proven. 25 Cyc. 260g. Where an article admitted to have been published is libelous per se, plaintiff need not prove special damages, but is entitled to such damages as the jury believe from the nature of the false charge he has sustained by reason of mental anguish and injury to his reputation. Belo & Co. v. Smith, 40 S. W. 856. Where the words published are in themselves libelous per se, mental suffering ’occasioned thereby may be taken into consideration by the jury or court for the purpose of estimating general and compensatory damages. 25 Cyc. 533 (IV); Forke v. Homann, 14 Tex. Civ. App. 670, 39 S. W. 210; Belo & Co. v. Fuller, 84 Tex. 453, 19 S. W. 616, 31 Am. St. Rep. 75; Zeliff v. Jennings, 61 Tex. 458-466; Houston Printing Co. v. Moulden, 15 Tex. Civ. App. 574, 41 S. W. 3S1, 385; Williams v. Toe, 19 Tex. Civ. App. 281, 46 S. W. 659. Hence we conclude that appellant’s first, second, third, fourth, and fifth assignments must be overruled in so far as the questions therein presented pertain to that part of the judgment allowing actual damages.

We do not believe that the contention of appellant that any injury to the appellee was caused, not by his act in publishing the letter, but by the act of the bank in showing the letter to the appellee, is sound. It must have been reasonably presumed and understood by appellant when he wrote the letter to the bank that the bank would show the letter to appellee, by whom the draft had been placed in the bank for collection, and that, if the statements were untrue or unwarranted, appellee’s feelings would be hurt thereby. The appellant being primarily responsible for the publication of the letter, he is liable for the natural and probable consequences resulting therefrom, though he did not have in mind at the time the actual results following. 25 Cyc. 366 et seq.

The sixth specification of error is leveled at that part of the judgment of the trial court which awards exemplary damages in favor of plaintiff as being “wholly unsupported by the evidence herein and the law applicable to the facts of this case.”

As to the proper determination of the question here presented, we are not entirely agreed, but the majority, consisting of Chief Justice CONNER and Associate Justice DUNKLIN, are of the opinion that the assignment should be sustained, and upon the following grounds: Exemplary damages can be awarded only as a punishment when the injury inflicted was the result of the fraud, malice, gross negligence, or oppression of the defendant. When such damages are claimed, the petition should set forth the acts or omissions which constituted such fraud, malice, gross negligence, or oppression. Railway Co. v. Garcia, 70 Tex. 207, 7 S. W. 802. To authorize a verdict for exemplary damages in a case of this kind, there must be evidence to satisfy the mind that the person responsible for the publication of the alleged libel was actuated by malice, either express or implied, and with the present consciousness of invading another’s right or of exposing him to injuries. Jacobs, Bernheim & Co. v. Crum, 62 Tex. 415; Harmon v. Callahan, 35 S. W. 705; Smith v. Holland, 16 S. W. 424. The majority are of the opinion that the facts in this case show that the appellant, before writing the letter, had made such an investigation of the facts as a reasonably prudent ¡man would have made under the circumstances, and that as a result of such investigation he reached the conclusion that the appellee had been guilty of a gross act of bad faith in securing the draft in question from the appellant’s adopted son, and that this conclusion, though it afterwards proved to be unwarranted, was a natural result of the investigation made in good faith, and in the exercise of due care by apijellant; that since punitory damages are awarded as a punishment, and not in the way of compensation, and since the facts fail to show the lack of due care on the part of appellant in investigating the matter before he wrote the letter, or in coming to the conclusion that such letter expressed, the exemplary damages herein awarded were not justified. Hence the majority conclude that the judgment herein should be reformed by eliminating the exemplary damages awarded, and affirmed as to the actual damages recovered, and costs of suit in the trial court, with costs of this appeal taxed against appellee.

The writer does not concur in this disposition of the case, nor agree that the facts exclude the idea of a lack of investigation on the part of appellant such as a reasonably prudent man would have made under the circumstances, or that the letter itself and the testimony of appellant and others exclude the idea of implied malice. If the facts show that the defendant in an action for libel was actuated either by express or implied malice, exemplary damages will lie. King v. Sassaman, 54 S. W. 304; Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058, 15 Am. St. Rep. 819; Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609; Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 76S.

But, in accord with the conclusion of the majority, the judgment here will be reformed so as to exclude the item of exemplary damages, and, as so reformed, will be affirmed; the costs of this court taxed against appellee.

Reformed and affirmed.

BUCK, J., dissenting in part.
      ©soFor other oases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    SCHAFF v. NASH et al.
    (No. 1103.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1917.)
    1. Appeal and Error <5&wkey;67!)(l) — Overruling Plea in Abatement — Nature of Order.
    Record showing that the court, “after having read said plea (in abatement), * * * was of the opinion that said plea is not well taken, * * * and it is therefore ordered * * that said plea in abatement be and the same is in all things hereby overruled,” held not to show a sustaining of exception to the plea, but overruling- the plea on its merits, and if in fact the action was a sustaining of an exception, it was the party’s duty to see that the record clearly stated it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2878, 2879.]
    2. Pleading ¡&wkey;110 — Waiver of Plea in Abatement.
    The mere filing of a plea in abatement without sustaining the allegations amounts to a waiver of the plea, and where it occurs, the overruling of the plea is not erroneous.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 231-233.]
    3. Receivers <@=^183 — Action against — Allegation of Time.
    Petition alleging cause of action against receivers, giving date of injury and justifying inference that it arose during receivership, was not demurrable for failing to specifically allege that fact.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    4. Receivers <&wkey;183 — Action against — Pleading Receivership.
    While in action by receiver, pleadings should show authority to sue in that capacity, in a suit against receivers, it is sufficient to allege that defendants are receivers of a named corporation.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    5. Receivers &wkey;>183 — Action against — Pleading Damage During Receivership.
    Petition charging that receivers were responsible for damages claimed sufficiently alleged that the damage occurred during the receivership.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    6. Receivers <&wkey;183 — Action against — Necessity o-f Special Denial of Capacity.
    in absence of a special plea denying defendants’ capacity as receivers, proof to sustain such allegations was not required, and a general demurrer does not sufficiently raise the question.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    7. Receivers <&wkey;183 — Pleading Capacity-Necessity of Verification — Statute.
    Vernon’s Sayles’ Ann. Civ. 1914, art. 1906, prescribing eases in which pleas must be verified, does not apply to special pleas denying defendants’ capacity as receivers.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    8. Pleading <5&wkey;110 — Effect of Overruling Plea in Abatement — Admission of Allegation.
    Where plea in abatement to allegation of damages oeeurring_ during receivership was not stricken on exceptions, but overruled because of lack of proof, it was an admission of facts alleged in petition.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 231-233.]
    9. Receivers <&wkey; 183 — Appointed by Federal Court — Action against — Pleading Court’s Permission to Sue.
    In suing a receiver appointed by a federal court for damages occurring prior to receivership, pleading must allege permission of court to bring suit, and otherwise would be subject to general demurrer.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    10. Receivers <&wkey;183 — Action against — Recovery.
    It was error to sustain exception to receivers’ answer alleging occurrence of injury before appointment, since, if plaintiff could recover for such damages, he could recover against the railway company although the receiver was a proper party.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 361-366.]
    Appeal from Hemphill County Court; J. L. Jennings, Judge.
    Suit by George J. Nash and others against C. E. Schaff and others. Judgment for plaintiffs against defendant named but in favor of all other defendants and defendant named appeals.
    Affirmed. On motion for rehearing, former opinion withdrawn, judgment reversed and cause remanded.
    Hoover & Dial, of Canadian, and A. H. McI-Cnight, of Dallas, for appellant. Baker & Willis, of Canadian, for appellees.
   HALL, J.

Appellee Nash sued the Panhandle & Santa Fé Railway Company, the Ft. Worth & Denver City Railway Company, the Missouri, Kansas & Texas Railway Company, and the appellant, Schaff, as receiver of the last-named road, to recover damages alleged to have resulted in the shipment of a horse from Denton, Tex., to Miami, Tex. It is alleged that on account of the negligence of the defendants and each of them, while transporting said horse it received internal injuries which caused its death. The animal is valued at $200, and $23 additional is claimed as the amount paid a veterinarian in an attempt to save its life. Defendant Schaff, as receiver, filed his plea in abatement, setting up his appointment as such receiver by the District Court of the United States for the Northern District of Texas, alleging such appointment to have been made September, 25, 1915; that as shown by plaintiff’s petition the injury complained of was sustained on July 12, 1915, prior to his appointment as such receiver; that since the cause of action accrued prior to his appointment, he could not be sued for damages without leave of the United States District Court for the Northern District of Texas, and such leave had not been obtained. The service on the Missouri, Kansas & Texas Railway Company was defective, and the plaintiff proceeded to trial without the company being a defendant. In addition to his plea in abatement, Sehaff, the receiver, filed an answer, consisting of a general demurrer, special exception, general denial, and alleging that the injury complained of by plaintiff was sustained prior to his appointment and qualification as receiver. The defendants Ft. Worth & Denver Oity Railway Company and Pecos & Santa Fé Railway Company filed a joint answer, which consisted of a general demurrer and general denial. The trial, before a jury, resulted in a verdict and judgment in favor of all defendants except appellant, and against him for the sum of $188.50.

The first error assigned is that the court erred in overruling and not sustaining defendant’s plea in abatement. The proposition urged is that a receiver of a railway company, under the laws of the state of Texas, cannot be sued for damages alleged to have been sustained prior to his appointment as such receiver, without first obtaining leave of the court in which the proceedings are pending to file such suit, and the plaintiff’s petition in this case failing to show when the receiver was appointed, and the plea in abatement duly verified setting up the fact that the receiver was appointed subsequent to the time of the injury, which was not denied, it was error for the court to permit the plaintiff to proceed against the receiver, and therefore the court erred in overruling the plea in abatement. In the motion for rehearing, in this connection, appellant asserts that the appellees’ exceptions to appellant’s plea in abatement were sustained. The record does not support this contention. On the contrary, the only judgment of the court in any way referring to the plea in abatement is as follows:

“When there came on to be considered by the court the plea in abatement of the defendant, 0. E. Sehaff, as receiver of the Missouri, Kansas & Texas Railway Company of Texas, and the court, after having read said plea, and having heard the argument of counsel, both for and against the same, is of the opinion that said plea is not well taken, and it is therefore ordered, adjudged, and decreed by the court that said plea in abatement be and the same is in all things hereby overruled, to which action of the court in overruling said plea in abatement the said defendant C. E. Sehaff, as receiver, as aforesaid, then and therein open court duly excepted.”

This is certainly not an order sustaining an exception to the plea, but is a judgment overruling it upon its merits. The record fails to show that any evidence was introduced to sustain its allegations. The only inference to be drawn from the record is that the appellant relied on the plea alone without introducing any evidence other than to make profert of the plea. If it is a fact that the court only sustained an exception to the plea, it was the duty of appellant to see that the record correctly reflected the court’s action. The mere filing of a plea in abatement, without sustaining the allegations made by competent testimony, is tantamount to a waiver of the plea. Graves v. Bonham First National Bank, 77 Tex. 555, 14 S. W. 163; Hart v. Kanady, 33 Tex. 720; Robertson v. Ephriam, 18 Tex. 118; Mangum v. Dane City Rice Milling Co., 95 S. W. 605; Gulf, etc., Ry. Co. v. Weddington, 31 Tex. Civ. App. 235, 71 S. W. 7S0; Hopson v. Caswell, 13 Tex. Civ. App. 492, 36 S. W. 313. Appellant having waived the plea, as shown by this record, by failure to sustain its allegations by proof the court did not err in overruling it.

By his second assignment of error appellant insists that the court erred in not sustaining his general demurrer to the plaintiff’s petition, because said petition should have alleged that the cause of action arose subsequent to the appointment of a receiver, and the plaintiff’s petition in this case, failing to so allege, was subject to the general demurrer. Appellant cites no authority sustaining this assignment. We think the defect, if a defect, was not one which could be reached by general exception. The petition alleged a cause of action and gave the date of the injury complained of, and the action is against appellant as receiver. The inference from the facts alleged is that the damages occurred during the receivership and were chargeable to the receiver.

By his third assignment, appellant insists that the court erred in not sustaining his special exception to the plaintiff’s petition, to the effect that the petition fails to allege the appointment and qualification of Sehaff as receiver of the railway company, and therefore it could not be determined from the petition whether the injury complained of was sustained prior to the appointment and qualification of appellant, as receiver, or thereafter. Appellee’s allegation as to the official capacity of Sehaff is as follows:

“Geo. J. Nash, who resides in Wheeler county, Tex., hereinafter styled plaintiff, complaining of the Missouri, Kansas & Texas Railway Company of Texas, a corporation duly incorporated by law, and of its receiver, O. E. Sehaff,” etc.

In a suit instituted by a receiver he should generally show by his pleadings his authority to sue in such capacity, but when the suit is against the receiver, an allegation that he is the receiver of a named corporation is sufficient. 34 Cyc. 408.

The petition charges that the defendants, and each of them, are responsible for the damages alleged, and this is a sufficient allegation that the damages occurred during the receivership. St. Louis, B. & M. Ry. Co. v. Knowles, 171 S. W. 245. In the absence of a special plea denying the capacity in which he was sued, plaintiff was not required to prove that Sehaff was receiver of one of the defendant railway companies, the rule being that when the capacity in which a party sues or is being sued is not denied by a special plea, proof to sustain the allegation is not required, and a general demurrer does not raise the issue. 34 Cyc. 442; Tolbert v. McBride, 75 Tex. 95, 12 S. W. 753; Cheatham v. Riddle, 12 Tex. 112; Clifton v. Lilley, 12 Tex. 134; I. & G. N. Ry. Co. v. Bradt, 57 Tex. Civ. App. 82, 122 S. W. 59; I. & G. N. Ry. Co. v. Ormond, 57 Tex. Civ. App. 79, 121 S. W. 899; Spelman v. Delano, 177 Mo. App. 28, 163 S. W. 302; McNulta v. Lockridge, 137 Ill. 270, 27 N. E. 452, 31 Am. St. Rep. 362 ; 8 Enc. Pl. & Pr., 685. In the Cheatham Case, supra, the question was squarely before the court, and Wheeler, Justice, after stating the former English rule, said:

“But these useless distinctions have been abolished in England by the recent rules, * * * and now in all actions by or against executors or administrators the character in which the plaintiff sues or the defendant is sued cannot, in any case, be considered as in issue, unless specially denied, * * * and it has been held in this country that unless the defendant’s right to sue as executor or administrator is put in issue by the defendant’s plea, it will be deemed to have been admitted. * * * This rule is convenient in practice; and, it is conceived, is in consonance with principle, especially under our system of pleading, which requires such specialty in pleading as will apprise the adverse party of the matters of fact intended to be relied on in evidence, and the practice is believed to have been, not to require the plaintiff to prove his representative character, * * * unless it is controverted by the pleading of his adversary,” etc.

In the Tolbert Case, supra, the court said:

“Appellant insists that there was error in the judgment because there was no proof that he was the administrator of the estate. No such proof was required. He had not put the matter in issue by a special plea that he was not the administrator, and the general denial did not put the fact in issue. 3 Wait’s Act. & Def. 270; Williams, Executors, 1654, 1655; 3 Ohit. Bl. Comm. 940, note; Cheatham v. Riddle, 12 Tex. 112.”

In the Spelman Case, supra, Trimble, Justice of the Kansas City Court of Appeals, said:

“The point is first made that the case cannot be affirmed because there was no proof that the defendants, the receivers, were in charge of and operating the road; but the petition alleged that they were, and this was not denied nor put in issue by. a special plea. * * * When the general issue alone is pleaded, it does not put in issue either the character in which the plaintiff sues or the character or capacity in which the defendant is sued. * * * The fact that the receivers were in charge and operating the road being thus impliedly admitted, plaintiff was not required to prove such allegation. * * * This was true at common law, and it is equally so under the Code. Baxter v. St. Louis Transit Co., 198 Mo. loc. cit. 6, 95 S. W. 856.” 7 Stand. Proc. 72, 73, and authorities cited.

While the Bradt and the Ormond Cases, supra, seem to hold that the allegation in the plea denying the capacity of the plaintiff must be verified under the statute in order to put plaintiff upon proof, as we understand the common-law rule, a special plea without verification is all that is required. The contrary rule seems to have been announced in Kirby Lbr. Co. v. Cunningham, 154 S. W. 292, and in American L. & M. Co. v. Bangle, 153 S. W. 663, but in neither of these cases is there any citation of authorities sustaining the position. Both opinions are based upon article 1265, Revised Statutes, which is article 1906, Vernon’s Say les’ Civil Statutes. This particular article of the statute, in our opinion, has no application to such a state of pleading. Adams et ux. v. S. A. & A. P. Ry. Co., 34 Tex. Civ. App. 413, 79 S. W. 79.

Even if we should hold that the- rule ordinarily requires appellee to allege and prove the appointment and qualification of the receiver, appellant in this case has relieved him of that duty by making the necessary allegation. Since the plea in abatement was not stricken on exceptions, but was overruled apparently because proof was not introduced to sustain it, it must be taken as an admission of the facts therein alleged. H., E. & W. T. Ry. Co. v. Waltman, 132 S. W. 518.

If plaintiff’s petition had shown that he was suing a receiver appointed by a federal court for damages accruing prior to the receivership, the pleading would have been subject to a general demurrer unless it had also been alleged that permission of the federal court had first been obtained to sue S chaff. Andrews v. Jeter, 171 S. W. 838.

By his fourth assignment the proposition is urged that the court should not have sustained appellees’ special exception to the third paragraph of appellant’s answer, wherein it is alleged that the injury complained of by appellee, if sustained at all, was sustained prior to the appointment and qualification of Schaff as receiver. If appellee was entitled to recover the damages accruing prior to the appointment of Schaff, as receiver, they were recoverable against the railway company, although the receiver was a proper party to the suit. I. & G. N. Ry. Co. v. Ormond, supra; Dallas Consolidated Traction Railway Co. et al. v. Hurley et al., 10 Tex. Civ. App. 246, 31 S. W. 73.

Because the court erred in sustaining the exception to this allegation, the motion for rehearing is granted, our former opinion is withdrawn, and the judgment is reversed, and the cause remanded.
      ©=>For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    SOUTHERN PAC. CO. v. GORDON.
    (No. 671.)
    (Court of Civil Appeals of Texas. El Paso.
    March 15, 1917.
    Rehearing Denied April 5, 1917.)
    1. Witnesses <&wkey;240(4) — Leading Questions.
    Asking a witness to state whether or not he knew what caused a shed to fall, and, if he did, to state the cause, does not suggest a particular answer and is not leading.
    [Ed. Note.—For other eases, see Witnesses. Cent. Dig. § 839.]
    2. Evidence &wkey;>474(ll) — Conclusions — Facts as Basis.
    A witness who was present at an accident, and has described in detail the facts leading up to the fall of a shed may give Ms conclusion as to the cause of the falling.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2206.]
    3. MASTER AND SERVANT &wkey;>280 — PERSONAL Injuries — Assumption oe Risk.
    In an action by a servant for injuries received wMle working on a snowshed being wrecked, evidence held not to show that servant’s injuries were due to dangers assumed by him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-986.]

      4. Master and Servant &wkey;>288(6) — Injuries to Servant — Assumption op Risk — Questions for Jury.
    In an action by a servant for personal injuries, whether servant had such knowledge of the danger as to charge him with assumption of the risk held a question for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1072j
    5. Appear and Error <§^1001(1) — Review-Findings op Jury — Affirmative Evidence.
    Findings of the jury supported by affirmative evidence will not be disturbed on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3928-3933.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by A. E. Gordon against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall, Kemp & Nagle, of El Paso, for appellant. Geo. E. Wallace, P. E. Gardner, and W. S. Berkshire, all of El Paso, for appellee.
   HARPER, C. J.

This suit was brought in the district court of El Paso county, Tex., hy A. E. Gordon, against the Southern Pacific Company for injuries which he alleges he sustained while in the employ of the defendant company as carpenter, while engaged in assisting in wrecking a snowshed, near Blue Canyon, in the state of California, on or about the 16th day of February, 1915. Plaintiff alleged that through the negligence of the defendant and its crew in charge of the work he sustained injuries for which he sued. Tried with á jury, and upon their verdict, judgment was entered for $5,000 damages, and this is appealed from.

By the first assignment, it is urged that the court erred in permitting plaintiff to introduce an interrogatory propounded to one Schaeffer, as follows:

“Please state whether or not from the position you occupied you knew what caused the shed to fall, and if you say .you do, please state specifically, as nearly as you can, the cause of the shed falling, and how it was caused to fall,”

—first, because it was leading and suggestive and suggests to the 'witness that he knew what caused the shed to fall; and, second, because the witness is nowhere qualified to testify as to the cause of the falling of the shed.

And the second assignment urges that the answer thereto should have been stricken out for the reason that same is in response to a leading and suggestive question, and because it is a conclusion of the witness, and he is not shown to have been qualified to testify to a conclusion. The answer is:

“It was caused to fall by pulling out that main line beam first.”

A leading question is one which suggests a particular answer. We fail to see how the question suggested the answer to be given. There are, properly speaking, two interrogatories in one, and the answer objected to does not cover the first. The statement of facts shows that he testified that he was present and witnessed the accident and described in detail' the facts leading up to the fall of the shed, and it seems that this is all the qualification necessary in such cases, for this is in no sense an opinion from an expert, and, since he states the facts, it was not improper for him to state his conclusions based thereon.

It seems that the objections urged to these questions and the answer were more nearly directed at the probative value of the testimony than its admissibility. The assignments are therefore overruled.

The third and fourth urge that the court erred in not excluding the following interrogatory and answer:

“If you answer the above interrogatory that the foreman or some of the men tied a rope to one of the beams or supports, then please state what beams or supports this was, and also state whether any force was applied to this rope, and state -whether or not from the position you then occupied you could tell what effect the application of force on this rope had on the beams and supports of the shed; if so, state what and how it affected the shed with reference to whether or not it caused it to move or fall,”

—to which the witness answered:

“They tied the rope to the main line beam. There was men pulling on it. How many I don’t know. The force of the rope pulled out the beam, and that let the supports go. It caused the sheds to collapse.”

Overruled for the reasons given next above.

The fifth assignment is to the same effect, directed to a similar question and answer, and is overruled for the same reasons.

The sixth reads:

“The court erred in its general charge in submitting to the jury the question of liability on the part of the defendant for the reason that the court should have instructed a verdict in favor of the defendant because the uncontro-verted evidence shows that the plaintiff was an experienced man, familiar with the wrecking of snowsheds and with the manner of doing the work, and that he knew and must have known of the manner and way in which the snowshed was being wrecked and the condition of the snowshed, and because the uncontroverted evidence shows that he knew or must necessarily have known and was charged with knowledge of the risks and dangers incident to the wrecking of the snowshed in the manner and way in which it was being wrecked.”

The seventh complains of the failure to give a peremptory instruction. The propositions urged under both are the same:

“That the evidence shows that plaintiff’s injuries were due to risks and dangers assumed by him.”

Substantially plaintiff’s petition sets up the following acts as constituting negligence upon the part of defendant company: That he was engaged as a carpenter to construct, repair, and remodel snowsheds; that one Thompson was defendant’s foreman; that said Thompson and his crew were engaged in wrecking a shed near Blue Canyon, Cal.; that said shed extended over the main line, and also over a side track; that he was directed to remove a part of the roof over the side track, and that said Thompson directed other members of the crew to remove a portion of it which was over the main line; that in doing so they removed certain supports or beams, and that on account of the fact that said beams were the main support of the entire shed, when they were removed, the entire shed collapsed, including that upon which plaintiff was working; that he was thereby thrown down and injured; that he had no knowledge of the condition of the shed, nor did he have any warning that the foreman and other members of the crew were in the act of removing the supports as they did. There is affirmative evidence in the record supporting these allegations. The court was therefore required to submit the question of negligence. It was admitted that the plaintiff was at the time engaged in interstate commerce.

Was he guilty of assumed risk? The defense of assumed risk rests on the fact that a servant knowingly and voluntarily exposed himself to danger and thus assumes the risk thereof. There is evidence that plaintiff was engaged in the work assigned to him prior to and at the time that the foreman and other employés by the act of removing the main beam caused the shed to fall. It therefore became a question' of fact for the jury to determine whether plaintiff had such knowledge of the danger as to charge him with assumption of the risk, and, the question having been determined in favor of plaintiff, the judgment cannot be disturbed.

The assignments are therefore overruled, and the cause affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <g^3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes