text:
    HANOVER FIRE INS. CO. OF NEW YORK v. HUFF.
    (No. 433.)
    (Court of Civil Appeals of Texas. El Paso.
    April 8, 1915.)
    1. Appeal and Error <S=549 — Decisions Reviewable.
    Where not presented by bill of exceptions, as required by rule 70 (142 SI W. xxii) for the county and district courts, the question of the denial of a continuance cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2441-2451; Dec. Dig. <©=> 549.]
    2. Evidence <@==>471— Opinion Evidence — Conclusion op Witness.
    In a suit on a fire policy, where the insurer brought out that insured had constructed one room inside of another apparently with the view of establishing that the inner room was built for gaming purposes, insured may explain the purpose for which it was built; such testimony being a statement of fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. <@=>471.]
    3. Appeal and Error <@=»926 — Review—Presumptions.
    In the absence of statements to the contrary in the bill of exceptions, it will be presumed that the court by proper inquiries satisfied itself as to the competency of witnesses before allowing them to give expert testimony.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1279, 2899, 3729, 3730, 3735-3747; Dec. Dig. <@=*926.]
    4. Appeal and Error <@=>544^-Review — Bill op Exceptions — Necessity.
    The propriety of the admission of testimony cannot be reviewed without a bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <@=> 544.]
    5. Witnesses <@=>258 — Examination—Testimony.
    A witness testifying as to property destroyed by fire may testify, that a carbon copy of the list attached to the proof of loss was a correct list of the property in the building burned.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 887, 893, 895, 896; Dec. Dig. <@=> 258.]
    6. Depositions <©==>111 — Objections—Necessity.
    When not urged by motion before announcing ready for trial, an abjection that answer to a question in a deposition was not responsive, the question being to give in detail the result of a fire and the answer being total loss, was waived.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 329-338; Dec. Dig. <§¿>111.]
    7. Appeal and Error <§=>1051 — Review — Harmless Error.
    The erroneous admission of testimony is harmless where the fact testified to was established by other evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <§==> 1051.]
    8. Principal and Agent <@=^120 — Authority — Evidence.
    Where a fire policy provided that the word “insured” should include the legal representative of the insured, and the insurer questioned the right of insured’s agent to make proof of loss, evidence of a power of attorney is admissible.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 402^412; Dec. Dig. <§=> 120.]
    9. Appeal and Error <§=>1050 — Review — Harmless Error.
    The admission of the power of attorney of insured’s agent, who made proof of loss, if erroneous, was harmless, where the sufficiency of the proof of loss was waived, as it did not tend to induce an improper verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]
    10. Insurance <§=>560 — Fire Policies — Proofs of Loss.
    Where proof of loss was defective because the notary before whom it was sworn was interested, the insurer, to raise that question, must ■object to it on that ground.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1393-1404; Dec. Dig. <§=>560.]
    11. Insurance <§=>559 — Fire Policies — Proof of Loss — Waiver.
    Where a fire company denied its liability in toto, there was a waiver of irregularities in the proof of loss.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1391, 1392; Dec. Dig. <§=>559.]
    12. Trial <§=>139 — Jury Question — Weight of Evidence.
    The weight of evidence is for the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. <§=> 139.]
    13. Appeal and Error <§=>1070 — Review-Harmless Error.
    Where judgment on a fire policy was only for $500, the fact that a finding that at the time of the fire the property destroyed was worth $1,000 was not warranted by the evidence was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <§=> 1070.]
    14. Appeal and Error <§=>1070 — Review-Harmless Error.
    Where a fire company denied all liability under a policy, error in a finding that there was no disagreement between it and the insured as to the amount of loss was immaterial.'
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <§=> 1070.]
    Error from El Paso County Court; A. S. J. Eylar, Judge.
    Action by J. C. Huff against the Hanover Fire Insurance Company of New York. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Burges & Burges, of El Paso, for plaintiff in error. Moore & Harris, of El Paso, for defendant in error.
   HARPER, C. J.

This was an action brought in the county court of El Paso county, Tex., by the defendant in error, J. C. Huff, against the Hanover Fire Insurance Company of New York, to recover on a fire insurance policy issued by the plaintiff in error to defendant in error in the sum of $500, covering certain household furniture and fixtures, wearing apparel, and household goods and furnishings. The company, upon several grounds, denied liability. Judgment was entered for appellee upon special finding by the jury for $500, from which this appeal is taken.

The first assignment is that the court erred in overruling the defendant’s second application for continuance. The action of the court in this respect cannot be reviewed because not presented by bill of exceptions, as required by rule 70 (142 S. W. xxii) for the government of county and district courts. Marshall & E. T. Ry. Co. v. Blackburn, 155 S. W. 625; Waites v. Osborne, 66 Tex. 648, 2 S. W. 665; Railway Co. v. Hardin, 62 Tex. 367; Harrison v. Cotton, 25 Tex. 54; Campion v. Angier, 16 Tex. 93.

There appears, in the order overruling the motion for continuance, the exception taken by appellant to such action. This is insufficient and will not take the place of a proper bill of exception upon the subject, and the cases above noted set forth the reasons why there must be a proper bill of exception, and that a simple notation of an exception in the judgment entry is insufficient.

The second assigns as error the action of the trial court in permitting the plaintiff to explain the purposes for which a room built inside of another could be used. The bill of exception in the record shows the objection to be addressed to the question, “Take that sketch that you have drawn of the house and explain fully the reasons for building that room in there as it was”; the reasons for the objection being that the testimony would be self-serving, etc., and not a statement of a fact. The counsel for defendant had, upon cross-examination, interrogated the witness about the room, apparently with a view of establishing that it was built for gambling purposes, and he had the right, upon redirect examination, to give his reason for constructing the room. Wade v. Odle, 21 Tex. Civ. App. 656, 54 S. W. 786. The statement as to his reason would be a statement Of a fact. There was no error, and the assignment is overruled. Hamburg v. Wood, 66 Tex. 168, 18 S. W. 623; Browning v. Currie, 140 S. W. 479.

The third and fourth assignments are that it was error for the court to permit the plaintiff to testify as to the value of the property destroyed by the fire. The bill of exceptions shows that the defendant objected to this testimony upon the grounds that:

“Witness had not shown himself qualified to speak of the cash value of the property in El Paso at the time of the fire; that he had not been shown to have had any experience in the purchase and sale of secondhand or used household furniture and wearing apparel, either in El Paso or elsewhere, therefore had not shown him qualified to express an opinion.”
“The presumption, in the absence of a statement to the contrary in a bill of exceptions, is that the court satisfied himself by proper inquiry as to the competency of the witness to testify, * * * and the mere statement that the objection was on the ground that the witness had not shown himself qualified * * * is not enough to rebut this presumption. A party who seeks to raise such a question should show in a bill of exceptions, or in some proper manner, what examination, or that no examination, was made to test the qualification.” Hardin v. Sparks, 70 Tex. 432, 7 S. W. 770.

Besides, in this case, it is not clear that it was necessary for the witness to qualify as to market value of the goods destroyed. Pecos & N. T. Ry. Co. v. Grundy, 171 S. W. 318.

The fifth is to the action of the court in permitting witness to testify to the articles in the house and their vaiue at the time of the fire; the reason given being that witness had shown, by other statements in evidence, that he did not know what articles were in the house nor their value. The appellant has failed to cite us to a bill of exceptions supporting this assignment. Missouri, K. & T. Ry. Co. of Texas v. Maxwell, 130 S. W. 722. However, the reasons for the objections seem to be addressed more to the weight to be given to the testimony than to its exclusion.

The sixth assignment is without merit, and is for that reason overruled.

The seventh is that the court erred in permitting to be read to the jury the answer of Mrs. Eva Huff as to the list of property alleged to have been destroyed, for the reason that it showed upon its face that it was a carbon copy of the list attached to theproof of loss, and not a memoranda made by her. The record does not disclose that the list mentioned was used by. witness to in any wise refresh her memory as to any fact or item, but she simply swore that it was a correct list of the property in the house when burned. There was no error in permitting the list to be used as was done.

The eighth is that the court erred in not excluding the answer, by deposition, to the following questions: “Please give in detail the result of said fire, the extent of damages or injury to the house.” The answer was: “Everything a total loss.” The answer to this interrogatory was waived because not urged by motion before announcing ready for trial. Chicago, R. I. & I. Ry. Co. v. Trout, 152 S. W. 1137. Besides, there were many witnesses who gave the details of the fire and testified to the condition of the articles of personal property in the house, and, if error to admit this answer, it is-harmless.

The ninth, that it was. error to admit a power of attorney in evidence, because it did not tend to prove any issue in the case. The policy contained the following clause:

“Wherever, in this policy, the word ‘insured’ occurs, it shall be held to include the legal representative of the insured.”

The defendant questions the right of the agent to make the proof of loss. For the purpose of proving the authority of the agent, it was admissible.

If there were no issue in the case which this power of attorney tended to prove, we fail to see how it tended to induce an improper verdict, and the appellant has made no effort to show that it did.

Tenth assignment: If it was error to admit the proof of loss in evidence because it was sworn to before the attorney for plaintiff as notary or because he had an interest in the subject-matter of the suit. Ryburn v. Moore, 72 Tex. 85, 10 S. W. 394. It was immaterial, because, if the proof of loss required by the policy was defective for this reason,' the company should have objected to it for that reason. Insurance Co. v. Moriarity, 37 S. W. 628.

Besides, the jury having found in answer to special issue that the company denied its liability in toto, and there is evidence to support the finding, in such cases the company waives the provisions requiring proof of loss. Connecticut Fire Ins. Co. v. Hilbrant, 73 S. W. 558.

This disposes of the thirteenth, which is that the thirteenth finding of fact by the jury is not supported by the evidence. The finding complained of is that the company received and accepted the proof of loss as in-compliance with the terms of the policy. This was an immaterial issue under the facts of this case.

The fourteenth, questioning the finding of fact by the jury that the proof of loss was retained an unreasonable time, is overruled, for the reason that the proof of loss before-suit was waived, by denying liability, as-held under tenth assignment.

The eleventh assignment urges that the finding by the jury that the property was damaged beyond further use is contrary to the weight of the evidence. There is evidence to support this finding by witnesses who are not in any wise impeached. The weight of the evidence is for the jury.

The twelfth is that the finding by the-jury that the cash value of the property immediately prior to the fire was $1,000 or more is not supported, by the evidence. It is apparent that it is unnecessary to discuss-this assignment, because the judgment was-for |500, ana there is evidence to support it.

The fifteenth, charging that the find'ing that there was'no disagreement between the company and the assured as to the amount of loss is not supported by any evidence, overruled, because an immaterial issue. They did not agree upon an amount. The company had waived the provision of its policy requiring formal proof before suit or liability, by denying liability in toto; therefore it was immaterial whether there was any disagreement as to the amount of loss.

The sixteenth, seventeenth, eighteenth, and nineteenth, charging that certain findings of fact are not supported by the evidence, are overruled, because the findings are supported or are immaterial.

The twentieth in effect is that the court erred in refusing to render judgment for the defendant upon certain admissions of fact by the plaintiff. The answer is that after a careful search of the statement of facts, following the 40 odd suggestions by appellant under, or as a part of the assignment, we find no admissions which would have justified a judgment for appellant, but, on the other hand, find that the court properly rendered its judgment for plaintiff under the facts adduced and the findings of the jury.

It is therefore affirmed.
      «g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, C. J. HIGGINS, J.

license: Public Domain

text:
    DEES et al. v. CRANE.
    (No. 424.)
    (Court of Civil Appeals of Texas. El Paso.
    April 1, 1915.)
    1. Appeal and Error <&wkey;671 — Record—Assignments of Error.
    Assignments of error appearing in the brief, but not in the record, as to matters which should have been called to the court’s attention in the motion for new trial, cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. <@= 671.]
    2. Appeal and Error <&wkey;>554 — Review—Instructions — Exceptions.
    Any errors in the charge are waived; no bill of exceptions appearing to have been taken, as required by Acts 33d Leg. c. 59.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2472-2477; Dec. Dig. &wkey;> 554.]
    3. Appeal and Error <@=672 — Review — Fundamental Error.
    There being evidence and pleading to support the verdict and judgment, rendition of the judgment presents no error in law apparent on the face of the record, or fundamental error, requiring reversal, though not assigned, and though no exceptions were taken to the peremptory charge.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. <§= 672.]
    4. Pleading <&wkey;366 — Striking out Words— Effect.
    Merely striking from answer, in an action on a note, the words “defendant * * * consulted with a lawyer” presents no errors and is not a refusal to sustain his pleadings.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. § 1145; Dec. Dig. &wkey;> 366.]
    Appeal from District Court, Pecos County; W. C. Douglas, Judge..
    Action by G. Crane against R. D. Dees and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    W. A. Hadden and Howell Johnson, both of Ft. Stockton, for appellants. O. W. Williams and W. C. Jackson, both of Ft. Stockton, and J. R. Hill, of Ft. Davis, for appellee.
   HARPER, C. J.

G. Crane instituted this suit against R. D. Dees, Hedstrom, Adams, .Lewis and wife, and Jobe on a $3,075 note, executed by R. D. Dees to A. A. Hedstrom, given as part of purchase price of certain school lands. The land was afterwards sold by Dees to Adams and Gibson, who assumed the payment of the note. The state set aside the award, and Gibson and Adams repurchased. The note was acquired by appellee before maturity for value. The court gave peremptory instruction for plaintiff. Judgment and verdict rendered accordingly, from which this appeal is perfected.

The appellants’ brief cannot be considered, because not in compliance with the rules for briefing eases in appellate-courts. The brief is defective in' many respects, but it is sufficient in this instance to say that the assignments are not followed by propositions of law, as required by rule 30 (142 S. W. xiii), without which there is no point of law to pass upon, unless the assignments themselves are sufficient, to constitute propositions, and in this case they are not, but, if they were there are no statements subjoined, as required by rule 31 (142 S. W. xiii). It is urged that it was error apparent on the face of the record for the court to give a peremptory instruction in this case, as was done. '

Being no assignment of error showing that appellant had complied with chapter 59, Acts of 1913, the error is waived (Railway Co. v. Feldman, 170 S. W. 133; Wickizer v. Williams, 173 S. W. 288), unless there is no pleading or no evidence to support the verdict as directed (Harper v. Dodd, 30 Tex. Civ. App. 287, 70 S. W. 223; Hodge v. Toyah Talley Irrigation Co., 174 S. W. 334, rendered by this court, not yet officially reported).

The verdict and judgment are supported by the pleadings and evidence in this ease. The cause is therefore affirmed.

HIGGINS, J.

I concur in the affirmance of this ease for the following reasons:

First. There are no such assignments in the record as appear in appellants’ brief numbered, 1, 2, 3, 4, and 5. The matters here complained of should have been called to the court’s attention in the motion for new trial. They therefore cannot be considered.

Second. Assignments 6, 8, and 9 complain of the court’s charge. No bill of exception appears to have been taken as required by chapter 59, Acts of 1913; hence the errors therein, if any, are waived. There is evidence and pleading to support the verdict and judgment, and the rendition of the judgment presents no error in law apparent on the face of the record. If there were no evidence to support the judgment, or a want of sufficient pleadings, that would present an error in law apparent on face of the record, or, as it is sometimes termed, fundamental error, which would require reversal, even though it was not assigned, and regardless of whether or no exception was taken to the peremptory charge. Harper v. Dodd, 30 Tex. Civ. App. 287, 70 S. W. 223; Hodge v. Toyah Valley Irrigation Co., 174 S. W. 334, decided by this court, and not yet officially reported; Needham v. Cooney, 173 S. W. 979.

Third. The seventh assignment complains of error in not sustaining the defendant’s pleadings. All exceptions to such pleadings were overruled, except one which merely struck out the words “defendant Dees consulted with a lawyer.” That presents no error, and it is not apparent in what manner the court refused to sustain pleadings.

WALTHALL, J., concurs in this opinion.
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    WELLS FARGO & CO. EXPRESS v. HALE.
    (No. 7246.)
    (Court of Civil Appeals of Texas. Dallas.
    March 20, 1915.
    Rehearing Denied April 17, 1915.)
    1. Removal of Causes &wkey;>95 — Proceedings —Effect of Filing Petition and Bond.
    Where a petition and bond in due form for removal of .a cause to the federal court is filed, the state court loses jurisdiction of the cause.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 204, 205; Dec. Dig. <&wkey; 95.]
    2. Courts &wkey;>327—Federal Courts — Jurisdiction—Amount in Controversy — Amendment.
    Under the federal Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087), which increased the amount required to confer jurisdiction on the federal court from $2,000 to $3,000, and section 299 (U. S. Comp. ‘St. 1913, § 1276) of which provided that the repeal of the existing laws or the amendment thereof embraced in the act should not affect any act done or any right accruing or accrued or any suit or proceeding pending at the time of the -taking effect of the act, but all such suits and proceedings and suits and proceedings for causes arising or acts done prior to such date might be commenced gnd prosecuted within the same time and with the same effect as if said repeal or amendments had not been made, the federal court has jurisdiction over a controversy between citizens of different states for an amount hetween $2,000 and $3,000, where the cause of action arose before the Judicial Code took effect, though the action was not begun until later.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 889; Dee. Dig. <&wkey;>327.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by John C. Hale against Wells Fargo & Co. Express. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and Dinsmore, McMahan & Dinsmore, of Greenville, for appellant. H. M. Peak, of Farmersville, and N. E. Peak, Robt. F. Spearman, B. Q. Evans, and H. L. Carpenter, all of Greenville, for appellee.
   RAINEY, C. J.

This is a suit by appellee against appellant for damages for defamation of character, etc.; the appellee alleging that he was a resident of Collin county, Tex., and that appellant was a foreign corporation incorporated under the Constitution and laws of the state of but had a local office and local agent in Hunt county, Tex., naming the agent. Appellant seasonably filed its petition and bond in due form for removal of said cause to the District Court of the United States for the Northern District of Texas, at Dallas, based on the ground of diversity of citizenship, alleging that appellant was incorporated under the laws of, and had its domicile in the state of, Colorado. The bond was duly approved, but the application for removal was overruled. Exceptions were duly reserved, and the court proceeded to try the case, which resulted in a judgment for'ap-pellee, from which this appeal is taken.

The proposition is:

“The district court erred in refusing to grant defendant’s petition to remove the cause to the District Court of the United States for the Northern District of Texas, at Dallas, which petition was framed in accordance with the statutes and rules applicable, and showed on its face that the cause was removable, and was accompanied by a good and sufficient bond conditioned and payable as required by law, which bond was approved by the court, said petition and bond having been filed in said district court, and presented to the court, before a time when the defendant was required by law to plead or answer.”

There being diversity of citizenship between the appellant and the appellee, and a petition and bond in due form having been seasonably filed, and the bond having been duly approved, the district court of Hunt county lost jurisdiction of the cause, and that court erred in proceeding with) the trial of the case, but should have at once transferred it to the federal court. Railway Co. v. Harrison, 73 Tex. 103, 11 S. W. 168; Railway Co. v. Davis, 93 Tex. 386, 54 S. W. 381, 55 S. W. 562.

It is urged by appellee that by an act of Congress passed March 3, 1911, the jurisdictional amount was changed from a sum in excess of $2,000 to a sum in excess of $3,000, and went into effect January 1, 1912, and that the- District Court of the United States had no jurisdiction of this case; the amount involved being less than $3,000. Section 299 of said act provides:

“The repeal of existing laws, or the amendments thereof, embraced in this act, shall not affect any act done, or any right accruing or accrued, or any suit or proceeding, including those pending on writ of error, appeal, certificate, or writ of certiorari, in any appellate court referred to or included within the provisions of this act, pending at the time of the taking effect of this act, but all such suits and proceedings, and suits and proceedings for causes arising or acts done prior to such date, may be commenced and prosecuted within the same time, and with the same effect, as if said repeal or amendments had not been made.”

The foregoing section of said act excepts from its provisions causes of action arising before January 1, 1912, and plaintiff’s cause of action arose prior to January 1, 1912. Therefore it falls within the excepted classes and was subject to removal. This precise question was decided in Taylor v. Railroad Co. (D. C.) 197 Fed. 323, and, as the views therein accord with ours, we quote extensively as follows:

“This suit is for a cause of action arising prior to January 1. 1912. and it therefore belongs to the class which ‘may be commenced and prosecuted within the same time and with the same effect as if said repeal or amendment had not been made.’ The phrase ‘with the same effect’ must mean with the same result or with the same consequences. The intention of Congress must have been to leave a cause of action arising prior to January 1, 1912, subject to the same rules and procedure to which it would have been subject if the law had not been changed. . Counsel for plaintiff contend that the question has been decided in their favor by the Supreme Court in the cases of Washington Home for Incurables v. American Security & Trust Co. et al., and Vermillion v. B. & O. R. Co., 224 U. S. 486, 32 Sup. Ct. 554, 56 L. Ed. 354, decided April 29, 1912. In those cases the Supreme Court held that the right of appeal from the Court of Appeals of the District of Columbia, in a case pending on January 1, 1912, but not decided until after that date, was not saved by that section; that the qualifying words ‘including those pending on appeal’ excludes those not pending on appeal on January 1st. With reference to these qualifying words the court said: ‘If express words were thought necessary to save pending appeals, a fortiori such words were used.’ The question of- the right of appeal from the Court of Appeals of the District of Columbia was the only question before the court. In that case the court further says: ‘The first part of the section declaring what shall not happen is elucidated by the antithetical statement, in the last part, of what shall take place. We gather from that that all suits upon causes of action that arose before January 1st stand alike.’ That means suits, pending on January 1st, and suits brought after that date, on causes of action arising before that date, ‘stand alike.’ In pending suits in which the time for application to remove had not passed on January 1st, the right was saved by section 299. It was a ‘right accrued or accruing’ on January T. 1912.- Lincoln v. Robinson (D. C.) 194 Fed. 571. If such a suit stands on the same footing as a suit brought after January 1st on a cause of action arising before that date,. as stated by Mr. Justice Holmes in the opinion above referred to, then the right to remove the latter suit is also saved by that section. The ‘antithetical statement’ includes not only all ‘suits and proceedings’ referred to in the first part of the section, but also ‘suits and proceedings for causes arising, or acts done prior’ to January 1st. .If both classes ‘stand alike,’ and the right of removal is saved to the first, the conclusion follows that it is saved to the second also. So far as the decision of the Supreme Court can be said to be applicable here, it is opposed to the effect sought to be given to it by counsel for plaintiff in this case.”

The judgment is reversed, and the cause remanded.
      <gu»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    ANSLEY et al. v. STATE.
    (No. 7397.)
    (Court of Civil Appeals of Texas. Dallas.
    April 3, 1915.)
    Appeal and Error &wkey;?781 — Dismissal op Action — Extinction op Matteb in Litigation.
    In an action to abate-a public nuisance, where defendants appealed from an order granting a temporary injunction, upon motion by the state, supported by affidavits, to dismiss the appeal on the ground that the defendants had sold the premises alleged to have been kept as a disorderly house, the case will be dismissed the questions involved being moot whether or not a question of costs is involved.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. <&wkey;781.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by the State of Texas against Bob Ansley and others. Judgment for plaintiff, and defendants appeal.
    Cause dismissed on motion.
    McCutcheon & Church, of Dallas, for appellants. M. T. Lively, Co. .Atty., of Dallas, for the State.
   TALBOT, J.

This is an appeal from an order of the district court of Dallas county, Tex., granting a temporary injunction in the above entitled cause, restraining the appellants, Bob Ansley and Dave Williams, from keeping an alleged disorderly house on land and premises owned by theta, situated in said county and state, about seven miles north of the city of Dallas. The suit was brought in the name of the state of Texas, acting by and through the county attorney of Dallas county, and C. O. Carson, who resided with his family near said alleged disorderly house, but the writ of injunction prayed for was granted to the state of Texas alone. The -petition charged that the house and premises in question were used as a bawdyhouse, as such house is defined by our statute, and, further, that men and women of bad reputation for chastity were permitted to and did resort to said house at all times of the- night, and used loud, vulgar, obscene, indecent, and profane language and conducted themselves in a lewd and indecent manner, etc., to the great discomfort and annoyance of plaintiff, C. O. Carson, and his family, and to the irreparable injury of his property; that the noises made on said premises and the conduct of those resorting there.constituted the place a public nuisance which should be abated. ■

The appellee, state of Texas, has filed a motion in this court alleging that since this appeal was perfected the appellants have sold and disposed of the premises alleged to have been kept by them as a disorderly house and all the interest that they or either of them had in the same; and prays that this suit be dismissed. This motion is verified by affidavit, and the facts therein stated are otherwise established beyond controversy, and it must be sustained. That an appellate court will not decide questions involved in litigation when the subject-matter thereof has ceased to exist and their decision would be useless is thoroughly established by the decisions in this state. Gordon v. State, 47 Tex. 208; Lacoste v. Duffy, 49 Tex. 767, 30 Am. Rep. 122; McWhorter v. Northcut, 94 Tex. 86, 58 S. W. 720; Watkins v. Huff, 94 Tex. 631, 64 S. W. 682; Southwestern Tel. & Tel. Co. v. Galveston County, 59 S. W. 589; Old River Rice Co. v. Stubbs, 133 S. W. 494. The fact that a question of costs is involved does not alter the case. It has been uniformly held that where the subject-matter of the controversy has ceased to exist, the appeal would not be entertained merely to determine such question. The subject-matter of the controversy between the parties to the suit before u§ having ceased to exist, the courts will not try the case to determine the question of what the rights of the parties were. The rule in such eases is to dismiss the case, not the appeal, the effect of which is to annul the judgment of the court below. McWhorter v. Northcut, supra.

This cause is therefore dismissed.
      <g^5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    STEPHENVILLE N. & S. T. RY. CO. v. SCHRANK.
    (No. 5443.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 24, 1915.
    Rehearing Denied March 31, 1915.)
    1. Railroads <&wkey;443 — Construction—Injuries to Stock — Evidence.
    In an action for the death of plaintiff’s mule, resulting from injuries received by it while crossing a railroad cattle guard, evidence as to negligent construction of the guard held sufficient to support a verdict for plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. &wkey;443.]
    2. Railroads &wkey;>447 — Construction—Injuries to Stock — Instructions — Cattle Guard — Statutes.
    In an action for the death of plaintiff’s mule, resulting from injuries received by it while crossing a railroad cattle guard at the point where the track entered plaintiff’s pasture, it was not error for the court to instruct the jury as to the law of Rev. St arts. 6596, 6598, requiring every railroad to place a sufficient cattle guard at the point of entering a field and to keep it in good repair, such guard to be constructed and kept in repair so as to protect the field from the depredations of stock of every description.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. &wkey;447.]
    3. Railroads <&wkey;447 — Construction—Injuries to Stock — Instructions — Duty of Railroad.
    In an action for the death of plaintiff’s mule, resulting from injuries received while crossing a railroad cattle guard, an instruction that in order to find for the plaintiff the jury must find that the railroad failed to construct and keep in repair a sufficient cattle guard, and also that it permitted wheat and other grasses to grow on the track near the cattle guard, so that stock were thereby attracted, was more favorable than defendant was entitled to, since if the guard was insufficient, the railroad was liable, regardless of whether it permitted grass to grow thereon.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. &wkey;447.]
    4. Evidence <&wkey;219 — Admission—Act of Defendant.
    In an action for injuries to plaintiff’s mule, caused by a defective railroad cattle guard, evidence that the company had removed a guard like the one on plaintiff’s land from the land of another, and had substituted therefor a different kind of guard, was admissible as a circumstance tending to show an admission by the company that the former guard was insufficient.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 762-770; Dec. Dig. &wkey;219.]
    5. Railroads &wkey;>442 — Construction—Injuries to Stock — Admissibility of Evidence —Similar Acts.
    In an action for injuries to plaintiff’s mule received while crossing a railroad cattle guard, evidence that stock frequently passed over cattle guards of the railroad was admissible, when confined to guards like that on which plaintiff’s mule was injured.
    [Ed. Note. — For other cases, see Railroads, Gent. Dig. §§ 1596-1607; Dec. Dig. <&wkey;442.]
    Appeal from Hamilton County Court; <i. L. Lewis, Judge.
    Action by F. W. Schrank against the Stephenville North & South Texas Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Marshall Fergus on, of Stephenville, for appellant. Eidson & Eidson, of Hamilton, for appellee.
   JENKINS, J.

This is a suit to recover damages on account of injuries to a mule belonging to appellee, occurring by reason of the alleged negligence of appellant in failing to properly construct and keep in repair a cattle guard on its line, and in permitting grass, wheat, and oats to grow thereon. The guard in question is what is known as a metal guard, and was described by appellant’s roadmaster as follows:

“These guards are eight feet long and are made in four sections, two inside of the rails and two outside. The uniform width of the spikes are 2 or 2.4 inches at the bottom. They are made from about to 3/16 inch iron; that is the thickness of them. The general way of making them is to cut out pieces and turn them up, leaving a projection. They are laid flat upon the ties between the wing fences, the spikes or prongs are about 3 inches high. There must be 12 rows of them to each section, that is, a row about every 2% or 3 inches. They are about as far apart in both directions, both lengthwise and crosswise of the guard. These spikes are made by cutting the metal in V shape, and it is round on the corners. The bottom part of the V is down.”

We quote from the testimony of appellee, set out in the statement of facts, as follows, showing how the injury occurred:

“That when he first saw this mule on this occasion he saw it on the right of way, and that there was no way for it to have gotten in there except over the cattle guard. That the fence was in good repair át the time. That he saw the mule go from the right of way back into the pasture over the guard. That he did not see anything unusual about the mule, and thought it was all right, and started away and got some 25 yards away, when he turned around to see if the mule was going to the other stock, and he saw the mule come in across the cattle guard the second time. That he motioned with his hand, and saw that the mule turned and walked back over the guard into the pasture, and then noticed that she .was injured. ■ That he examined the mule and found that there was a hole in her foot, nearly an inch and a quarter deep and an inch wide. That the cattle guard was not dug out. That stock passed over it frequently.”

Thompson, a witness for appellee, testified that soon after appellee’s mule had been injured be examined the cattle guard, and that grassj oats, and wheat were growing on it, and on the track near it. The mule died from the effects of the injury. Appellant answered by demurrer and general denial. The case was tried in the county court on appeal from the justice’s court, and judgment was rendered for appellee for the value of the mule.

Appellant’s first assignment of error is on the refusal of the court to peremptorily instruct the jury to return a verdict for the defendant. In this there was no error. The evidence raised the issue of negligence, and is sufficient to sustain the.verdict of the jury in appellee’s favor on that issue. In addition to the testimony above set out, it was shown that other stock frequently crossed this cattle guard, and other of appellant’s cattle guards in the same neighborhood in all respects similar in construction and state of repair as the one on which appellee’s mule was injured.

Appellant’s second assignment of error-is that the court erred in the seventh paragraph of its charge, which is as follows:

“It was the duty of the defendant, under our statutes, to have placed a good and sufficient cattle guard at the points of entering plaintiff’s field or inclosure with its railroad, and to keep them in good repair. In all cases the statute requires that such cattle guards or stops shall be so constructed and- kept in repair as to protect such fields and inelosures from the depredation of stock of every description.”

Such is the law iu this state, and the court did not err in so instructing the jury. R. S. arts. 6596, 6598, 6600; Railway Co. v. Sproles, 47 Tex. Civ. App. 294, 105 S. W. 521.

Appellant’s third assignment complains of the eighth paragraph of the court’s charge. This paragraph was more favorable to appellant than it was entitled to. It instructed the jury that in order to render a verdict for. the appellee they must find that appellant failed to construct and keep in. repair a sufficient cattle guard, and also that it permitted wheat and other grasses to grow upon its track near said cattle guard, so that stock were thereby attracted and caused to go upon said cattle guard. If the cattle guard was not such as is required by statute, ap-pellee was entitled to recover, regardless of whether or not appellant permitted grass or wheat to grow thereon.

Appellant’s fourth assignment of error is as to the court’s permitting the witness Walton to testify, over objection, that appellant formerly had in use a cattle guard on his mother’s place “just like the one on which plaintiff claims his mule was injured,” but that appellant had taken up said cattle guard, and had erected in lieu thereof a pit guard. Appellant argues this might have been construed by the jury into an admission on the part of appellant that the metal guard was insufficient. It was permissible to prove such admission, and consequently any circumstance tending to prove the same was admissible in evidence.

Appellant’s fifth assignment of error is that the court erred in permitting appellee to prove that stock frequently passed over other of appellant’s guards. We quote from the learned court’s explanation to appellant’s bill of exceptions as to admitting this testimony, as follows:

“The witnesses were not permitted to testify as to stock crossing other cattle guards than plaintiff’s until it was shown that the guards were all alike; the testimony being undisputed that the guards over which stock passed were all alike and in the same condition, except perhaps there was more grass growing on the guard on the plaintiff’s land than on the others.”

Such being the fact, there was no error in admitting the testimony as to the other guards.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      ig=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    GULF, C. & S. F. RY. CO. v. GRAHAM.
    (No. 5476.)
    (Court of Civil Appeals of Texas. Austin.
    March 31, 1915.)
    1. Appeal and Error <&wkey;544 — Questions. Reviewable — Instructions—Bill of Exceptions.
    The giving or refusing of instructions cannot be reviewed; no bill of exceptions having been reserved to such rulings. Acts 33d Leg. c. 59; Rev. St. 1911, arts. 1971, 1973, 2061, 2063.
    [Ed. Note. — For other cases, see Appeal' and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    2. Appeal and Error ©=>760 — Bill or Exceptions — Aide» by Evidence.
    The matter of admission of a copy of a letter is not properly presented for consideration, the bill of exceptions not setting out the copy, and the brief not referring to the statement of facts showing its admission; the court not being required, in the absence of such reference, to look to the evidence in the statement of facts in aid of the bill.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. <§=760. ]
    3. Appeal and Error <§=1050 — Harmless Errob — Admission of Evidence.
    Any error in admission of a copy of a letter to defendant carrier, giving notice of the injury to a shipment, sued for, was harmless ; it not having sustained its burden, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, of showing it did not receive the notice required by the contract as a condition to action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. <§=1050.]
    4. Appeal and Error <§=1050 — Harmless Error — Admission of Evidence.
    Any error in admission of evidence was harmless; similar evidence having been admitted without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1088, 1069, 4153-4157, 4166; Dec. Dig. @=1050.]
    Appeal from Milam County Court; John Watson, Judge.
    Action by J. P. Graham against the Gulf, Colorado & Santa Fé Railway Company/ Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. Morrison & Lewis, of Cameron, for appellee.
   RICE, J.

Appellee brought this suit against appellant for damages growing out of alleged injuries to a shipment of cattle from Buckholts to Galveston over appellant’s line of railway, claiming that on the 15th of April, 1912, he made a contract with the agent of the company to furnish a car, and have the samé in readiness for this shipment on the afternoon of said day, and that, relying upon said contract, he drove said cattle to the railroad pens, but the car was not there, whereby he was compelled to hold them in the pens for a period of 27 hours, without feed or water, and that they were negligently handled en route, skinned, bruised, and delayed in transit by reason of which he suffered damage. Appellant answered, denying the allegations of the petition, and pleading the terms of the written contract under which the shipment moved requiring notice of claim to be filed within 90 days after loss occurred, which notice it alleged was not given. It likewise, pleaded that it was entitled to three days to secure cars for the shipment, and asserted that no written request therefor was ever made. There was a jury trial, resulting in a verdict and judgment for appellee for the sum of $230, from which this appeal is taken.

The first, second, third, sixth, ninth, and tenth assignments of error complain either of alleged errors in the charge of the court or of the refusal to give appellant’s requested charges. Appellee objects to a consideration of these assignments on the ground that there was no bill of exceptions reserved to such respective .rulings of the court. The record supports this contention for which reason we are not permitted to pass upon said assignments. See Gen. Laws 1913, pp. 113-114; articles 1971, 1973, 2061, and 2063, R. S.; I. & G. N. Ry. Co. v. Tate, 170 S. W. 1061; Floegge v. Meyer et al.; 172 S. W. 194; St. Louis S. W. Ry. Co. v. Wadsack, 166 S. W. 42; T. & P. Ry. Co. v. Beaird, 169 S. W. 1050; Taylor v. Butler, 168 S. W. 1004; Heath v. Huffhines, 168 S. W. 974; Case & Co. Cutlery Co. v. Folsom, 170 S. W. 1066.

By the seventh assignment it is insisted that the court erred in permitting the introduction in evidence by appellee, over the objection of appellant, of the copy of a letter written by himself on May 15, 1912, to D. W. McCloud, an officer of the company, informing him of the alleged injury to said cattle on the ground that the letter itself was the best evidence; that the absence of the original had not been accounted for; and that it was not shown that any of appellant’s officers or agents had received the original. The bill fails to set out the purported copy so offered, and appellant’s brief does not refer to the statement of facts showing that such copy was introduced in evidence, so that the point is not properly presented for our consideration, as we are not required, in the absence of such reference, to look to the evidence contained in the statement of facts in aid of the bill. See St. Louis S. W. Ry. Co. v. Demsey, 40 Tex. Civ. App. 398, 89 S. W. 786. Besides this, we think that the admission of such copy was harmless error, for the reason that the burden of proof .was upon appellant to show that it never received such notice, and it did not discharge this burden. See article 5714, Vernon’s Sayles’ Rev. Civ. Stats.; St. Louis Ry. Co. v. Honea, 84 S. W. 267. Appellant having failed to show that it did not receive such notice, and appellee in his brief asserting that he testified positively that he gave the proper written notice within 91 days after the damages were sustained, we overrule this assignment.

Appellant complains that the court erred in admitting in evidence, over its objection, the account sales of Vanderpool & Co. of said shipment of cattle, on the ground that the same was not a true and correct copy of the original. The bill fails to set out the account sales complained of; nor does the brief of appellant refer to the page of the statement of facts where such instrument may be found. We are not required to search the record in order to ascertain whether appellant was injured by the introduction of said copy. The question is therefore not properly presented for our consideration. See St. Louis S. W. Ry. Co. v. Demsey, supra; Northern Traction Co. v. Yates, 39 Tex. Civ. App. 114, 88 S. W. 285, wherein it is said:

“It is the rule in Texas, established by a long line of decisions, that a bill of exceptions should state the facts in regard to the matter of which complaint is made in such a manner as to exclude any reasonable hypothesis upon which the decision of the trial court can be explained. Every point in the bill of exceptions must be so clear and full that nothing will be left to inference or implication.”

But even if this were error, it is harmless because the record shows that similar evidence was offered, without objection; the plaintiff having testified that he shipped 49 head of cattle to Galveston, giving the amount in weight that they lost. Vanderpool also testified as to the market value of the cattle sold. Besides this, said witness testified that said copy of account sales was true and correct, and represented the number and weight of the cattle sold, the date they were sold, and the prices obtained therefor.

The remaining assignments complain of the insufficiency of the evidence to support the verdict. These were questions for the jury.

Finding no error in the proceedings of the trial court, its judgment is affirmed.

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

      ©=For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    HAMILTON COMPRESS CO. v. LAWSON.
    (No. 5436.)

    (Court of Civil Appeals of Texas. Austin.
    Jan. 27, 1915.
    On Motion for Rehearing, March 17, 1915.)
    1. Trial <&wkey;244 — Instructions — Singling out Facts.
    Though plaintiff has the burden of proving by a preponderance of the evidence, the material allegations of his petition, defendant is not entitled to select a single allegation and require the court to charge the preponderance of the evidence thereto.
    [Ed. Note. — -For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. &wkey;244.]
    2. Master and Servant <&wkey;291 — Injury to Servant — Evidence—Instructions.
    Where the petition, in an action for injury to an employé, alleged negligent failure to maintain a guard rail around machinery and to allow a platform to accumulate grease and waste, so as to become slippery, and there' was evidence that the foreman had requested employés generally to try to locate a noise and what was producing it, and had offered to pay any of the employés who would succeed in so doing, refusal to charge that there could be no recovery, unless the jury found, by a preponderance of the evidence, that the foreman sent the employé to look for the cause of the noise at the time of the accident, was not erroneous.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. &wkey;>291.]
    On Motion for Rehearing.
    3. Appeal and Error &wkey;1057 — Harmless Error — Erroneous Exclusion of
    Where the uncontradicted evidence showed that all machines of a manufacturer were erected without a guard rail, refusal to permit a witness to testify that he had seen several machines of the manufacturer, and that none of them had a guard rail, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199, 4205; Dec. Dig. &wkey;1057.]
    4. Appeal and Error <&wkey;1001 — Negligence —Evidence—Sufficiency.
    Where an employé’s personal injury action was brought on the theory of two acts of negligence of the employer, and the cause was not submitted on special issues, a verdict for the employé, justified by evidence sustaining either theory, cannot be disturbed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. &wkey;>1001.]
    Appeal from District Court, Hamilton County; J. H. Arnold, Judge.
    Action by C. T. Lawson, for himself and as next friend of his minor son, Walter Lawson, against the Hamilton Compress Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. E. Trippet, of Hico, and Eidson & Eidson, of Hamilton, for appellant. Chris. Emmett, of Victoria, and Langford & Chesley, of Hamilton, for appellee

       Writ of error pending in Supreme Court.

   JENKINS, J.

This case was before us on a former appeal upon the same pleadings and substantially the same testimony, and we refer to our opinion in 162 S. W. 1023, for a statement of the facts involved herein.

The issues of law raised by the assignments herein are the same as in the former appeal, except that raised by the second assignment, which is that:

“The court erred in refusing to give to the jury defendant’s special charge No. 1, which is as follows: ‘Unless you find, by a preponderance of the evidence, that the witness C. C. Cantrell sent the plaintiff Walter Lawson to go and look for the noise on the occasion testified to by the plaintiff, you will find in favor of the defendant. This charge is given to you as a part of the law applicable to this case, and you will consider it along with the general charge of the court.’”

It is a sound principle of law that the burden of proof is upon the plaintiff to prove, by a preponderance of evidence, all of the material allegations in his petition; but it does not follow that a defendant is entitled to select a single allegation and require the court to charge the preponderance of evidence as to such allegation, for the reason that it might indicate that the court was doubtful as to whether such allegation had been proven. We do not think, generally speaking, that much importance should be attached to the proposition that a party must prove his allegations by a preponderance of the evidence. The jury hear the evidence pro and con, and from such evidence they either believe or do not believe the allegation; and we think, in a civil case, that it would rarely make any difference in the result whether or not the jury were instructed that they must believe the allegation from a preponderance of the evidence. In this case, however, we think the court did not err in refusing to give the requested charge, for the reason that the plaintiff might have been entitled to recover under the allegations and testimony herein, although the foreman Cantrell did not instruct Lawson to try to ascertain what was producing the noise at the time he was injured. The evidence shows that Cantrell had requested the employés generally, including Lawson, to try to locate the noise and what was producing it, and that he had offered to pay any of the employes, including Lawson, who would succeed in so doing. Now, if the other allegations of plaintiff’s petition are established by the evidence, of which the jury were the judges, we think it would not have been necessary, in order for plaintiff to recover, to show' that the foreman instructed him on this particular occasion to make such search. These allegations are, in substance, that it was negligence on the part of appellant to fail to have a guard rail around the machinery, and to allow the platform to accumulate grease and waste, so as to become slippery, and that appellee was trying to locate the cause of the noise at the time of the injury, and that his injury was occasioned by such negligence on the part of appellant.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

Appellant in its motion for rehearing, as it did in its original brief, insists that the trial court committed error in refusing to permit its witnesses Wilson and Cantrell to testify that they had seen several other such compresses of the same pattern, and that none of them had a guard rail at the place where it is alleged that appellant was negligent in not having such guard rail.

We deem it proper that we should state more fully our reasons for overruling this assignment. In the first place, this testimony was not offered as expert testimony, but only to show how several other Webb presses, that these witnesses had seen, were erected. In the second place, such testimony would have been only cumulative. There was no claim that Cantrell was an expert as to the erection of compresses. The witness Wilson testified, without objection, as follows:

“My business is that of erecting compresses. Am in the employ of the Webb Compress Company. I put in the machinery in this compress here in Hamilton. This press is what is known as ‘an eight-inch compound lever press.’ This press was erected in 1911. The Webb compress is a standard press. The press is up to date, and is in use all of the time all over the country. The press in Hamilton was put up in the usual way; put up according to the plans and specifications put out by the company. The Webb Company sends out plans and specifications as to how their presses shall be constructed and installed, and this one was installed according to the plans and specifications. The Webb Compress Company furnishes a man to superintend the construction and erection of all their compresses.”

Explaining a model of the Webb Compress, he said:

“There is no guard rail around this platform (the one where appellee was injured). It would be impracticable to put one there. It would not be any safer. We put that gallery there for the purpose of oiling the press, and to put a rail there would be in the way of the oiler getting into the press.”

This testimony, in so far as it related to the manner in which all Webb presses were constructed, was not contradicted, and it would not have strengthened appellant’s defense to prove that some of said compresses were erected without a guard rail. The error, if any, in excluding such testimony, was harmless.

Our views as to charging the jury in reference to the minority of appellee are set forth in our opinion on the former appeal of this case (162 S. W. 1023), for which reason we have not repeated them in our opinion herein.

This suit was brought upon two theories, viz: One was that appellant was guilty of negligence in failing to have a guard rail, and “in permitting grease and other slippery matter to accumulate in and around unprotected, unguarded, and dangerous machinery” ; the other was in failing to instruct a minor as to the dangerous character of the place in which he was injured. The case was not submitted on special issues; hence we cannot tell upon which of these issues the jury based their verdict; and, if the evidence be sufficient to sustain either, it is our duty to sustain the verdict.

The motion for a rehearing is overruled.

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


author: LEVY, J.

text:
    ARRINGTON v. LAYDEN et al.
    (No. 1455.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 8, 1915.)
    Brokers <&wkey;88 — Actions for Compensation —Issues—Instructions.
    Where a broker sought to recover compensation for procuring a purchaser of property, pursuant to a contract of employment made by the wife of the owner as his agent, and the wife denied the employment, and the owner denied her authority to act for him, the action of the court in charging that if the broker rendered the services, the owner was liable, and in refusing to charge that, to warrant a recovery, it must appear that the owner authorized his wife to employ the broker, or knew of the employment and approved it, or did not seasonably disaffirm it, was reversible error.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. &wkey;88.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by M. M. Layden and another against P. B. Arrington. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded for new trial.

      D. A. Frank and S. P. English, both of Dallas, for appellant. Dabney & Townsend, of Dallas, for appellees.
   LEVY, J.

Appellees, real estate brokers, sued appellant, owner of a house and lot, to recover the reasonable value of services rendered in procuring a sale of the house and lot. It was alleged that the appellant, on or about February 24, 1913, acting by and through his wife, his duly authorized agent, listed the property with the appellees and employed them to find a purchaser therefor at the price of $20,000. Appellant denied the allegations, and particularly averred that his wife was not his agent, and that she did not list the property with and did not employ ap-pellees, and,, further, that appellees did not procure a purchaser. The ease was tried to a jury, and verdict was for appellees.

The court’s charge in the third paragraph authorized a recovery in favor of the plaintiffs for the value of the services rendered upon the finding by the jury “that plaintiffs rendered, services as alleged in the petition, and that the defendant was enabled thereby, or through plaintiffs’ instrumentality, to dispose of his property.” The appellant seasonably objected to the instruction upon the ground that it assumed that services were rendered under contract or request of appellant, when there was an issue of fact in respect thereto. And appellant seasonably requested a special charge to the effect, in substance, that to warrant a recovery by appel-lees on account of the listing of the property by the wife of appellant, if she did so, it must appear that the appellant authorized his wife to list the property for sale, or knew of the listing of same and approved it, or, knowing of it, did not in reasonable time disaffirm it. Appellees alleged a contract of employment through the wife as appellant’s duly authorized agent. One of the appellees testified that appellant’s wife listed the property with his firm and employed them to get a customer. The wife denied this, and appellant denied that she was authorized to list the property for him as alleged.

In view of the pleading and evidence, there was error, it is concluded, in failing to properly submit to the jury the issue complained of in the assignments in hand, requiring reversal of the judgment and remanding of the cause for another trial.
      <i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WOELFEL et al. v. McKEAN, EILERS & CO. et al.
    (No. 5440.)
    (Court of Civil Appeals of Texas. Austin.
    March 3, 1915.)
    1. Appeal and Error &wkey;> 106 — Decisions Reviewable — Intermediate Decisions — . Change oe Venue — Statute.
    Under Rev. St. 1911, art. 1833, providing for the transfer of the record upon an order changing the venue on a plea of privilege to the venue, and providing that nothing therein shall prevent an appeal from the judgment sustaining the plea of privilege, where such judgment was entered in a district court, it was reviewable in the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 726-734; Dec. Dig. <&wkey;> 100J
    2. Venue <&wkey;21 — Change oe Venue.
    In an action to enjoin suit upon an obligation alleged to have been a forgery, where it was not alleged that the defendants, resident in a county other than that of suit, had been connected in the forgery committed in the county of suit, or that they had done any act in such county for which they could be sued therein, their plea of privilege to the venue was properly sustained.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 34; Dec. Dig. &wkey;>21.]
    Appeal from District Court, Milam .County; 5. C. Scott, Judge.
    Action by John Wo elf el and others against McKean, Eilers & Co. and others. From a judgment sustaining defendants’ plea of privilege to the venue, plaintiffs appeal.
    Affirmed.
    Wallace & Moore, of Cameron, for appellants. A. T. McKean, of Austin, for appellees.
   JENKINS, J.

The petition in this case alleges that the German Mercantile Company, a corporation, executed its obligation to appellees for the sum of $2,000, and that the same appears to have been indorsed as guarantors by appellants; that said purported indorsement is a forgery, and that the names of appellants were forged thereon in Milam county, Tex., by one M. B. Leach, and that appellees are threatening to sue upon said obligation in Travis county, Tex., where appellees are alleged to reside. Prayer for injunction. Appellants dismissed their suit against said Leach. Appellees filed in the district court of Milam county their plea of privilege to be sued in Travis county. The court sustained said plea and entered judgment transferring the case to the district court of Travis county, from which judgment appellants have perfected their appeal to this court.

It will thus be seen that the only issue in the case as here presented is as to the correctness of the judgment sustaining said plea of privilege. Appellees, as an independent proposition, assert that this court has no jurisdiction of this appeal, for the reason that said judgment is not a final judgment. Said proposition cannot be sustained for the reason that the statute provides for appeals in such cases. R. S. art. 1833; Oakes & Witt v. Thompson, 125 S. W. 320; Water & Light Co. v. Ice & Water Co., 150 S. W. 259.

We overrule appellants’ assignments for the reason that it appears that the party alleged to have committed such forgery is not a party to this suit. It is not alleged that appellees were in any wise connected with the alleged forgery, nor that they have done any act for which they could be sued in Milam county. Lasater v. Waites, 95 Tex. 553, 68 S. W. 500.

Finding no error of record, the judgment of the trial court is affirmed.

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


text:
    HOUSTON & T. C. R. CO. v. BUKOWSKY.
    (No. 5452.)
    (Court of Civil Appeals of Texas. Austin.
    March 3, 1915.)
    1. Appeal and Error <&wkey;1002 — Review — Verdict— Sufficiency of Evidence.
    Notwithstanding conflicting evidence, the verdict on sufficient evidence cannot be disturbed on appeal. .
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey;> 1002.]
    2. Appeal and Error i&wkey;547 — Bill of Exception — Personal Examination out of Court.
    The bill of exceptions does not show error, in refusal, at the trial, to permit a physician for defendant, outside the courtroom and not in the presence of the jury, to examine the foot of plaintiff, for alleged injury to which he sued, with the view of showing he was malingering; it not showing a full and complete examination could not have been made in the courtroom and the presence of the jury, or that the physician had been subpoenaed, or that his testimony could have been obtained by a reasonable postponement.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. <S&wkey;547.]
    Appeal from District Court, Travis County ; Chas. A. Wilcox, Judge.
    Action by Emil Bukowsky against the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Garrett & Garrett, of Austin, for appellant. Dickens & Dickens and A. S. Phelps, all of Austin, for appellee.
   RICE, J.

This suit was brought by appellee against appellant to recover damages for personal injuries alleged to have been sustained by him on the 20th of November, 1913, while he was in the employ of appellant as a fireman on one of its switch engines, alleging that he was permanently injured by reason of the negligence of appellant in having a defective apron on its engine, whereby his foot was caught and severely mashed while he was returning from getting a drink of water, and also that appellant’s servant was negligent in starting the engine without warning him that he was going to do so. Appellant denied each ground of negligence charged, likewise plead contributory negligence, and specially denied that appellee was injured as claimed by him. There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted.

Appellant assails the verdict on the ground that there was no evidence showing negligence on its part, and likewise asserts that appellee was not injured. There was evidence going to show that, notwithstanding it was the duty of appellant’s engineer to give warning before starting the engine, this was not done; and on account of this, as well as the defective condition of the apron on the engine, appellee was injured. It is true that this was a contested issue, but the jury have resolved the same in favor of appellee; and there being sufficient evidence to support the verdict in this respect, as well as that appellee was severely injured by reason of this negligence on the part of appellant, it cannot be set aside by us on this account. Appellant also assigns error on the failure of the court to charge the jury on the subject of accident. We think the evidence fails to raise this issue, however; and, while it did present the issue of contributory negligence, the court’s charge covered this feature of the case, and the verdict finding in favor of appellee thereon will not be disturbed by us.

The chief contention urged by appellant is that the court erred in refusing to permit Dr. Wooten and another physician to examine appellee’s foot outside of the courtroom, and, not in the presence of the .jury, with the view of determining whether or not he was in fact injured as claimed by him, and thereafter testifying as to the result of their examination, claiming that such examination would have disclosed that appellee was malingering, and that his foot Was not in fact injured. It appears from the bill that Dr. Watt, appellee's physician, testified that about the 10th of January, 1914, he examined appellee’s foot and found it seriously injured. On the trial appellee exhibited his foot, and Dr. Watt, testifying before the jury, pointed out how it was injured, and stated that in his opinion it was a permanent injury. The bill also shows that appellant’s physician, Dr. Joe Gilbert, shortly after the injury, had thoroughly examined appellee’s foot, and testified that it disclosed no injury whatever; that about six weeks before the trial he' again examined it with a like result, and also examined his foot in the presence of the jury, stating that there were no indications whatever of any injury. The court remarked to counsel that if Dr. Wooten was present he could testify asi a witness. The bill fails to show thaC Dr. Wooten had been subpoenaed, and likewise fails to show that a full and complete examination could not have been made by him and other physicians in the courtroom and in the presence of the jury; and there was no motion to postpone the case in order to obtain his testimony, 'nor does it appear that his testimony could have been obtained by a reasonable postponement of the trial. Where the plaintiff, voluntarily submits to a personal examination in the presence of the jury by physicians of his own selection, who testify with reference thereto, then it would be error to refuse to permit the opposite side to examine him by its physicians for the purpose of controverting the result of the examination as testified to by his own witnesses; and for this purpose, if it is made to appear that such examination cannot be made by the opposing witnesses in the presence of. the jury, it would be the duty of the court to permit them to make such examination apart from the jury. See, G. H. & S. A. Ry. Co. v. Chojnacky, 163 S. W. 1011; C., R. I. & T. Ry. Co. v. Langston, 19 Tex. Civ. App. 568, 47 S. W. 1027, 48 S. W. 610; Id., 92 Tex. 709, 50 S. W. 574, 51 S. W. 331; H. & T. C. R. R. Co. v. Anglin, 99 Tex. 349, 89 S. W. 966, 2 L. R. A. (N. S.) 386; Haynes v. Town of Trenton, 123 Mo. 126, 27 S. W. 622. The instant case, however, does not come within this rule.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    DYKE et al. v. FARMERSVILLE MILL & LIGHT CO.
    (No. 1438.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 27, 1915.
    Rehearing Denied April 8, 1915.)
    1. Bankruptcy &wkey;>195 — Adjudication — Effect.
    Where, within four months after the levy of an attachment, the debtor was adjudicated bankrupt, the attachment was vacated, and other persons claiming the attached property may question the validity of the lien on that ground.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 296-305; Dec. Dig. <&wkey;>195.]
    2. Judgment <&wkey;649 — Conclusiveness—Matters Concluded.
    A judgment that plaintiff was not entitled to attached property because the debtor became a bankrupt within four months after attachment is not an adjudication that other creditors were entitled to the property.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1161; Dec. Dig. &wkey;649.]
    Appeal from Camp County Court; G. W. Keeling, Judge.
    Action by the Farmersville Mill & Light Company against one Albright, in which C. A. Dyke and another intervened, claiming attached property. From a judgment for plaintiff, defendants appeal.
    Reversed.
    Warren & Briggs, of Gilmer, and E. A. King, of Pittsburg, fOr appellants. W. R. Heath, J. D. Bass, C. G. Engledow, and M. M. Smith, all of Pittsburg, for appellee.
   WILLSON, C. J.

Having commenced suit (No. 406 on the docket of the county court of Camp county) against one Albright to recover a debt claimed to be due to it from him, appellee on March 1, 1913, had a writ of attachment issued and levied on a car of corn as the property of said Albright. Appellants claimed the corn, and on said March 1, 1913, as authorized by the statute (Vernon’s Statutes, art. 7769 et seq.), filed an affidavit and bond to try the right of property in same. This appeal is from a judgment in favor of appellee rendered October 21, 1914, in the trial of right of property suit.

At the trial it was shown that Albright was insolvent at the time the writ was levied on the corn; that within four months thereafterward he was adjudged a bankrupt; and that the indebtedness appellee claimed against him was scheduled in the bankruptcy proceedings. It was also shown that the bankrupt court, by an order duly made, had discharged Albright from debts provable against his estate. Appellants insisted in the court below, and insist here, that the effect of the bankruptcy proceedings was to vacate the lien created by the levy of the writ of attachment. Appellee does not deny that such was the effect as to the trustee in bankruptcy, but insists that he alone was entitled to assert it. Its contention seems to be supported by the decision of the Court of Civil Appeals in Hutchins v. Cantu, 66 S. W. 138, and by decisions of the Supreme Courts of Massachusetts (Frazee v. Nelson, 179 Mass. 456, 61 N. E. 40, 88 Am. St. Rep. 391), New Hampshire (Lumber Co. v. Locke, 72 N. H. 22, 54 Atl. 705), and Georgia (McKenney v. Cheney, 118 Ga. 387, 45 S. E. 433), and to be opposed by the decision of the Supreme Court of this state in Bank of Garrison v. Malley, 103 Tex. 562, 131 S. W. 1064. And see Id., 132 S. W. 1198. Following, as we think we should, the ruling made by the Supreme Court of this state, we overrule appellee’s contention, and hold that, as appellants could and did show that the lien appellee had acquired on the corn had been vacated, the judgment in its favor was without a basis to support it, and therefore was unauthorized. The judgment will be reversed, and judgment will be here rendered that appellee take nothing as against appellants, and that the latter recover of the former the costs of this court and of the court below. The trial court found that appellants were not the owners, nor entitled to the possession, of the corn. Whether they were or not has not been determined by this court, and the judgment to be rendered here shall not be construed as determining that question.
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    SPEARMAN et al. v. CONNOR BROS.
    (No. 1407.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 1, 1915.)
    1. Vendor and Purchaser <&wkey;281 — Enforcement of Lien — Renewal Note — Burden of Proof.
    In an action on a renewed vendor’s lien note, wherein one of the defendants filed a plea of non est factum as to the renewal, the burden of proving that he signed the renewal note or authorized another one to sign it for him was on the plaintiff.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 792-794; Dee. Dig. <@¿3281.)
    2. Vendor and Purchaser'<@=281 — Vendor’s Lien — Renewal Note — Sufficiency of Evidence.
    In an action on a vendor’s lien note, evidence held insufficient to show that one of the defendants was authorized by the other defendant to sign his name to a renewal of the note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. <@=281.]
    8. Vendor and Purchaseri <@=266 — Lien Note — Renewal by One of Two Makers— Effect.
    The renewal of a vendor’s lien note by one of the makers revived his personal obligation, and also the lien against his undivided half interest in the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. <§=266.)
    4. Vendor and Purchaser <@=266 — Liens— Priority.
    Where the first vendor’s lien note was barred by limitations, the holder lost his priority over the second lien note, and the revival of the first holder’s lien did not restore its priority, but made it subordinate to that of the holder of the second note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. <@=266.)
    Appeal from District Court, Morris County ; H. F. O’Neal, Judge.
    Action by Connor Bros. against John and Rob Spearman, in which A. M. Rhyme intervened, seeking a judgment against defendants. Judgment for plaintiffs and for intervener, and defendants and intervener appeal.
    Reversed and remanded for a new trial.
    T. D. Rowell, of Jefferson, for appellants. Henderson & Bolin, and J. H. French, Jr., all of Daingerfield, for appellees.
   HODGES, J.

Connor Bros., the appellees, brought this suit against John and Rob Spearman upon a note for the sum of $574.-17, dated December 5, 1904, and upon its face due April 1, 1905. It is alleged that the note was originally payable to W. W. Watkins, and was given as a part of the purchase price of a tract of land sold by Watkins to John and Rob Spearman, and that a vendor’s lien was retained in the note to secure its payment. It is further alleged that on April 4, 1910, John and Rob Spearman renewed the note, and thereby again became liable and bound to pay the same according to its tenor and effect. The petition also sought a foreclosure of the vendor’s lien reserved in the note. After the filing of this petition A. M. Rhyme intervened in the suit, and interposed certain'exceptions to the sufficiency of the plaintiffs’ petition. He then pleaded as a basis of his right of intervention that in December, 1904, Watkins and others conveyed the land referred to in the plaintiffs’ original petition and took in payment two vendor’s lien notes, one for $545.-85, due April, 1905, and another for $500, due January 1, 1906; that in due course of trade the intervener purchased from Watkins the last-mentioned note, together with his equitable lien on the land. He then sets up his lien and asks for a judgment against John and Rob Spearman for the sum of $500, together with interest and attorneys’ fees, and that his vendor’s lien be foreclosed. He further prays that, in the event plaintiffs recover judgment on the note sued on by them, with the foreclosure of the vendor’s lien, it be provided in the judgment that the plaintiffs and intervener be awarded the proceeds of the sale of the land, after deducting costs, in proportion to the amount of the judgment each recovers. The defendants answered by pleas of payment and of limitation; and Rob Spearman filed a separate plea denying under oath the execution of the renewal relied on by the plaintiffs to defeat the plea of limitation. Upon a trial before the court a judgment was rendered in favor of the plaintiffs and the intervener against John and Rob Spearman for the amount of their respective claims. Judgment was also rendered in favor of the plaintiffs and the intervener foreclosing their liens on the land described in their petitions, and directing a division of the proceeds of the sale according to the amounts of their respective claims. From that judgment both the intervener and the defendants have appealed.

The court made specific findings of fact which fully sustain his judgment. He finds as a fact that John Spearman signed his brother Rob Spdarman’s name to the renewal of the note sued on by the plaintiffs, that John Spearman had authority from Rob Spearman to sign his name in that manner, and concluded that this transaction was binding upon Rob Spearman. The sufficiency of the evidence to sustain that finding is challenged in one of the assignments of error.

Upon the filing of the plea of non est factum by Rob Spearman the burden of proving that he signed the renewal contract, or authorized some other party to sign for him, was imposed upon Connor Bros.

The evidence shows that Rob Spear-man’s name was signed during his absence by his brother John. The latter testified that he did this at the instance of Connor, and without any authority from his brother. There is nothing in the record to contradict this testimony or to show that Rob Spearman afterwards ratified what John Spearman had done. The court based his findings as to that issue upon the custom of the Spearmans in conducting their business. It appears that there existed a copartnership known as Spearman & Son, composed of Rob Spearman, Sr., the father of John Spearman and Rob Spearman, Jr., and John Spearman was accustomed to sign the name of his father to notes given by the firm in the course of their business. But, according to the undisputed testimony, the note involved in this suit was not the obligation of Rob Spearman, Sr., but of Rob Spearman, Jr. It is true that the evidence shows that John Spearman signed his brother’s name to the note originally, but he says he was authorized to do that. There is no evidence that he habitually signed his brother’s name to notes and other instruments.

The renewal of the note by John Spearman revived his personal obligation, and also the vendor’s lien upon his undivided half interest in the land.

Whatever position Rhyme may have originally occupied by reason of holding the second note assigned, Connor Bros. lost their right of priority when their note became barred by limitation. The revival of their lien after having once become extinct did not restore its priority, but made their lien subordinate to that of Rhyme. Hence they could not claim the right to share equally with Rhyme in the proceeds of the foreclosure sale, if these were insufficient to satisfy both debts. It may be, however, that the manner in which that question is raised in the record would not justify a reversal of the judgment upon that ground alone. Rhyme’s pleadings would probably have to be amended to obtain this relief upon another trial.

We think the ends of justice can best be promoted by reversing this judgment and remanding this cause for another trial.
      For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KNIGHT et v. ENGLAND et al.

    (No. 1446.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 15, 1915.
    Rehearing Denied April 22, 1915.)
    1. Appeal and Error <@=31002 — Review — Findings.
    A finding of fact by the trial court will not be disturbed because the evidence, which was conflicting, might have justified an opposite conclusion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <@= 1002.]
    2. Appeal and Error <@=719 — Assignments op Error—Sufficienct.
    An assignment of error, not filed in the trial court and appearing for the first time in appellant’s brief, need not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §.§ 2968-2982, 3490; Dec. Dig. <§=719.]
    3. Appeal and Error <@=499 — Presentation of Grounds or Review in Court Below—Objections—Necessity.
    Where the record did not show that appellants objected to rendition of judgment on the last day of the term, the objection cannot be urged on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§= 499.]
    Appeal from District Court, Delta County; A. P. Dokoney, Judge.
    Action by J. G. Matthews, as next friend, for Izoriah Knight and another against A. D. England and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    J. G. Matthews, of Greenville, for appellants. Clark & Leddy, of Greenville, and A. T. Stell, N. Phillips, and Patteson & Patteson, all of Cooper, for appellees.

       Writ of error pending in Supreme Court.

   HODGES, J.

This suit was instituted, by J. G. Matthews as next friend for Izoriah and J. N. Knight, to recover a tract of 91 acres of land which had theretofore been conveyed by the Knights to A. D. England, one of the defendants below. The petition alleged, in substance, as a ground for the recovery of the land, that Izoriah and J. N. Knight were, at the time of the execution of the deed, mentally unsound and incompetent to transact that class of business. It is further alleged that the price paid for the land was grossly inadequate, and the petition rather indirectly charges fraud on the part of England in procuring the execution of the deed. In a trial before the court a judgment resulted in favor of the appel-lees, defendants below. '

The facts of the case are clearly stated in the findings filed by the honorable trial judge, which we here adopt, and are as follows:

“First. I find that on or about the 5th day of October, A. D. 1912, the plaintiff Izoriah Knight, wife of J. N. Knight, plaintiff, was the legal and equitable owner in her own separate right of the property described in plaintiff’s original petition.
“Second. I find that on the 5th day of October, 1912, the plaintiffs, by their deed in writing, duly signed and acknowledged, transferred, and conveyed said property to the defendant A. D. England, in consideration of certain horses, mules, other personal property, and the sum of $275 in money, all of the total value of $1,000.
“Third. I find that the plaintiff Izoriah Knight knew and understood, prior to the time, of signing and delivering the deed, the nature' and character of the consideration which her husband, J. N. Knight, was then and there receiving for the same.
“Fourth. I find that the defendant A. D. England, on or about the 5th day of October, A. D. 1912, conveyed the premises to the defendant C. G. George, for certain horses, mules, the sum of $300 in money, and other personal property, all of the total value of $1,100.
“Fifth. I find that the defendant O. C. George, on or about the 18th day of October, A. D. 1912, conveyed the premises -to the defendant J. M. Carver, in consideration of the sum of $1,250 in cash.
“Sixth. I find that J. M. Carver, on or about the 19th day of October, A. D. 1912, conveyed the said premises to the defendants Mrs. R. B. Manley, a feme sole, and A. A. Manley, in consideration of the sum of $740 cash, and the execution and delivery of two certain promissory vendor’s lien notes, one for the sum of $265, due December 1, 1913, and one for the sum of $1,500, due December 1, A. D. 1917, each note bearing interest from date October, 1912, at the rate of 8 per cent, per annum.
“Seventh. I further find that the first National Bank of Cooper, Tex., is the owner and holder of said two notes and the equitable holder of the lien on said premises securing the same.
“Eighth. I find that the plaintiff Izoriah Knight, on the 5th day of October, 1912, was of sound mind and a woman of more than ordinary intelligence, taking into consideration her limited educational advantages and opportunities and lack of mental training, and that she was fully competent to understand and appreciate her property rights and the nature and effect of her action in making the conveyance to England of the land in controversy, and that at said time she possessed sufficient will power to exercise proper discretion in selling said property; that she had transacted her own business affairs with intelligence for a number of years, and that members of her family dealt with her in a business way, and that at the time of the conveyance to England she was fully competent and capable to transact her ordinary business affairs, and had the mental capacity to understand and appreciate, and did understand and appreciate, the nature and effect of the transaction then had with said defendant.
“Ninth. I further find that the plaintiff J. N. Knight, on the above date, was of sound mind and a man of ordinary intelligence, taking into consideration his lack of education and mental training; that he was fully competent to understand and appreciate the nature and effect of the conveyance made by him to the defendant England at said time, and that he did so understand the same, and that he had sufficient will power to exercise proper discretion in the protection of his property rights in the conveyance of said land.
“Tenth. I further find that the defendant England purchased said land at the instance and request of the plaintiffs, and that he was not guilty of any fraud or misrepresentation in procuring the deed from the plaintiffs to the land in controversy.
“Eleventh. I further find that the consideration received by the plaintiffs from the defendant England was used by them to pay for necessaries of life for themselves and to pay debts contracted by them for such necessaries, and that no offer has been made by said plaintiffs during said trial to return said consideration.
“Twelfth. I further find that on October 5, 1912, the property in controversy was of the reasonable market value of $2,000.
“I conclude, as a matter of law from the facts above, that the conveyance of the land in controversy duly executed and delivered by the plaintiffs, Izoriah Knight and J. N. Knight, to the defendant A. D. England, and the conveyances delivered from one defendant to the other defendants in the succession and order set out in the findings of fact were and are valid and legal, and that the same conveyed title to said premises to said defendants, and that the plaintiffs are not entitled to recover the land sued for, judgment being accordingly entered for the defendants.”

The assignments of error presented in the appellants’ brief attack the second, third, eighth, ninth, and tenth paragraphs of the foregoing findings, upon the ground that they were not supported by the evidence. We have carefully examined the testimony and find ample support for the findings made. The most that can be said is that there was a conflict upon which the court might have reached a contrary conclusion. It appears that both J. N. Knight and his wife was placed upon the stand as witnesses, and that they were examined at some length. They were therefore under the immediate observation of the trial judge, who was thus enabled to form an opinion, from the manner in which the parties testified, as to the degree of mental capacity they possessed. We feel that it would be little short of usurpation for this court to set aside findings made under conditions shown by the record before us.

The appellants also have in their brief an assignment which attacks the action of the court in rendering judgment upon the last day of the term. This assignment was not filed in the trial court, and appears for the first time in the appellants’ brief. That fact is sufficient to justify this court in disregarding the assignment. But, even assuming that it should be considered, nothing is shown which would justify us in disturbing the judgment rendered. It does not appear from anything in the record before us that the appellants objected to the rendition of a judgment on the last day of the term of the court, and without some evidence that such ^proceeding was not acquiesced in, they cannot now complain. Harris v. Harris, 50 Tex. Civ. App. 188, 109 S. W. 1138.

The judgment of the district court will therefore be affirmed.
      For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GASSAWAY et al. v. BROWNING et al.
    (No. 423.)
    (Court of Civil Appeals of Texas. El Paso.
    March 26, 1915.
    On Rehearing, April 22, 1915.)
    Insurance <@=>580 — Right to Proceeds — Vendor and Purchaser.
    Where the purchaser of lands gave purchase-money notes secured by a vendor’s lien, a subsequent purchaser, taking subject to the lien, but assuming no liability on the notes, who insured the premises for his own benefit, as against the plaintiff who by regular conveyance had become the owner of the vendor’s lien, was entitled to the proceeds of the policy.
    FEd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1439-1443; Dee. Dig. <@=>580.]
    Appeal from District Court, Ector County; S. J. Isaacks, Judge.
    Action by M. B. Gassaway and others against W. H. Browning, Jr., and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Chas. Gibbs and Earl Anderson, both of Midland, and E. M. Whitaker, of El Paso, for appellants. W. A. Hudson and E. C. Canon, both of Pecos, for appellees.
   Findings of Fact.

HIGGINS, J.

J. J. Henderson conveyed to E. A. Bigham certain premises upon which a house was situate of the value of $2,750 or more. In part payment Bigham executed purchase-money notes to secure payment of which a vendor’s lien was expressly retained in the deed of conveyance. Bigham conveyed the premises to E. L. Hunter, who, in turn, conveyed to Browning. The latter purchased the premises subject to the lien of the purchase money, but assumed no personal responsibility upon the notes. The notes were transferred to M. B. Gassaway, who by regular conveyance became the owner of the superior title reserved to secure the payment of the notes. The Hartford Eire Insurance Company issued to Browning a policy, insuring the house upon the premises against destruction by fire. Browning paid the premium. The house burned, and there is now payable upon the policy the sum of $1,900 which was paid into the registry of the court by the insurance company. There is now due and unpaid upon the purchase-money notes the sum of $2,450.50. The value of the premises was $4,000 prior to the destruction of the house; since its burning the premises are of the value of $1,250. The insurance policy did not provide for the payment of any portion of the loss to the holder of the notes. Browning procured the policy of insurance for his own benefit. It provided that the company should, in event of fire, pay the assured $2,000, or, at its option, would replace the house. The deeds under which Browning held did not require him to keep the improvements insured for the benefit of the holder of the purchase-money notes, nor does it appear that he otherwise agreed to do so. This suit is by Gas-saway to recover upon the purchase-money notes, to foreclose the vendor’s lien, and to subject to the payment of the notes the amount due upon the policy of insurance. Judgment was rendered ordering the money paid to Browning, and Gassaway appeals. The sole question is Gassaway’s right to recover the moneys due upon the policy under the facts stated.

Conclusions of Law.

In Cameron v. Fay, 55 Tex. 58, it was held that a mechanic’s lien upon improvements situate on a homestead did not attach to a policy of insurance covering the improvements or to moneys due thereon after fire. This particular holding was not in any wise founded upon the exempt character of the property, but was based upon the well-settled rule that the policy is a strictly personal contract, and does not attach to the lien or realty, and, in the absence of an agreement upon the part of the lienor that the premises shall be insured for the benefit of the lien creditor, the latter has no claim upon the policy or its proceeds. To the same effect is Ward v. Goggan, 4 Tex. Civ. App. 274, 28 S. W. 479, and Porter v. Porter, 2 Willson, Civ. Cas. Ct. App. § 433.

So far as we are advised, all of the authorities are to the same effect, and hold that, in the absence of such an agreement, or of a clause in the policy making the loss payable to the mortgagee, or of an assignment to him, the mortgagee has no interest in a policy taken out by the mortgagor upon his own interest. 4 Cooley’s Briefs on Insurance, p. 3699; 19 Cyc. 884-887; Jones on Mortgages (2d Ed.) § 401.

In the case at bar there was not even a personal obligation upon Browning’s part to pay the plaintiff’s debt. Upon no possible theory could it be contended that the proceeds’ of a policy which he had taken out for his own benefit could be applied to the liquidation of a debt for the payment of which he had assumed no personal responsibility.

Neither is there any reason apparent why the same rule should not apply in the ease of a vendor’s lien as in mortgage or other liens. The reasons for the rule are in no wise founded upon the character of the lien.

There is nothing in Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742, opposed to this view. In that case it was simply held that, upon involuntary conversion of homestead improvements into money, the same (proceeds of fire insurance policies) would be impressed with the same exempt character as attached to the improvements.

Affirmed.-

On Rehearing.

In response to request so to do, we find that the fund in controversy herein has been deposited in the registry of the court by the Hartford Fire Insurance Company, and is subject to the order of the court.

The motion for rehearing is overruled.
      <©=eFor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes