author: LEVY, J.

text:
    TEXAS MIDLAND R. CO. v. TRUSS.

    (No. 1631.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 2, 1916.
    Rehearing Denied May 11, 1916.)
    1. Carriers <§=>318(2) — Injuries to Passengers — Obsteuctions at Stations — Negligence — Evidence.
    Evidence held to show that defendant railroad was negligent in maintaining a signal operating rod at a height of 5 feet 7 inches above the ground in front of its station over a portion of the platform over which passengers were accustomed to walk.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. <§=>318(2).]
    2. Carriers <@=>318(2) — Injuries to Passengers — Obstructions at Stations — Negligence — Evidence.
    Evidence held to show that defendant railroad’s negligence in maintaining a signal operating rod at a height of 5 feet 7 inches from the platform in front of a station over which passengers were accustomed to walk was the proximate cause of the injury to plaintiff, who in attempting to board a train received severe injuries about the head by striking the rod.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. <©=>318(2).]
    3. Carriers <©==>346(1) — Injuries to Passengers— Obstructions at Stations —Contributory Negligence — Evidence.
    Evidence held to show that plaintiff, who was injured by striking his head on a signal operating rod at a height of 5 feet 7 inches above a station platform, located at a place where passengers were wont to walk, was not guilty of contributory negligence in hurrying past such point for the purpose of taking a train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dee. Dig. <@=>346(1).]
    4. Appeal and Error <©=>1002 — Scope oe Review — Conflicting Evidence.
    Where the .evidence conflicts as to the extent of injuries suffered by an intended passenger, so that the verdict of the jury as to the amount of the damages has evidence to support it, it will be sustained.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <©=> 1002.]
    5. Carriers <©=>347(3) — Injuries to Passengers — Obstructions at Stations — Contributory Negligence —Questions for Jury.
    Under the evidence, held that it was for the jury whether an intended passenger, who rushed past a station platform with the intention of taking a train and struck an iron rod, 5 feet 7 inches from the ground, with his head, was guilty of contributory negligence in failing to see the rod.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. 55) 1355, 1356, 1363-1366, 1402; Dec. Dig. <@=>347(3).]
    6. Continuance <©=22 — Right to Continuance-Prejudice.
    An application for a continuance, made on the ground of correcting depositions because a witness failed to locate definitely the injuries to the plaintiff, need not be granted, and no error or prejudice would result where the depositions showed that there was some injury to the plaintiff’s forehead.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. <@=>22.]
    7. Negligence <©=>131 — Evidence—Admissibility.
    It is ordinarily the rule that evidence of repairs after an accident is not admissible to prove antecedent negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 255, 256: Dee. Dig. <©=>131.]
    8. Carriers <@=>317(1) — Injuries to Passengers — Evidence — Admissibility — Repairs.
    Where a railroad defended an intended passenger’s action for injuries on the. ground that it was necessary to operate its signal to maintain the rod which the passenger struck at the height at which it was maintained, evidence that after the accident the rod was raised one foot is admissible to show that it was not necessary to maintain the rod where it was when plaintiff was injured.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1295; Dec. Dig. <©=>317(1).]
    Appeal froni District Court, Hunt County; A. P. Dohoney, Judge.
    Action by A. D. Truss against the Texas Midland Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The appellee, intending to board appellant’s train as a passenger, was injured on the depot platform at Cash by striking his heaa against an iron rod that was maintained to operate the signal board for the trains, ihe rod extended out of the ticket and. telegraph office -of the depot building, and connected with the signal post located on the platform between 3 and 4 feet from the wall of the building. The rod was 5 feet 7 inches aboye the ground. Appellee sues for damages, alleging that his injuries were proximately caused by the negligent failure of appellant company to have and maintain the operating rod at sufficient height" above the depot platform to enable passengers to safely use the platform. The appellant denied the allegations, and pleaded that appellee himself was guilty of negligence, in that he failed to use care to see the signal post and iron rod, which were in plain view and obvious to every one, and the accident occurred in the daytime, and, further, that appellee was guilty of negligence, in that there was ample space between the signal post and the outer edge of the platform for the public to pass and transact business, and that it was not intended, as appellee in fact knew, for passengers to pass between the signal post and the building. The defendant further pleaded that if appellee was injured, such injury was slight and temporary. The case was tried before a jury, and the verdict was in favor of the plaintiff.
    The railroad runs north and south. The depot is on the west side of the main line, and fronts east. North of the white waiting room, and opposite and between 3 and 4 feet from the telegraph office, is the signal post. The operating signal rod, which is 5 feet 7 inches above the ground, is about the size of a man’s thumb. Appellee was a man 6 feet tall. Appellee testified, in substance, that on the morning of March 1, 1914, he went to the depot to take the train for Green-ville, but he arrived too late for the steam passenger train and waited for the motor car. The motor car lacked 20 minutes of being due. He bought a ticket. "While he was standing there the agent asked him if he would take some silver and have the bank exchange it for currency, which he agreed to do. He then went to Mr. Stiles’ store, which was west and in the immediate rear of the depot; and, after remaining at the store some 15 or 20 minutes, hearing the motor car coming, he returned to the depot hurriedly, passed around its south end, and then turned north to go to the telegraph office to get the money from the agent, and in going between the signal post and the depot building his head struck forcibly against the operating rod. Appellee testified that he had been to the agent to take the train about three times before this time, and had seen the signal post standing on the depot platform, but had not noticed that an operating rod was there; that at the time he struck his head on the rod he was going fast, and did not notice that it was there, or that he was at that point. Appellant proved that in a previous written statement by appellee he said:
    “I knew the rod was there, but I ran around the depot in a hurry to get the agent’s money and forgot about it being there.”
    But appellee denied that he stated that he “knew the rod was there.” When passenger trains stopped for this station they usually stopped east of the waiting room. The surface of the depot platform between the signal post and the depot building was the same, and all parts of the platform and this space were commonly and customarily used by the public.
    Coke & Coke and S. W. Marshall, all of Dallas, Dashiell & Coon, of Terrell, and Dins-more, McMahan & Dinsmore, of Greenville, for appellant. Evans & Shields, of Green-ville, for appellee.

       Application for writ of error pending in Supreme Court.

   LEVY, J.

(after stating the facts as above).

The verdict of the jury involves the findings of fact that the appellant company was negligent in maintaining the rod at the height it was, as pleaded; that such negligence proximately caused the injury to ap-pellee; and that appellee was not guilty of contributory negligence. There is evidence to support these findings, and they are sustained and here adopted.

The evidence is conflicting as to the éxtent of the injuries suffered by appellee; and, as a consequence, the verdict of the jury as to amount of damages having evidence to support it, is sustained.

It is believed that the question of whether or not the appellee was guilty of contributory negligence in striking against the operating rod was for the determination of the jury upon consideration of all the circumstances, and their decision in that respect should be sustained. Lee v. Railway Co., 89 Tex. 588, 36 S. W. 63. Therefore assignments of error Nos. 1 and 2 are overruled.

The court did not err, we think, in refusing the special charge made the basis of the third assignment of error.

The overruling by the court of an application for continuance is made the basis of the fourth assignment of error. An application for continuance for the term was made on the regular call of the case on May 31, 1915, and was overruled, but the trial was postponed by the court to June 14, 1915. On June 14th the defendant renewed his application for continuance, and the court overruled it. This application to continue was made to correct depositions given by a witness. The interrogatory propounded to the witness was, “Did you notice any place on his face, forehead, or head where he had been hit by the rod; if so, where was it?” The answer was, “I noticed a little splotch on his forehead.” The appellant contended that the witness failed in his answer to locate definitely the injured spot on the appel-lee’s forehead. It is believed that no injury resulted to appellant in overruling tlie application, and tlie assignment of error is overruled.

By the fifth assignment of error complaint is made of the ruling of the court respecting the admission of evidence over the objection of appellant. The appellee proved by the witnesses Dainwood and Morgan that since the injury the company has raised the height of the operating rod one foot. It is ordinarily the rule that evidence of repairs after the accident is not admissible to prove antecedent negligence. But appellee says it was offered here and became proper on the issue made in appellant’s answer, wherein it was pleaded:

“That in order that defendant’s said telegraph operator could work the said signals from his desk within the said office, it was necessary that the said iron rod should be placed at about the height it was placed above the platform, and that so placing the said rod for the purpose of operating the said signals was a proper and reasonable device.”

In this view the evidence would not be incompetent for the purposes for which it was offered of showing that to raise the height would not interfere with operation of the rod. Armour & Co. v. Morgan, 151 S. W. 861.

We have considered the remaining assignments of error, and have reached the conclusion that they do not warrant reversing the judgment; and therefore each of the assignments of error is overruled. Affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    JOACHIM et al. v. HAMILTON et al.

    (No. 7163.)
    (Court of Civil Appeals of Texas. Galveston.
    April 20, 1916.
    Rehearing Denied May 18, 1916.)
    1. Appeal and Error @=>1165 — Reversal for Lace op Statement op Facts.
    Where appellant has been deprived of a statement of facts, material to his appeal, without fault or negligence of himself or counsel, he is entitled to reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4522; Dec. Dig. @=>1165.]
    2. Appeal and Error @=>1165 — (Reversal for Want op Statement of Facts — Negligence —Statute.
    Where there is nothing in the record, nor in the affidavits filed with the record by appellant, to show that he prepared or attempted to prepare a statement of facts, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2068, providing that after trial either party may make out a written statement of facts, etc., but it is fairly deducible from such affidavits and statements in appellant’s brief that no effort whatever was made by him to prepare such statement, appellant was not entitled to a reversal of the judgment because the stenographer had refused to prepare a transcript as for a pauper appellant, pursuant to order of the court, and had left the state.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4522; Dec. Dig. @=>1165.]
    3. Appeal and Error1 @=>907(3) — Presumptions Favoring Trial Court.
    In the absence of statement of facts, the Court of Civil Appeals must presume that the trial court had before it sufficient facts to support the judgment rendered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3673; Dec. Dig. @=>907(3).]
    Error from District Court, Harris County; John A. Read, Judge.
    Suit by S. Joachim and others against H. Hamilton and another. To review a judgment for defendants, plaintiffs bring error.
    Affirmed.
    D. H. Triplett, N. G. Kittrell, Sr., D. F. Rowe and Leonard Doughty, all of Houston, for plaintiffs in error. Baker, Botts, Parker & Garwood and Walter H. Walne, all of Houston, for defendants in error.

       Application for writ of error pending in Supreme Court.

   LANE, J.

We adopt the statement of the case as found in appellants’ brief, as follows:

This is a suit filed in the Sixty-First district court of Harris county, Tex., by S. Joa-chim and wife against H. Hamilton and H. Prince, wherein they sue for the accounting, etc., of the proceeds of an oil well alleged to have been digged in partnership between said Joachim, and said Hamilton and Prince; plaintiffs alleging that defendants forcibly took charge of such well and appropriated the oil therefrom in large quantities and appropriated the proceeds in large amounts, and plaintiffs sued for the money due. Mrs. Joachim died, and the minor children of herself and S. Joachim were made parties along with S. Joachim.

The case was first tried some years ago and was appealed by defendants in error herein, and the appeal was dismissed on the ground that the judgment failed to recite the name of another defendant, A. E. Stimson, thereby holding the judgment not final. The case was tried again in said district court, the trial lasting for some weeks, until May 28, 1914, on which date it was submitted to the jury on special issues; and on May 30,1914, the jury returned their answers to the special issues, and upon such issues and answers the court entered judgment for defendants, Hamilton and Prince, that plaintiffs take nothing by this suit and go hence without day.

Plaintiffs in error then filed their affidavit in lieu of appeal bond, and made a motion to be allowed to appeal on such affidavit, instead of bond. The order granting their right to appeal on such affidavit was properly made and granted, and thereupon the district judge entered the proper order approving such affidavit. Thereupon plaintiffs in error made affidavit in proper form for transcript. The court thereupon made and entered the proper order, ordering the official stenographer to the said district court to make and deliver a statement of facts herein, containing a transcript of the evidence on the trial, as provided by law. No statement of facts having been obtained under the order aforesaid, plaintiffs in error, on August 14, 1914, filed their motion against the official stenographer of the district court, asking that he be adjudged in contempt of court for refusing to obey the order, and to compel him to comply with such order. The district court overruled this motion, on the ground that the stenographer had resigned his position as official stenographer of the court, and had departed the state of Texas, and was beyond the jurisdiction of the court; it being shown that said stenographer was then in the state of Colorado. No record was ever filed in this court by reason of the appeal.

On May 28, 1915, plaintiffs in error here-in filed in said district court their petition for writ of error. They then filed affidavit in lieu of bond for writ of error, in due and proper form. The district; court thereupon allowed them to prosecute such writ of error on said affidavit. Citation in error in due and proper form was issued and served on defendants in error. On August 7, 1915, the clerk of the said district court prepared the transcript of the proceedings in this case, and in the matter of said application for writ of error in due and proper form, and on August 26, 1915, said transcript was filed in this court. On the same date plaintiffs in error filed in this court the affidavits of plaintiff S. Joachim, and of his counsel of record, Leonard Doughty, showing the facts as to plaintiffs’ attempts to obtain statement of facts, and their failure, which affidavits are on file herein. They have also filed herein the supplementary affidavits of the same persons, showing the present status of the case as being the same as when the previous affidavits were made.

Plaintiffs’ sole contention herein is that they arc entitled to a reversal on account of being refused a statement of facts, wholly without fault on their part. No assignments of error were filed, appellant insisting that it was impossible to prepare such without a statement of facts, nor is there any bill of exceptions in the record. The only reason urged by appellants for a reversal of the judgment of the trial court is that he has no statement of facts before this court to enable it to review the matters complained of in his motion for new trial, made in the trial court, and that the failure to have such statement of facts before this court is not chargeable to any negligence or fault upon the part of appellants or of their counsel.

By their brief, together with certain affidavits attached, they seek to show to this court the following facts, to wit: That appellants gave proper notice of appeal. That the trial court adjourned on the 13th day of June, 1914. That on the 26th day of June, 1914, appellants filed their affidavit of inability to -pay the cost of appeal in lieu of an appeal bond. That the court heard the contest upon such affidavit, and thereafter entered an order granting appellants the right to appeal upon said affidavit, which such order was duly entered of record. That thereafter in due time the trial court made and caused to be entered orders directing the clerk of the court to make up a transcript of the papers and proceedings in the cause as required by law, and directing the official court stenographer to make and deliver a transcript of his official shorthand notes, made by him, of the proceedings of the trial court of said cause, as provided by law. That on the 5th day of July, 1914, he saw McKinzie, court stenographer, and urged him to transcribe his said notes, as he was ordered by the court to do. That said court stenographer at that time agreed to make such transcript at an early date without fail, and would complete the same not later than the 1st day of August, 1914. That appellant relied on such promise until the time for the completion of said transcript fixed by said stenographer had expired, and thereafter, on or about the 10th day of August, 1914, and after counsel for appellants had received a letter from said stenographer, which reads as follows:

“Tucumcari, N. M., Aug. 7, 1914.
“Messrs. Rowe & Doughty, Attorneys at Law, Houston, Texas — Gentlemen: I regret the necessity of advising you that I feel that an imposition is attempted upon me in the Joachim case; therefore I shall decline to comply with the orders of the court with reference to a transcript thereof on a ‘pauper’s’ oath. A transcript of this case will cost approximately $700, and upon payment to me of $500 I will begin the transcript, and at its completion shall require the balance. I trust you will appreciate my position in the matter, and I believe you know that if I felt that the ‘pauper’s’ oath was bona fide, I would comply with the orders of the court, regardless of the cost to me; however, I feel otherwise.
“Yours truly, E. D. McXCinzie”

—appellant, by proper motion, in writing, asked the trial court to fine said stenographer for contempt of said court for having refused to obey the order of said court, and to compel said stenographer to make said transcript. That the court overruled said request, on the grounds that the stenographer had resigned his office of stenographer and had left the state of Texas, and was beyond the jurisdiction of the court. That, not being able to perfect his appeal on account of not being able to get said transcribed notes, appellant abandoned such appeal, and on the 28th day of May, 1915, filed in said trial court his petition for writ of error, and filed his affidavit in lieu of writ of error bond, which was by the court approved, and citation was thereafter in proper time served on appellees. That on the 26th day of August, 1915, the transcript of the record was filed in this court.

It is shown by the affidavit of appellant S. Joachim and his counsel, Leonard Doughty, that said stenographer has refused and still refuses to make and deliver the transcript of his said notes to appellant or his counsel or to the clerk of the trial court, and that owing to the fact that a great many witnesses testified in the trial of the case, and that many documents and papers were introduced in evidence, requiring about two weeks to try said cause, and as counsel for appellants did not charge their memories with the facts proven as they transpired, but, on the contrary, relied entirely upon the stenographer’s notes to refresh their memories, they are absolutely unable to prepare a statement of such facts from memory and without said stenographic notes, and that therefore appellant has been deprived of a statement of facts on his appeal, without any negligence or fault on the part of himself or his counsel. Upon such showing appellant is asking this court to reverse the judgment of the trial court and remand the cause for another trial.

It is well settled, we think, that where an appellant has been deprived of a statement of facts, material to his appeal, without fault or negligence of himself or counsel, he is entitled to a reversal of the judgment from which he has appealed. But we do not think appellants present any such case.

Section 8 of the Acts of the Legislature of 1911, page 264, known as the Stenographer’s Act (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2071) provides that in any civil case, when appellant or plaintiff in error has made the proof required to appeal his case without bond, such appellant or plaintiff in error may make affidavit of such fact, and upon the making and filing of such affidavit the court shall order the stenographer to make a transcript of his shorthand notes of the proceedings of the trial and deliver same to the clerk of the court for the use of the appellant, etc. It is specially provided by the provision of said Stenographer’s Act, as amended (now article 2072), that nothing in said act shall be so construed as to prevent parties from preparing statement of facts on appeal independent of the transcript of the notes of the official shorthand reporter. It is also provided by articles 2068 and 2069, respectively, as follows:

“Art. 2068. After the trial of any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection. If the parties, or their attorneys, agree upon such statement of facts, they shall sign the same; and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it; and the same shall be filed with the clerk.
“Art. 2069. If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall, from his own knowledge, with the aid of such statements, make out and sign and file with the clerk a correct statement of the facts proven on the trial; and such statement shall constitute a part of the record.”

It is clearly apparent from a reading of the statutes above quoted, and the affidavits filed herein by appellant, that appellant’s contention that he has not been negligent in procuring a statement of facts, or that he has done all h'e could to procure such statement of facts, and that he is now without such statement of facts without negligence or fault of either himself or his counsel, is not supported by anything in the record, nor by the affidavit of any one. There is nothing in the record before us, nor in the affidavits filed with1 the record by appellant, to show that appellant prepared or attempted to prepare a statement of facts under the provisions of article 2068, above quoted, but, upon the contrary, it is fairly dedueible from such affidavits, and statements in appellant’s brief, that no effort whatever was made by him to prepare such statement of facts as provided by said article.

AVe are unable to agree with appellant that it is impossible for counsel to remember the oral testimony given by the witnesses, so as to enable him to prepare a statement of the material facts proven upon the trial of the cause, or that it was impossible for him to gather from the large volume of documents introduced in evidence the facts thus proven, without the aid of the stenographer’s notes. We can hardly assume that counsel, who, in every case tried by him is called upon, as an advocate, to apply the law to the facts proven, in presenting his-case to the trial court or trial jury, has such indefinite recollection of the facts proven that he is unable to prepare a reasonably accurate statement of such facts.

We conclude that appellant cannot be excused from, at least, making such statement of facts as he believed to be correct, and from presenting it to opposing counsel for his approval or rejection. Had he done so, and opposing counsel had refused to agree to the statement of facts so prepared and presented, then appellant could have presented such statement of facts to the trial judge, who, if he refused to approve such statement, is required, by article 2069, supra, to make out and sign and file with the clerk of the court a correct statement of facts proven on the trial, to be used on appeal. Had appellant prepared or attempted to prepare such statement of facts in the manner above mentioned and had otherwise complied with the provisions of articles 2068 and 2069, supra, and then failed to procure a statement of facts to be used on appeal, this court might have reversed the judgment rendered against him by the trial court, but we decline to aid in the establishment of a rule of practice contended for by appellant.

In the absence of a statement of facts we must presume that the trial court had before it sufficient facts to support the judgment rendered, and therefore said judgment is affirmed.

Affirmed.
      <©E5>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    AMERICAN NAT. INS. CO. v. THOMPSON et al.
    (No. 7143.)

    (Court of Civil Appeals of Texas. Galveston.
    April 14, 1916.
    Rehearing Denied May 4, 1916.)
    1. Insubanoe <&wkey;445(3) — Construction ox Policy — Commencement ox Risk — 1“Eirst Policy Year.”
    A life policy was issued August 11, 1913, the first annual premium to he paid November 29, 19Í3, and annually thereafter, with a rider attached for the short term from July 29, 1913, to November 29, 1913. Premiums on both policies were paid. The main policy provided that it should bo void if insured committed suicide within a year. Held, that tbe. year began to run from the date of the short-term policy, and suicide November 6, 1914, did not avoid the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1157; Dec. Dig. <&wkey;445(3).]
    2. Appeal and Ebkob &wkey;>1050 (1) — Review —Haemless Eeeoe.
    Where the trial court correctly construed a written instrument, testimony confirming and not contradicting such construction was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. <i&wkey;1050(i).]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    Action by T. W. Thompson and another against the American National Insurance Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Nunn & Nunn, of Crockett, and Williams & Neethe, of Galveston, for appellant. Al-drich & Crook, of Crockett, for appellees.

       Application for writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This suit was brought by appellees, T. W. Thompson and F. H. Hill, executors of the will of David Thompson Adair, deceased, to recover upon a policy of insurance upon the life of said Adair, issued by appellant.

Among other defenses pleaded by the defendant it was averred, in substance, that by the terms of the policy sued on it was expressly stipulated and agreed that if the insured committed suicide “during the first policy year” defendant should only be liable for the premiums paid on the policy, and that insured did commit suicide within the first policy year, and therefore defendant was only liable for the sum of $131.63, the first year’s premium of said policy paid by the insured, which amount defendant tendered plaintiffs. The trial in the court below without a jury resulted in a judgment in favor of plaintiffs for $2,500, the full amount of the policy, together with interest, 12 per cent, damages and attorney’s fees. '

The following are the material facts shown by the evidence: The policy sued on was is-, sued on August 11, 1913. The insured committed suicide and his death occurred on November 6, 1914. The material provisions of the policy are as follows:

“This policy and the application therefor shall constitute the entire contract between tbe insured and the company and shall be incontestable for any cause whatever after one year from the date of issue provided premiums are duly paid. If during the first policy year the insured shall suicide, whether sane or insane, or dies as a consequence of violation of the law, the company shall be liable only for the premium actually paid thereon. A statement made by the insured shall in the absence of fraud be deemed a representation and no warranty. If the age of the insured has been misstated the amount payable under this policy shall be the amount which the premiums actually paid would have furnished at the correct age.”

The premiums stipulated to be paid are an annual premium of $131.63 and an extra premium; for double indemnity, of $2.50. Under the head of “Consideration,” the following is set out:

“The consideration of this policy is the application herefor and which is made a part of this contract and a copy of which application is attached hereto and endorsed hereon and payment in advance of the annual premium of $131.63 for term insurance for year ending the 29th of November, 1914, and tbe payment of a like sum on or before the 29th of November every year thereafter until full premiums have been duly paid for twenty years from the date hereof or until the prior death of the insured.”

Attached to the policy is what is usually called a rider, reading as follows:

“In consideration of the written and printed application for . ‘short-term’ insurance heretofore submitted to the American National Insurance Company of Galveston, Texas, together with an application for policy of insurance No. 20571 dated July 29, 1913, to which this rider is attached, and of the payment in advance of twentj'-threo and 3/ioo dollars (computed at ‘monthly term’ rates) this agreement is issued in conjunction with said policy.
The American National Insurance Company hereby insures the life of David Thompson Adair, the insured under the aforesaid policy, for like amount and under like conditions as stated in said policy for the period July 29, 1913, to November 29, 1913, inclusive, preliminary to the date when the principal contract shall become in full force and effect.”

The application upon which the policy was issued contains the following:

“I have paid to J. S. Walker & E. O. Arledge $157.15, the first annual premium on the policy applied for on the condition that if the risk is not assumed by the Company, this sum is to be returned in accordance with the provisions of Conditional Receipt No. 3483 which I have accepted subject to the provisions thereof. Term Insurance from 7/29/13 to 11/29/13, $23.02.”

Walker and Arledge were the agents of the company who procured the application. As to the circumstances under which the application was obtained, the premiums paid, and the policy issued, Arledge testified:

“I believe it was about the latter part of July, 1913. Mr. Walker was with me; we came to Mr. Adair; he was in the hay field. It was about the latter part of July, 1913, and the question came up as to whether he would be able' to pay the policy in the summer. We suggested that he take term insurance until fall, when his crop would be off and he could pay it then. We gave him term insurance for four months; he carried it to the 29th day of November. He gave us his note at that time for the entire premium covering the term insurance, ■which he afterwards paid. The company did not handle the note; we paid them cash. That was all arranged at one time — the premium for the term insurance and the premium for one year. That was on the 29th day of July when the original application was made. He paid the note before it was due. I don’t remember when it was due. I handled it with the company as a cash transaction. The company was paid on or about the 1st of September. It was all charged to my account, and I paid the whole account and paid other accounts with that; it covered the whole premium. The purpose in having the term insurance was for the insured’s convenience, as it would not be convenient for any farmer to pay premiums in the summer.”

The only question presented by this appeal is whether the clause in the policy, “If during the first policy year the insured shall suicide,” should be construed to mean the year beginning on August li, 1913, the date of the issuance of the policy, or the year beginning November 29, 1913, the date of the expiration of the short-term insurance, and the date from which the yearly premiums provided in the policy should be computed. The trial court found that the “rider” providing for the short-term insurance from July 29 to November 29, 1913, was a part of the policy and there was in fact but one contract of insurance, which was issued on August 11, 1913, and that the first policy year, as that term is used in suicide clause of the policy, began on the date of the issuance of the policy. Appellant, under appropriate assignments of error, assails this finding, and contends that the term insurance and the contract for the long-time insurance at a yearly rate were separate and distinct contracts, and therefore the suicide clause does not apply to the time covered by the “rider” providing for the short-term insurance.

We think the trial judge was correct in holding that there was but one contract. The rider was attached to the policy and recites that it was issued in consideration of the application for short-term insurance, together with the application for the long-term policy and in conjunction with said policy; and that the life of Adair is thereby insured for the short term for a like amount and under like conditions as stated in the policy. We do not think it could be doubted under these provisions of the “rider” that if the insured had suicided between the issuance of the policy and the 29th day of November, 1913, the suicide clause of the policy would have applied, and appellant would only have been liable for the premium paid on said policy. If the suicide clause in the policy covered the period between the dates last named, then it could not be held to cover the date on which the insured committed suicide, because by its terms it only covered one year. ■ If, instead of attaching a “rider” to the policy providing for the short-term insurance, the contract of insurance had. recited that the premiums to be paid on said policy should be $131.63 yearly in advance, but that for the convenience of the insured the company had accepted the premium for one year and four months and at the expiration of that time the premiums should be paid for only one year in advance, it seems clear to us that the suicide provision of the policy would cover the year beginning with the issuance of the policy. We think the premium for short-term insurance evidenced by the “rider” attached to the policy, construed with the policy and in the light of the evident purpose for which such short-term insurance was taken and paid for, amounts to nothing more than an agreement on the part of the company to accept the premiums for one year and four months, and that by such payment the insured was protected for said time in the amount named in the policy and “under the conditions therein stated,” and that the policy as a whole took effect on the date of its issuance, and the suicide clause in the policy can only be held to cover the year beginning with the issuance of the policy.

The construction we have placed upon the contract is clearly the meaning of the writings themselves; and the testimony of the agent, Arledge, was not necessary in order to arrive at the intention of the parties as expressed in the writings. Since this testimony in no way alters or contradicts the provisions of the written, contract, it was not prejudicial to appellant, and the assignment of error complaining of its admission cannot be sustained.

The case of Gans v. Insurance Co., 214 N. Y. 326, 108 N. E. 443, L. R. A. 1915E, 703, cited by appellant, does not sustain the'contention that the suicide clause in the policy involved in this suit only covers the year beginning November 29, 1913. In the case cited a policy for five years was issued on April 5, 1911. This policy provided that at its expiration the insured should have the option of making one of several stated contracts with the company. In the exercise of this option the insured, on April 5, 1912, procured a contract of insurance from the company which contained the provision that “if the insured shall commit suicide within one year from the date hereof, while sane or insane, this policy shall be null and void.” The insured committed suicide within a year after the 5th of April, 1912; and in a suit by his beneficiary to recover on the policy the plaintiff claimed that the one year covered by the insurance clause should date from the 5th of April, 1907, the date of the issuance of the policy for five years. The court held:

“The intent of the insured and the company existing April 5, 1912, as expressed binds and obligates both of the parties. Tresumptively, their intent is expressed by the natural and ordinary meaning of their language referable to it, and such meaning cannot be perverted or destroyed by the courts through construction. * * * The policy in suit is dated April 5, 1912, and in it the insured and the defendant said : ‘If the insured shall commit suicide within one year from the date hereof, while sane or insane, this policy shall be null and void.’ This is a rigid and certain agreement from which no doubt or hesitation as to its meaning can spring. They also said: ‘This policy and the application herefor constitute the entire contract between the parties hereto.’ ”

We do not see how any other decision could possibly have been rendered. If the contract of insurance in this case had expressly provided that the suicide clause in the policy only covered one year from November 29, 1913, the case cited would be in point, but it is no authority for appellant’s contention as to the proper construction of this contract.

We are of opinion that the judgment of the court below should be affirmed and it has been so ordered.

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


text:
    MATTHEWS et al. v. MITCHELL BROS.
    (No. 7135.)
    (Court of Civil Appeals of Texas. Galveston.
    April 21, 1916.
    Rehearing Denied April 27, 1916.)
    Costs <&wkey;260(4) — Appeal iron Delay — Damages — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1629, providing damages when an appeal is taken for delay, where judgment was rendered for plaintiffs November 10, 1914, defendants sued out writ of error and filed supersedeas bond April 30, 1915, and plaintiffs filed waiver of service of citation and accepted service on petition for writ of error May 11, 1915, the record being filed by defendants August 6, 1915, no briefs being filed by them, there being no statement, the record containing no assignments_ of error, the judgment conforming to the petition, and there being nothing in the record showing error in the proceedings, judgment below will be affirmed, with 10 per cent, damages.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 986-991; Dec. Dig. &wkey;260(4).]
    Error from District Court, Harris County ;■ John A. Read, Judge.
    Suit by Mitchell Bros, against J. W. Matthews and others. From a judgment for plaintiffs, defendants appeal.
    Judgment affirmed, with 10 per cent, damages.
   PLEASANTS, C. J.

This suit was brought by appellees’ against appellants to recover upon certain promissory notes executed by defendants in part payment of the purchase money of a barge sold appellants by appel-lees, and to foreclose a lien upon said barge given to secure the payment of said notes. Upon the trial in the court below judgment was rendered in favor of plaintiffs for $1,-859.82, with interest from November 20, 1914, the amount due upon said notes, and for foreclosure of the lien. The judgment further provided that “by agreement of parties” the issuance of an order of sale should be stayed for four months. This judgment was rendered on November 10, 1914. No motion for new trial was filed by appellants.

On April 30, 1915, appellants sued out a writ of error and filed a supersedeas bond. The appellees filed waiver of service of citation and accepted service on petition for writ of error on May 11, 1915. The record was filed in this court by appellants on August 6, 1915. No briefs have been filed by appellants. The cause was set for submission in this court on March 23, 1916, and appellees prior thereto filed a motion suggesting delay and asking that the judgment of the court below be affirmed, with 10 per cent, damages for delay.

There is no statement, and the record contains no assignments of error. The judgment conforms to the petition, and there is nothing in the record that shows any error in the proceedings. We think, from the facts stated, it appears conclusively that the appeal was taken for delay, and appellee is entitled under article 1629, Vernon’s Sayles’ Statutes, to have the judgment affirmed, with 10 per cent, damages. Grier v. Powell, 14 Tex. 321; Marx v. Brown, 42 Tex. 111; Granberry v. Mussman, 90 S. W. 533. It is ordered that the judgment of the court below be affirmed, with 10 per cent, damages.

Affirmed, with damages.


author: HODGES, J.

text:
    QUALLS v. FOWLER et al.
    (No. 1624.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 27, 1916.
    On Rehearing, May 4, 1916.)
    1. Judgment <&wkey;570(l) — Bar—Dismissal.
    A judgment of dismissal for failure to comply with the rule for costs, not adjudging the rights of the parties, is not a bar to a later similar suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1028, 1036, 1165; Dec. Dig. &wkey; 570(1).]
    2. Limitation of Actions &wkey;>19(2) — Recovery of Real Estate.
    The four-year statute of limitation does not apply to an action of trespass to try title.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 74; Dec. Dig. <&wkey;> 19(2).]
    3. Trial <&wkey;2G0(l) — Requests for Instructions — Issue Already Presented.
    No instruction is required as to an issue fully presented in questions propounded by the court, to which no objection is made.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;2G0(l).]
    4. New Trial <&wkey;108(2) — Newly Discovered Evidence — Sufficiency.
    It is not an abuse of discretion to refuse new trial in action to try title to wife’s separate property because of'nerwly discovered evidence of admissions made by her husband, not in her presence, after the conveyance under which appellants claim.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 227; Dec. Dig. t§^108(2).]
    5. Evidence c&wkey;248(l) — Admissions by Representative or Husband After Conveyance.
    In an action to try title by wife, with her husband, against vendees claiming more land conveyed than grantors claim was intended, admissions by the husband, not in wife’s presence, after the conveyance, as to the acreage deemed conveyed, do not bind her.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 953, 956, 959, 963, 964; Dec. Dis. c&wkey;>24S(l); Husband, and Wife, Cent. Dig. § 139.)
    6. New Trial <&wkey;105 — Newly Discovered Evidence — Admissions — Credibility op Witness.
    Such testimony would only have the effect to discredit her husband.
    [Ed. Note. — Por other eases, see New Trial, Cent. Dig. §§ 1S3, 221-223, 229; Dec. Dig. &wkey; 105.)
    7. New Trial <&wkey;104(l) — Newly Discovered Evidence Merely Cumulative.
    Ordinarily newly discovered evidence, merely cumulative, will not require new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218, 228; Dec. Dig. &wkey;104(l).]
    8. New Trial &wkey;>105 — Newly Discovered Evidence — Impeachment op Witness.
    Ordinarily newly discovered evidence, designed merely for impeachment, will not require new trial.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 183, 221-223, 229; Dec. Dig. &wkey;> 105.)
    On Rehearing.
    9. Appeal and Error <&wkey;833(4) — Rehearing —Motion—Amendment.
    An appellant may probably amend a motion for rehearing, if done within the time limit therefor. .
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3231, 3233, 3234, 3236-3239 ; Dec. Dig. t&wkey;833(4)J
    10. Appeal and Error <&wkey;833(4) — Rehearing — Motion—Amendment.
    In case of amendment of motion for rehearing, the original motion will be dismissed, and only tlie amended motion considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3231, 3233, 3234, 3236-3239; Dee. Dig. &wkey;833(4).].
    11. Appeal and Error' &wkey;>832(l) — Rehearing — Grounds — Opinion — Writer Not Hearing Oral Argument.
    Where the case was thoroughly discussed by all members of the court, and those who heard the argument fully concurred in the disposition of the appeal, rehearing will not be granted because the writer of the original opinion did not hear the oral argument.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3218, 3220, 3223-3225;-Doc. Dig. &wkey;S32(l).]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by Eliza Fowler and husband against George Qualls. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Simkins & Simkins, of Corsicana, for appellant. McClellan & Prince and Jack & Jack, all of Corsicana, for appellees.
   HODGES, J.

The appellee, plaintiff below, in October, 1909, instituted a suit, numbered 7601 on the docket of the trial court, against the appellant, in the form of an action of trespass to try title, for the land involved in this suit. On their failure to comply with the rule for costs, the case was dismissed, and the judgment so stated. In February, 1912, they filed this suit, to cover same land, which was numbered on the docket of the trial court 8234. The appellant, as defendant below, filed a plea in abatement to this suit, seeking to defeat it on the ground that the dismissal of cause No. 7601 for failure to comply with the rule for costs was a bar. In answer, to this plea the appellees filed a supplemental petition, setting up the facts surrounding the dismissal of suit No. 7601, and prayed the court to set aside the dismissal, reinstate that suit, and consolidate it with this. The court overruled the plea in abatement.

The petition in this case contains one count, which is in the form of an action of trespass to try title. Among other defenses the appellant pleaded not guilty, the statute of limitations of three, four, and five years, improvements in good faith, the former judgment in bar of this action, and denied the other material allegations contained in the plaintiffs’ petition. It appears from the evidence that the defense relied upon is a deed executed by appellees, Eliza Fowler and her husband, Washington Fowler, made some years prior to the institution of the first suit. That deed includes within its description about 46 acres of land. The appellees contended that this description, if it did include 46 acres, was a mistake; that they sold to the appellant 6 acres, and the deed should have conveyed only that number. The pleadings show that the land belongs to Eliza Fowler, the wife of her coappellee; that it was a part of her separate estate inherited from her father. It also appears that both of the appellees were negroes, and were unable to read and write, and accepted the statements of the notary as to what the deed contained. The appellant relies as a defense upon the wording of the deed as it actually appears now upon the record. The case was submitted upon special issues, and only the two following questions were propounded to the jury:

, “(1) At the time of and in making the sale by Wash. Fowler and Eliza Fowler to George Qualls, did plaintiffs and the defendant have the purpose and intend to pass title to George Qualls to six acres of land lying outside of the inclosed land of Wash, and Eliza Fowler? If you answer this question in the affirmative, and find that only six acres was intended to be conveyed, then you will describe as best you can the land which you find was intended to be so conveyed.
“(2) At the time of and in making the sale by Wash. Fowler and Eliza Fowler to George Qualls, did plaintiffs and the defendant have the purpose and intend to sell and pass title to George Qualls to all the land belonging to Wash, and Eliza Fowler lying outside of their inclosed land?”

Both of these questions were answered favorably to the appellees, and the land they intended to convey was described in the verdict.

There was no error in the action of tlie court in overruling the plea in abatement, or in bar, as it may be termed. The former judgment relied on as the basis of that plea was merely one of dismissal, and was not res adjudicata of the rights of the parties. The plea of limitation based upon the four-year statute was no defense to this suit; this being an action to recover title and possession of real estate. Rutherford v. Carr, 99 Tex. 101, 87 S. W. 815; Strickland v. Baugh, 169 S. W. 181.

The special charge, instructing the jury, in effect, that the mistake relied on by the appellees as a ground for impeaching the description in the deed and for a recovery of the land must have been mutual, was properly refused. That issue was fully presented in the questions propounded by the court, to which there was no objection made by the appellant.

In his sixth assignment of error the appellant complains of the refusal of the court to grant a new trial, because of the discovery of new evidence not available at the time of the trial. It appears from the affidavits filed that this testimony consists of the statements of three different witnesses that they heard Washington Fowler, one of the appellees, say on different occasions that he had sold all of the land outside of his inclosure to the appellant. The diligence disclosed by the record is not entirely satisfactory. It appears that the parties whose testimony .was discovered after the trial were residents of the same community, and neighbors of the parties interested. Why their testimony was not sooner discovered does not appear. But in any event it cannot be said that the trial court abused his discretion in refusing a new trial. The land sued for being the separate property of Eliza Fowler, admissions made by her husband after the conveyance, and not in her presence, could not bind her. Such testimony would only have the effect to discredit her husband. Clapp v. Engledow, 82 Tex. 290, 18 S. W. 146; Evans v. Purinton, 12 Tex. Civ. App. 158, 34 S. W. 350. It is well settled in this state that testimony which is merely cumulative, or which is designed merely for impeachment, will not ordinarily serve as a basis for a new trial. Pelly v. Denison & S. Ry. Co., 78 S. W. 542; T. & N. O. Ry. Co. v. Scarborough, 101 Tex. 436, 108 S. W. 804.

The .judgment of the district court is affirmed.

On Rehearing.

On April 25th the appellant filed a motion for a rehearing in this case, and on April 27th he filed what is styled an “amended motion” for a rehearing. Both of these instruments were filed within the time permitted by law for filing such motions. It has not been customary in this court for two motions for a rehearing to be filed by the same appellant in the same appeal. The appellant should probably be conceded the right to amend his motion for a rehearing, if done within the time limit; but such amendment will be treated by this court as a substitute for the original. We cannot permit the practice of filing as many different motions in separate instruments as the parties may feel inclined to write. We shall therefore dismiss the original and consider only the amended motion.

The point is made that the writer did not hear the oral argument when this case was presented to this court. That is'true; but the case in all of its phases was thoroughly discussed by all the members of the court, and those who did hear the argument fully concur in the disposition made of the appeal. There is nothing in the motion which has not been fully considered heretofore.

Upon a consideration of the whole ease, we feel that the judgment rendered in the court below was the proper one. The motion is therefore overruled.
      <g=»For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes

      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGE8, J.

text:
    NORTH TEXAS LUMBER CO. v. FIRST NAT. BANK OF ATLANTA.
    (No. 1586.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1916.)
    1. Deeds <&wkey;41 — -Validity—Description.
    Deeds through which plaintiff in a suit to recover land deraigned title describing the land as “in Cass county, Texas, on the water of Frazier creek, being the headright survey of Levi Barron, patented to Elijah Echols, as assignee, abstract No. 117, certificate No. 2150, patent No. 207, containing three hundred and twenty acres, fully described in deed from J. P. Herring and L. A. Ellis to W. M. Dunn and Wurtzbaugh”; and another describing “all that certain tract of land situated in Cass county, Texas, being the Levi Barron headright, patented to Elijah Echols and deeded to me by Wm. R. Bradford April 16, 1908, to which deed reference is here made for better description and same is made a part hereof,” were not void on their face for lack of description.
    [Ed. Note. — For other eases, see Deeds, Cent. Dig. § 84; Dec. Dig. i&wkey;>41.]
    2. Teespass to Try Title &wkey;>35(4) — Pleading — Desobiption—Variance.
    Such descriptions were not a variance from a petition describing the land as “three hundred and twenty acres of land patented by the state of Texas to Elijah Echols, assignee of Levi Barron, December 8, 1851, patent No. 207, vol. 6,” followed by a description by metes and bounds, as amended to allege that the land was referred to in the first deed as the “Levi Barron” survey, when it should have been the “Levi Barrow” survey, and that the reference to “J. P. Herring” should have been “J. P. Hurvey,” and to allege that the recital in the second deed that the land was the headright survey of “Levi Barron” patented to Elijah Echols should have read patented to “Elijah Echols, assignee of Levi Barrow.”
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 50; Dec. Dig. &wkey;> 35(4).]
    3. Trespass to Try Title <&wkey;41(l) — Verdict —Suppiciency op Evidence.
    In a suit to recover land deraigned from a patent wherein defendant endeavored to prove title by showing that a lumber company furnished the money with which plaintiff predecessor purchased from the common source of title, and that defendant had acquired the interest of the lumber company, evidence held to sustain a directed verdict for plaintiff for the title and possession of the land.
    [Ed. Note. — For pther cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. <&wkey;41(l).]
    4. TROVER AND CONVERSION &wkey;352 — TIMBER— Good Faitji — Damages.
    Where the trespass is not willful, but is the result of an honest mistake, the trespasser is liable only for the value of the timber converted while in its natural state, and not in its manufactured state.
    [Ed. Note. — ’For other cases, see Trover and Conversion, Cent. Dig. §§ 269-271; Dec. Dig. 4&wkey;52.]
    5. Appeal and Error <&wkey;1151(2) — Judgment —Modification.
    In a suit to recover land, an item of the judgment for plaintiff, allowing for timber converted its value in its manufactured state, may be reformed so as to reduce it to the value of the timber in its natural state, and the defendant and appellant could not complain of such reduction.
    [Ed. Note. — For other cases, see Anneal and Error, Cent. Dig. §§ 4498-4500, 4503-4505; Dec. Dig. &wkey;Jll51(2).]
    6. Judgment <&wkey;248 — Conformity to Proof-Improvements.
    In a suit to recover land where there was no evidence of the value of the land with or without the improvements, there was no basis for any judgment allowing the value of improvements in good faith.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 434; Dee. Dig. <&wkey;248.]
    7. Taxation <&wkey;531(2) — Trespass to Try Title <&wkey;60 — Payment — Subrogation — Judgment.
    In such suit, the court correctly refused to allow the defendant reimbursement for the taxes on the land paid by it, as having no title either to the land or the timber, _ its payment was made as a volunteer not entitling it to sub-rogation.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §. 987; Dec. Dig. &wkey;>531(2); Trespass to Try Title, Cent. Dig. § 91; Dec. Dig. &wkey;60J
    Appeal from District Court, Cass County; J. A. Ward, Judge.
    . Suit by the First National Bank of Atlanta, Tex., against the North Texas Dumber Company. Judgment for plaintiff, with lindings of rent and damages due plaintiff, and defendant appeals.
    Reformed and affirmed.
    W. B. Figures, of Atlanta, and Glass, Estes, King & Burford, of Texarkana, for appellant. O’Neal & Allday, of Atlanta, for appellee.
   HODGE8, J.

In August, 1913, the 'appel-lee instituted this suit against the appellant to recover 320 acres of land described as situated in Cass county, Tex., the Levi Barrow survey patented to Elijah Echols, assignee of Barrow, patent No. 207, also to recover rents and damages for the conversion of timber. The appellant, defendant below, pleaded limitation of five and ten years in bar of the claim for the land, and two years against the recovery of rents, and asked for reimbursement for improvements made in good faith and for the recovery of taxes which it claimed to have paid on the land after it acquired possession. The appeal is from an instructed verdict in favor of the appellee.

It was agreed on the trial below that E. P. Goodman was the common source of title. It was also agreed that the appellant had received rents amounting to $127.50; that the value of the timber cut by it from the land in controversy amounted to $57, and in its manufactured state to $370; that the value of the improvements placed upon the land by the appellant amounted to $350, and the taxes paid by it to $65. Under the direction of the court the jury found for the appel-lee rents amounting to $127.50, and damages in the sum of $370. There was no allowance for improvements or for taxes1 paid by the appellant.

The appellee deraigned title as follows: Deed from Goodman to W. R. Bradford, dated June 18, 1907; deed from Bradford to R. M. Morris, dated May 23, 1908; deed from Morris to the appellee, dated September 7, 1912. When the deeds from Bradford to Morris and from Morris to the ap-pellee were offered in evidence objections were made upon the ground that they were void for want of description, that there was a variance between the description contained in them and that of the land as set out in the appellee’s pleadings, and that they did not convey the land sued for. The land is described- as follows in the appellee’s amended original petition:

“Three hundred and twenty acres of land patented by the state of Texas to Elijah Echols, as-signee of Levi Barrow, December 8,1851, patent •No. 207, Yol. 6.”

Then follows description by metes and hounds.

The description in the deed from Bradford to Morris is as follows:

“In Oass county, Texas, on the water of Frazier creek, being the headright survey of Levi Barron, patented to Elijah Echols as assignee, abstract No. 117, certificate No. 2150, patent No. 207, containing three hundred and twenty acres, fully described in deed from J. 'P. Herring and L. A. Ellis to W. M. Dunn and Wurtz-baugh, being the headright survey of Levi Barron."

The appellee pleaded in its second amended original petition, upon which the case was tried, that the deed from Bradford to Morris contained an erroneous description; that through a mistake the land was referred to as the “Levi Barron” survey, when it should have said the “Levi Barrow” survey ; that a mistake was also made in that part of the deed which referred to J. P. “Herring”; that it should have said J. P. “Hurvey.” It was further alleged that the description in the deed from Morris to the appellee contained the following description:

“All that certain tract of land situated in Cass county, Texas, being the ‘Levi Barron’ headlight, patented to Elijah Echols and deeded to me by Wm, R. Bradford April 16, 1908, to which deed reference is here made for better description and same made a part hereof.”

It was ayerred that in writing this deed the parties, through mistake, recited that the land was the headlight survey of “Levi Barron” patented to Elijah Echols, when it should have stated that it was patented to “Elijah Echols, assignee of Levi Barrow”; and they made the further mistake, as to the date of the deed from Bradford to Morris, that instead of describing that date as April 16, 1908, it should have described it as May 28, 1908.

Neither of these deeds was void upon its face for lack of description, nor was there a variance between the description contained in the pleadings taken in their entirety and those contained in the deeds such as would justify the court in rejecting the evidence upon that ground alone.

The question then is: Are these descriptions sufficient to constitute muniments of title to this particular tract of land? No' issue was joined upon the averments of mistake, as set out in the appellee’s amended original petition. And there appears to be no controversy as to the identity of the land being the same in each particular transfer. There was testimony, undisputed, that the tract of land was generally known as the “Levi Barron survey.” Bradford, Daniels, and Morris testified, without any objection, that the transfers were made, and they all refer to the land as being the same as that originally owned by Goodman and purchased from him by Bradford. The testimony, we think, was sufficient to warrant a judgment correcting the descriptions and making them" conform to that set out as the correct one in the appellee’s original petition, had this been necessary.

The deeds being properly in evidence, the appellee established a well-connected chain of title from the common source, and was entitled to judgment, unless there was sufficient opposing evidence.

The appellant endeavored to prove title by showing that the Twelve Pines Lumber Company, a private corporation, furnished the money with which Bradford purchased from Goodman, and that it became thereby the real beneficial owner of the land. There was testimony offered sufficient to show that the appellant had acquired all of the interest which the Twelve Pines Lumber Company owned in any lands in that county. As tending to prove that the Twelve Pines Lumber Company had furnished the consideration for the purchase by Bradford from Goodman, the appellant offered the testimony of Wesley Morse. Morse would have testified, in substance, that Goodman purchased the land for the benefit of the Kiota Lumber Company — that is, in order that this company might have the timber growing thereon; that the Kiota Lumber Company furnished $1,200 of the consideration paid by Goodman ; that Goodman immediately deeded the timber to thb Kiota Lumber. Company, keeping title to the land under an agreement that he was to have that as his profit from the enterprise. But this timber deed was after-wards lost. Before another deed was executed Goodman conveyed to Bradford, without reserving the timber rights. It appeared that Bradford had paid $1,000 of the consideration to Goodman by a draft drawn on him through a bank in Shreveport. This draft was afterwards found among the papers and effects of the Twelve Pines Lumber Company turned over to the appellant company after its purchase of all the rights and properties of that company from the receiver, who then had control of its assets. Morse would also have detailed a conversation which he had with a man by the name of Coke, who occupied an official position in the management of the Twelve Pines Lumber Company, in which Coke admitted that the Twelve Pines Lumber Company had outwitted the Kiota Lumber Company and acquired both the land and the timber. All of this testimony was, upon objection, excluded, the court holding that the evidence was not relevant upon the issue of title. Bradford testified by deposition that he bought the land for Rus Daniels, who at that time was an officer in the management of the Twelve Pines Lumber Company; that he knew nothing of the Twelve Pines Lumber Company in the transaction; that Daniels furnished the money which constituted the consideration paid to Goodman. Daniels testified also by deposition that the purchase was made for him by Bradford, that he furnished the money from his individual funds, and that the Twelve Pines Lumber Company had no connection with the transaction whatever, and had no interest in the land. This testimony was not contradicted. Had the testimony of Morse and other similiar witnesses been admitted it would not have been sufficient to overcome this positive and direct evidence that the Twelve Pines Lumber Company had no interest in the purchase made by Bradford. The failure to establish that connection defeated any claim of right by the appellant. The court therefore, we think, correctly instructed a verdict in favor of the appellee for the title and possession of the land. It is conceded that the appellant had received $127.90 as rents, and the judgment for that sum was also correct.

But it does not follow that the court was correct in directing a verdict against the appellant for $370, the value of the timber in its manufactured state. The rule so far adopted by the courts in this state seems to be that where the trespass was not willful, but the result of an honest mistake, the trespasser is liable only for the value of the property converted while in its natural state. Railway Co. v. Jones, 34 Tes. Civ. App. 94, 77 S. W. 955; Young v. Pine Ridge Lumber Co., 100 S. W. 784; Werner Stave Co. v. Pickering, 55 Tex. Civ. App. 632, 119 S. W. 333. The evidence offered and rejected, when considered in connection with that which was admitted, was sufficient at least to present an issue for the jury as to whether the appellant acted in good faith and under an honest belief that it had a legal right to appropriate the timber.

The appellee in its brief has suggested that if this court should hold that the trial court erred as to this item the judgment may be reformed. We assume that this suggestion is made in order to prevent a reversal and remand of the case. If we act upon that suggestion we shall be compelled to reduce this item of damages to $57, the agreed value of the timber in its natural state. Of this the appellant cannot complain. If the appellee prefers another trial to this reduction, that fact can be made known in a motion for rehearing. This modification also renders harmless the ruling of the court in excluding the proffered testimony of Morse and other witnesses whose testimony would have been substantially the same.

There was no error in refusing to allow for improvements in good faith. There was no evidence of the value of the land', with or without the improvements, and hence no basis for any judgment allowing the value of improvements in good faith had the evidence been sufficient to warrant a submission of that issue. Crump v. Sanders, 173 S. W. 559.

The court also correctly refused to allow the appellant reimbursement for the taxes which it had theretofore paid upon the land. The appellant had no title whatever either to the land or the timber, and when it paid the taxes it did so as a volunteer and could not claim the right of subrogation. Capts v. Stubbs, 68 Tex. 222, 4 S. W. 467; McCormick v. Edwards, 69 Tex. 106, 6 S. W. 32; Mumme v. McCloskey, 28 Tex. Civ. App. 83, 66 S. W. 853.

The judgment of the district court will be reformed as before indicated, and affirmed; but the costs of this appeal will be taxed against the appellee.
      (gx^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «SrroFor other casos see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes