source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    AMERICAN NAT. INS. CO. v. HICKS.
    (No. 7800.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 27, 1917.
    Rehearing Denied Nov. 24, 1917.)
    1. Tbial <§=>142 — Questions for Juey.
    The court is not authorized to take a question from the jury unless the evidence is of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.
    2. Insurance <§=>668(7) — Actions — Questions for Jury — Misrepresentations.
    In an action on insurance policies issued on an application in which insured represented that he had not suffered any serious illness or disease prior thereto, evidence held to make a question for the jury as to whether an attack of renal colic, suffered a few months prior to the application, was a serious illness or disease, and hence a directed verdict was properly denied.
    3. Insurance <§=o151(2) — Medical Examiner’s Report as Part op Contract.
    Under the statute (Vernon’s Sayles’ Ann. Civ. ,St. 1914, art. 4951) providing that every policy of insurance shall contain the entire contract between the parties, and that the application therefor may he made a part thereof, where the medical examiner’s report to the insurance company was not mentioned or referred to in any way in the policies, and there was nothing in the report itself expressly or impliedly making* it a part of the contract, it was not a part of the contract, and a statement therein that insured had never had renal colic, gravel, or calculus, if false, did not annul the policies, especially where the policies provided that the policy and application constituted the entire contract.
    Í. Appeal and Error <§=>1062(2) — Harmless Error — Refusal to Submit Issues.
    Where, in an action on insurance policies, the jury found specially that insured had never had a serious illness or disease befoi’e the date of the policies, there was no error in refusing to submit a requested issue as to whether a misstatement in his application as to a former serious illness or disease, if made, was fraudulently made.
    5. Pleading <@=>129(2) — Admissions—Necessity op Proof.
    In an action on insurance policies in which plaintiff sought to recover the statutory penalty for failure to pay and a reasonable attorney’s fee, where the answer alleged as a defense false statements by insured, and did not allege that a demand for the payment of the policies had not been alleged or made, and at the trial defendant secured the right to open and conclude the argument by admitting that plaintiff had a good cause of action as set forth in her petition, except as it might be defeated by the facts of the answer constituting a good defense which might be established on the trial, the right to recover the penalty and attorney’s fee was admitted, and judgment therefor was properly entered, though there was no allegation or proof of a demand.
    6. Trial @=>351(5) — Special Issues — Questions Already Submitted.
    There was no error in refusing to submit special issues in the form in which they were requested, where they were substantially submitted in the court’s charge.
    7 Appeal and Error @=>1064(1) — Harmless Error — Instructions — “Serious Illness or Disease.”
    In an action on life insurance policies, an instruction defining “serious illness or disease” as one whose ailments and disorders were calculated to, or tended directly to, impair the general health or constitution of the person affected, or to produce death unless arrested, or to * produce a vice in the constitution, and not including such slight temporary ailments as were calculated neither to affect nor threaten the general health or constitution of the person so affected, was not prejudicial as giving an incorrect or misleading definition, or as placing upon defendant a burden of proof greater than that imposed upon it by law, or as excluding from the jury’s consideration proof introduced by defendant showing that insured had had an attack of renal colic, gravel, and calculus about three months prior to the application, and that he falsely and fraudulently represented that he had not had such illnesses or diseases.
    [Ed. Note. — For other definitions, see Words and Phrases, Serious.Disease; First and Second Series, Serious Illness.]
    8. Insurance @=>669(7) — Misrepresentations — Representations as to Health.
    Such definition was slightly, if at all, imperfect, and amply sufficient to guide the jury in determining whether insured had had any serious illness or disease prior to the date of the policies.
    9. Evidence @=>477(2) — Opinion Evidence-Physical Condition.
    In an' action on insurance policies defended on the ground that insured made false representations in the application, in that he had an attack of renal colic a few months prior to the application, where it appeared that insured’s wife was absent from home when he was taken sick on the occasion in question, and it was not pretended that she was qualified as an expert, her testimony that he was in perfect health when she left home was inadmissible, as it was but her conclusion.
    10. Appeal and Error @=>1050(1) — Harmless Error — Admission oe Evidence.
    The admission of such testimony was harmless, as the error was not one which was calculated to and did cause the .rendition of an improper verdicf and judgment.
    Error from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by Leona C. Hicks against the American National Insurance Company. Judgment for plaintiff, and the defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. W. W. Hilbrant, of Dallas, for defendant in error.
   TALBOT, J.

The defendant in error, Leona C. Hicks, sued the plaintiff in error on two' life insurance policies. The petition alleges “that on the 28th day of October, 1914, the defendant issued two policies on the life of William Thomas Hicks, each for $2,000, payable to the plaintiff; that the premium was paid for one full year, said policies being numbered 25621 and 25517; that William T. Hicks departed this life on October 5,1915, and that the plaintiff has furnished due proof of the death of said W. T. Hicks to the defendant under each policy; that the defendant denied liability on November 5, 1915, and refused payment of said policies or any part of the same; that under article 4746 of the Revised Statutes plaintiff is entitled to recover 12 per cent, of damages on the full amount of the loss, together with a reasonable attorney’s fee; that $500 is a reasonable attorney’s fee; and that the defendant has failed and refused to pay either policy, so that the plaintiff is entitled to recover the sum of $6,000.

By its amended answer the defendant alleged that Mr. Hicks died less than one year from the date of the issuance of said policies; that by the terms of them the defendant was given the right to contest for any lawful cause within one year from date of issuance, and same stated that they and the applications therefor constituted the entire contract between the insured and the defendant; that defendant was induced to issue the policies sued on, and did issue the same, on account of a misrepresentation on the part of the assured, and, by reason of fraud and misrepresentation, it is not bound to pay any sum; that, to induce it to issue such policies, the assured made an application in writing in order to show himself in an insurable physical condition, and submitted to a physical examination by defendant’s examiner, and made written statements to the examiner in connection with his examination; that in the application and in the examination, and in the answers to the medical examiner, the said Hicks made false and fraudulent misrepresentations concerning his physical history and his physical condition, well knowing that such misrepresentations were false and fraudulent, for the purpose and with the intent of wrongfully inducing and procuring the defendant to issue the policies; that the defendant believed and relied upon-the statements, and was thereby induced and did issue the policies sued on; that defendant learned of this fraud and misrepresentation about November 6th, and on that date, within a reasonable time after it discovered the falsity of the representation, it gave notice to the beneficiary of the policies that it refused to be bound thereby, which notice was within 90 days after discovering the falsity of the representations; that defendant tendered to the beneficiary all moneys paid to it as premiums on such policies; that the misrepresentations made to it are as follows: That in the application, which is a part of the contract, the insured stated and represented that he had had no serious illness or disease; and in the medical examination signed by him and presented to the defendant as a basis for the contract he stated, in answer to the question, “Have you ever been affected by any of the following named diseases or conditions, to wit, gallstone colic?” He answered “No.” “Renal colic?” He. answered, “No.” “Gravel or calculus?” He answered, “No.” And by such answers he represented to the defendant that he had never had any serious illness or disease, nor gallstone colic, nor renal colic, nor gravel, nor calculus; that each of such statements was false and was fraudulently made, and within less than six months prior to each of the policies sued on the assured had had a serious illness or disease, and had a pronounced attack of gallstone colic and renal colic, and had passed gravel or calculus, and had diseased kidney; and -the defendant believes, and so alleges, that the assured had had other serious illnesses or diseases, and other attacks of maladies identical with or similar to those specifically described, the exact nature of which is to the defendant unknown; that the misrepresentations contained in the application and in the statement to the medical examiner were sent the defendant, and were believed and relied upon by it, and formed an inducement to it to enter into the contract of insurance sued on, and were part of the consideration therefor, and alleges further that such diseases were material to the risk of loss involved and upon the life of the insured; that such diseases rendered insured an uninsurable subject at the time the policies were applied for, and he would have continued to be uninsurable to the time of his death; that it believed and relied upon the representations, and would not have issued the policies, or either of them, had it known that such representations, or any of them, were not true; that said conditions, and each of them, weakened the physical stamina of the insured and directly contributed to his death; that the insured knew of such diseases and of his physical condition, and that in applying for and obtaining insurance without communicating the true facts to the defendant, and in misrepresenting such facts to the defendant, the insured committed a fraud upon it, and the plaintiff under such policies, because of such fraud, should not be permitted to recover of the defendant money not legally nor morally theirs; and defendant prayed judgment.

By supplemental petition the plaintiff, after a general demurrer and several special exceptions, alleged a general denial.

At the trial the defendant, under rule 31 (142 S. W. xx) of the district and county courts, took the opening and conclusion of the case.

The court defined a serious illness or disease as “one whose ailments and disorders are calculated to or tend directly to impair the general health or constitution of the person affected, or to produce death unless arrested, or to produce a vice in the constitution, and does not include such slight, temporary ailments as are calculated neither to affect nor threaten the general health or the constitution of the person so affected,” and submitted to the jury for answer the following special issues:

No. 1. “Had the insured, William Thomas Hicks, previous to the 28th day of October, 1914, had any serious illness or disease, as here-inabove defined to you? Answer ‘Yes’ or ‘No.’ ” To which the jury answered, “No.”
No. 2. “Was the attack of renal colic- which William T. Hicks had in June, 1914, or the passing' of the kidney stones at that time a serious illness or disease, as above defined to you? Answer ‘Yes’ or ‘No.’ ” To which the jury answered, “No.”
No. 3. “If you have answered the foregoing question No. 2 ‘Yes,’ then state whether such misrepresentations was a misrepresentation of material facts or of a fact which affected the risk assumed by the insurance company in writing the policies sued on?” This question the jury did not answer, since they had previously answered that the said Hicks had not had any serious illness or disease before the date of the policies.

Upon such finding the court rendered, judgment in favor of the plaintiff and against the defendant for the sum of $5,090.67, with interest thereon from date of judgment at the rate of 6 per cent, per annum, such judgment being $4,000 principal, $480 for 12 per cent, damage, and $500 for attorney’s fees, the balance being 6 per cent, interest on $4,000 from November 6, 1915, to the date of the judgment. The defendant filed a motion for a new trial, which was overruled, and the defendant excepted thereto. Defendant filed its application for writ of error, and seeks in this court a reversal of the judgment against it.

The first assignment of error is to the effect that the trial court erred in refusing to give to the jury, at the conclusion of the evidence, a special charge requested by the plaintiff in error directing the jury to return a verdict in its favor. It is urged, that this charge should have been given, because the “undisputed evidence shows that the policies of life insurance sued on were issued as a result of a material misrepresentation on the part of the assured,” in that in making application for the insurance he represented that he had not suffered any serious illness or disease prior thereto, whereas he had in fact, about three months prior to such application and the issuance of said policies, had an illness or disease known as renal colic, and had gravel and calculus in one or both kidneys and the canals leadipg therefrom, which illnesses and diseases were serious, and were material to and substantially affected the risk assumed by the insurance company in writing the insurance policies. Our conclusion is that the assignment must be overruled. In his application for the policies issued to him the assured, W. T. Hicks, stated that he had not, prior thereto, had any serious illness or disease except diseases incident to childhood, and the undisputed evidence shows that about four months before the making of said application the assured suffered an attack of renal colic; but we are not prepared to agree with the contention of appellant and say that the undisputed evidence established that the attack of renal colic suffered by the assured was, within the meaning of the language used in the application and as understood by the assured and the insurance company, a serious illness or disease., That such was its character as shown by much of the testimony cannot successfully be denied; but that the jury, from a consideration of all the evidence, was justified in finding as they did find, that the attack of renal colic suffered by the assured a few months before he secured the issuance of the policies in question was not in fact a serious illness or disease, must, we believe, be admitted. The. rule which has so often been announced by the decisions of this state is that the court is not authorized to take the question from the jury unless the evidence is of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Dr. R. B. McBride, representing the insurance company, examined the assured in October, immediately before the policies sued on were issued, and testified on the trial of this case. Among other things, he said:

“Renal colic defined, I guess, would be a pain originating in the urinary tract. It is a pain in the urinary tract. The urinary tract begins with the kidney under tube that leads from the kidney to the bladder. The tract includes the kidney itself and on down from the kidney to the bladder. Renal colic is a pain originating in that tract.” “If I were called to treat a man, having been called upon at some hour in the morning, anywhere from 9 to 12, and found him suffering with pain extending in the region of his kidneys and around in front, and if I diagnosed the case as renal colic, and prescribed diuretic at that time for the purpose of flushing the kidneys, and I returned the next day and found him well — not suffering from the effects of it in any way — I would consider it a serious proposition. He might be feeling well the next day and might not be a well man to me. If he had a stone, the infected kidney had caused it. That caused the nain the day before. It would not make any difference how easy he was the next day, I would consider it a serious proposition. I would not have recommended to the Ameiuean National Insurance Company as being an insux-able risk a man who within three to six months before the date of this examination had had a case of renal colic.”

On. cross-examination he said;

“I found no irregularity in the urine of the assured. I made the examination of him, October 28, 1914, and found the urine chemically normal. I also examined the lungs and his heart, and measured him and took his temperature and counted his pulse. He was a man of appai-ently normal physique. He was a fine physical speciman of manhood. I think from these measui-ements that he must have been one of the finest physical specimens of manhood I ever saw or ever examined for life insurance. I used the stethoscope to examine his lungs. I found nothing wrong with his lungs. I found nothing wrong with his heart. * * * I did not find any physical defects in the man at the time I made this examination, on the 28th day of Octobei-, 1914. The object of the physical examination to which a man who is applying for insurance is subjected is to determine whether he is sound physically. * * ⅜ In our office we have the most improved forms of instruments that are known and generally used for the purpose of ascertaining the true health of a man, When I first made this examination of Mr. Hicks I did not find any signs of any character or kind of disease that had existed in his kidneys. If there had been pus or kidney stones in his kidneys, the examination made would not necessarily have disclosed the fact.”

This witness further testified:

“If about the middle of June, 1914, a man is suffering with a slight attack of renal colic, in which he passes some 5 or 6 small stones about the size of a pin head or a little bit larger, and he is not confined to his bed, and is able to go to hfe work, and does go to work the Monday following, and thereafter feels no physical pain as the result of said illness, and I am then called upon to make a physical examination of him about the 28th day of October after that, and I make a thorough examination of him, and in that examination I am not able to disclose that there is any physical defoi'mity or defect or any disease or any defect of the kidneys from urinal examination or otherwise, I think the chances are good that that man was at that time in good physical condition and had not suffered with a serious illness.”

The testimony of the witness just quoted was given, it seems, in answer to a hypothetical question based upon evidence authorizing it. Dr. Trumbull testified, after stating that the assured, Hicks, died in October, 1915, as follows:

“I had occasion to treat him as a physician prior to his death. I was first called to see him some time in January, 1914 (evidently June, 1914). I saw him at his residence. He was in bed at that time. That was the first time I had ever been called to see him. I made an examination of him at that time and found that he had renal colic; that is, he was suffering with an attack of kidney stones and trying to pass kidney stones. That is about all 1 know to explain it. He was suffering from extreme pain, radiating from the hack down through the hip, down to the scrotum and testicles. I gave him some morphine diuretic. That is a drug to flush the kidneys. As a result of that treatment he improved. I think that was on .Saturday, as well as I remember, and I saw him again Sunday, and everything was all right. That was Saturday morning. He passed kidney stones at that time. At that time he had some stones there that he told me afterwards he had passed. I told him what they were when he showed them to me. At that time I did not give him any advice regarding an operation, but I advised him if he ever had any more trouble of that kind to have an X-ray picture made. Those stones that he passed, I think, were so small that they would not have been shown by an X-ray picture. Only about 20 per cent, of X-ray pictures are positive, because the stones are passed by the X-ray, and do not throw any shadow, and that would :be of no avail; but I told him if he had any _more trouble of that kind to have an X-ray picture made. Then we afterwards got the X-ray during his final illness. As I remember, it was on Sunday morning that I went to see him, and then I probably saw him, I think, again the following night, and the next morning I remember, making two days that I saw him. I did not see him professionally any more during the month of June. I was in the house and would inquire as to how he was feeling. I would go to the house to see some one else professionally. Pie was confined to his bed about two days or a day. I do not know how long, and I do not remember how long he had been suffering when I first saw him. I did not attach any importance to it at the time, and I did not try to remember; but as I remember he was in bed about 24 or 48 hours, not over 48 hours the whole time. After that I was not called to see him again until June, 1915, and he was in bed at that time. In 1914, when I first saw him, there was no other doctor with me in the case. In June, 1915, when I first saw him, there was no other doctor with me. In June, 1915, when I went to see him, I found that he had the same trouble. He passed some kidney stones in June, 1915. I think they were about the same size as the others. He was experiencing pain in June, 1915. At that time he was in bed three or four days. We did not have an X-ray picture made of him at that time. I suggested one. I think I saw him at that time four times — no, about three times — as well as I remember. After June, 1915, I treated him later in June for appendicitis. There was no other doctor in the case with me then for about 48 hours. Then Dr. Thomason came. As well as I remember, about a week, probably eight or nine days, elapsed between the first time T saw him in 1915 and the last time. Pie had gotten up between those times and .was at his work. When I was called to see him the second time in June, 1915, his pain was over his appendix. I diagnosed his case and concluded that it was appendicitis. He had a very bad appendix. I saw him one night about 11 or 12 o’clock. I tried to get him to the hospital, but he did not want to go. Then I saw him the next morning and the next evening, and then I saw him the next morning and told him that if he was not better by noon he would have to go to the hospital. At noon he was no better and I told him he would have to do one thing or the other — go to the hospital or get another doctor. When I say, ‘Go to the hospital’ I wanted-him to be operated on, and so he asked that I call Dr. Thomason, and he agreed with me; and after talking around about an hour or so we got him to go to the hospital, and we operated on him and found a very bad, ruptured, gangrenous appendix. In June, 1914, stones that he had passed were very small, about the size of a pinhead or a little bit larger. I believe there was one of tjiem about the size of a very small pea. It was a little bit larger than the rest of them. There were five or six about the size of a pinhead. In June, 1915, they were about the same size, quite a few the size of a pinhead and there were several others as large as the largest he had passed before. I did not see any kidney stones pass from him. All that I know is what he told me about the stones having passed. I think that I waited on him for a second attack of renal colic about the 10th of June, and it lasted three or four days. He was in bed most of the time during that period, a greater part of the time. I was successful in giving him relief and curing him from that attack, and he recovered and went to his work again. I do not think that the case of renal colic which I had treated him for in June, 1914, contributed or added to or caused his death.”

Dr. Grigsby, introduced by the defendant in error, who was treating the assured, Hicks, at the time of his death, testified that Mr. Hicks had evidence of sepsis or blood poisoning, and that in his opinion the death of Mr. Hicks was caused by multiple abscesses of the liver following appendicitis; that poisons don’t generate in the kidneys; that they generate in the blood, and are not thrown out through a diseased kidney. He further said:

“If there are stones in the kidneys and the urinary canal which are pronounced enough to cause an attack of renal colic, and after considerable pain some of these stones pass out, I don’t think those stones set up inflammation enough in the kidney and the urinary tract together for the poisons to get into the blood and be carried to other parts of the body, unless the stones were there in the kidney, and they would show evidence of being there by pus and blood in the urine. A" stone in this cheesy looking substance constituting the kidney may set up irritation like a piece of hard substance in the eye might set up irritation in the eye, although it is known that very large stones have been found in the kidneys that did not cause irritation. But stones do cause trouble.”

Dr. Howell testified in part:

“I am not a practicing physician. I am medical director for the Southwestern Life Insurance Company. If a man had one attack of renal colic and passes 5 kidney stones the size of a pinhead, and one about the size of a small pea, in the early part of June, 1914, and then in the early part of June, 1915, he had another attack of renal colic, and passes kidney stones of the same size and number and some of a little larger size, or the same size, the man would necessarily have an attack of excruciating pain in passing the stones. This would not have any effect upon his system generally as to the resistance of disease. Individuals may appear perfectly healthy and normal and just have these attacks intermittently.”

Dr. Thomason testified, among other things, as follows:

“I am engaged in the practice of medicine and surgery. The style of my firm is Drs. Samuels, Thomason, I-Iill, Roelke & Trumbull. I was acquainted with W. T. Hicks during his lifetime. I was called upon to treat him professionally in June, 1915. I made a diagnosis of his case at that time. I found him suffering with a bad form of appendicitis. I advised an immediate operation. That was along about 12 o’clock, I judge, and along between 2:30 and 3 I operated on him. I performed the operation. On examination before the operation, you could feel a decided mass, pretty badly swollen and pretty tender. After cutting down and getting down inside of the abdominal cavity, through the peritoneum, there was a pretty considerable lot of free fluid pus coming out of him when I opened up the peritoneum.^ Then the appendix was a whole mass of adhesions. We separated this mass from the appendix. The pus, quite a bit of pus, came out. The appendix was very black and rotten and was bursted and the odor was distinct. I followed the treatment of Mr. Hicks for a couple of weeks. He was in the hospital. He left the hospital at about the end of two weeks. I think his death was due to a ruptured, gangrenous appendix. He was thoroughly septic at the time of his death, but I think that resulted from the appendix. A man who was suffering with an attack of renal colic which would come to him some time during the forenoon, and he is attended by a physician who gives him the general treatment for the relief of renal colic, and during the day he passes 4 or 5 or 6 small kidney stones the size of a pinhead and one the size of a small pea, and who is seen again by the physician probably during the same evening, later in the evening, and is found not suffering seriously, and is again attended by the physician on the following Sunday morning, and found not to be suffering from any of the ill effects of the recent attack, and he goes about his wprk on Monday without any ill effects from the recent attack, and keeps at his work for a period of four months or more without any recurring attack of renal colic, and without any attack of any disease of any character or description whatsoever intervening between that sickness and the 28th day of October, in my opinion as to whether the man was suffering from a serious illness or disease at the time he was treated, I would not think that would be a serious condition.”

We have not attempted to state the testimony in full. It is conflicting in important particulars, but sufficient, as that portion quoted shows, to sustain the findings of the jury and the judgment of the court based thereon. It does not, as we believe, in legal contemplation, fall short of any evidence tending to show, in answer to the defense set up by the plaintiff in error, that the assured, Hicks, had not had any serious illness or disease prior to making application for and securing the policies sued on. On the contrary, there is substantial evidence, we think, to sustain the finding of the jury that the attack of renal colic which the assured had or the passing of kidney stones, in June, 1914, prior to the making of his application for the insurance, was not at that time a serious illness or disease. The testimony' very clearly shows that the assured died from the effects of appendicitis, and that the renal colic with which he suffered contributed nothing thereto.

The medical examiner’s report to the insurance company cannot, in our opinion, be considered as a part of the insurance contract entered into between the company and the assured, Hicks. It is not mentioned or referred to in any way in the policies, nor do we find anything in the report itself either expressly or impliedly making it a part of said contract. The written application of the assured, however, is by the express terms of the policies -made a part of the contract and is attached to the same. Our statute provides that every policy of insurance issued or delivered within this state on or after the 1st day of January, 1910, by any life insurance company doing business within this state, shall contain the entire contract between the parties, and the application therefor may be made a part thereof. Besides, the policies issued to the assured, Hicks, contain a provision that the policy and application therefor shall constitute the entire contract between the parties. The medical examiner’s report showing that the assured therein stated that he had never had renal colic, gravel, or calculus is an instrument entirely separate from the policies and the application therefor, and is not, by reference or otherwise, made a part of either, and under our statute cannot, it would seem, constitute any part of the contract of insurance. Therefore the statement in said report that the assured had never had renal colic, gravel, or calculus, if false, cannot be invoked to annul the policies. Each of the policies declare that it is to be incontestable after one year from the date of its issuance, and it may be conceded that article 4951, Vernon’s-Sayles’ Civil Statutes, “providing that the falsity of statements made in the application for insurance shall constitute no defense to a suit to recover upon the policy, unless the misrepresentation was in relation to a matter material to the risk or contributing to the contingency or event rendering the policy due and payable, has therefore, no application.” Blackstone v. Ins. Co., 107 Tex. 102, 174 S. W. 821. But, as in Blackstone’s Case, the case here turns upon the question whether the statement of the assured in his application for the insurance policy sued on, to the effect that he had never had any serious illness or disease prior to the making of said application, is to be regarded as untrue; and the evidence being sufficient, as we have held, to take that question to the jury as' an issue of fact for their determination, it was settled by their verdict in favor of the defendant in error. It cannot, in our opinion, be correctly held, under the evidence before us, as a matter of law, that the attack of renal colic suffered by the assured, Hicks, about four months prior to the issuance of the policies in suit, was “a serious illness or disease.” As before said, whether it was or was not such a disease or illness became under the evidence an issue of fact.

The second assignment of error will also be overruled. The jury having found that the assured had never had a serious illness or disease before the date of the policies in question, there was no error in refusing to submit the issue requested by the plaintiff in error to the effect that if they should find that the assured made a misstatement in his application as to a former serious illness or disease, then answer whether or not such misstatement was fraudulently made.

Tiie third assignment of error contained in plaintiff in error’s brief is, in substance, that the trial court erred in entering judgment for the defendant in error for the penalty of 12 per cent, and the attorney’s fee- of 1600. The contention is that this was error because there was neither pleading nor evidence upon which to base such judgment. No such question was raised in the trial court, and it is presented here as fundamental error. Whether it should be regarded as such error may he seriously doubted, but since the plaintiff in error secured and exercised, under rule 31, the right to open and conclude the argument of the case before the jury by admitting that defendant in error, plaintiff below, had a good cause of action as set forth in her petition, except so far as it might be defeated in whole or in part by the facts of the answer constituting a good defense, which might be established on the trial; and since the fácts alleged in the answer of the plaintiff in error to defeat the cause of action set forth in the petition of the defendant in error were that the policies sued on had been obtained by the assured by reason of a false statement that he had never had a serious illness or disease before the date of the policies sued on and in no way charged that a demand for the payment of said policies had not been alleged or made, the right to recover the penalty and attorney’s fee was admitted and judgment therefor was properly entered.

' The récord fails to show that the Emerson-Brantingham Implement Company had any such interest in policy No. 25517, sued on, as made it a necessary party to the suit, and the court correctly rendered judgment in favor of the defendant in error for the full amount of both policies, and the penalty, interest, and attorney’s fees.

The fifth assignment of error is to the effect that the court erred in refusing to submit to the jury the following issue requested by the plaintiff in error:

“Was the misstatement made by Wm. T. Hicks in the medical examiner’s report signed by him, to the effect that he had never had renal colic, gravel, or calculus, a misrepresentation of a material fact or of a fact which affected the risk assumed by the insurance company in issuing the policy sued on?”

The medical examiner’s report, as we have held, formed no part of the contract of insurance entered into between the insurance company and the assured, Hicks, and any false statement Mr. Hicks may have made therein to the medical examiner of the insurance company would not, under our law, as we understand it, be ground for avoiding the policies. The requested issue was therefore properly refused.

The’ special issues requested and refused by the court, the refusal of which is made the basis of the sixth assignment of error, were substantially as presented by the plaintiff in error submitted in the court’s charge to the jury, and’ hénce the refusal' to submit them in the form requested was not error.

As shown in a former part of this opinion, the court charged the jury as follows :

“A serious illness or disease is one whose ailments and disorders are calculated to, or tend directly to, impair the general health or constitution of the person affected, or to produce death unless arrested, or to produce a vice in the constitution, and does not include such slight temporary ailments as are calculated neither to affect nor threaten the general health or constitution of the person so affected.”

This portion of the court’s charge is assigned as error, and the proposition asserted is as follows:

“In a suit upon a life insurance policy, where the defenses of fraud and misrepresentation are supported by evidence that the assured in his application stated that he had not had a serious illness or disease or had renal colic, or gravel, or calculus, when in fact he had an attack of renal colic a short time before his application was made, and another attack shortly after his application was made, and died, it is reversible error for the trial court to incorrectly define ‘serious illness or disease.’ ”

The assignment of error refers to the bill of exceptions reserved to the charge for a statement of the reasons why it is erroneous. Looking to that bill, we find that the charge was excepted to (1) because it is an incorrect, misleading, and a prejudicial definition of the terms “serious,” “illness,” or “disease”; (2) because it had the effect of placing upon the defendant a burden of proof greater than that imposed upon it by law; (3) because the charge operated to exclude from the consideration of the jury the proof introduced by defendant showing that Wm. T. Hicks had had an attack of renal colic, 'gravel, and calculus about three months prior to making application for the policies of insurance sued on, and that he falsely and fraudulently represented to the defendant insurance company that he had not had such illnesses or diseases. Neither the assignment of error, the proposition thereunder, nor the objections to' the charge undertake to point out specifically wherein or in what particular the definition of the term “serious illness or disease,” is incorrect. And the most the objections urged to the charge in the bill of exceptions do is to point out its effect upon the matters referred to in said objections. Answering these objections to the charge it is sufficient to say, we think, that it did not have the effect to prejudice the rights of the plaintiff in error in either particular claimed. But we think the charge is substantially correct. In May on Insurance, vol. 1, § 296, it is said:

“A serious illness must be one which permanently impairs the constitution and renders the risk more hazardous.”

Likewise, in Bacon on Life and Accident Insurance, § 289, it is said:

“Before any temporary ailment can be called a disease, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon general health and the continuance of life, or such as, according to common understanding, would be called a disease. A severe sickness or disease does not include the ordinary diseases of the country, which yield readily to medical treatment, and, ended, leave no permanent injury to the physical system, but refers to those severe attacks which often leave a permanent injury and tend to shorten life. Clearly the term severe or serious illness does not mean slight temporary physical disturbances or ailments, speedily and entirely recovered from, not interfering materially with the pursuit of one’s avocation.”

Thus very clearly and accurately has the term “serious illness” been defined, and, tested by such definition, the charge of the court under consideration is very slightly, if at all, imperfect, and amply sufficient, as was its purpose, to guide the jury in determining, under the evidence submitted, whether or not the assured, Hicks, had had any serious illness or disease prior to the date of the policies of insurance sued on.

The defendant in error, Mrs. Leona Hicks, testified that at the time the assured, her husband, took sick, in June, 1914, she was not at Dallas with him; • that she had gone home on account oí her mother’s death. She was then permitted to say, over the objection of the plaintiff in error, that when she left Dallas the assured was in perfect health. The admission of this testimony is complained of, and we think the complaint well founded. The statement allowed was but the conclusion of the witness, and there is no pretense that she was qualified to speak as an expert. We are of the opinion, however, that it cannot reasonably and fairly be said that this error was calculated to and did cause the rendition of an improper verdict and judgment. On the contrary, we think it should be regarded as harmless, and that the assignment of error presenting it should be overruled.

There are several assignments of error that have not been mentioned and discussed. These assignments have been duly considered. The questions raised by some of them have been disposed of by us adversely to the contention of the plaintiff in error, and those not so disposed of disclose no reversible error.

Believing the judgment should be affirmed, it is so ordered.

Affirmed.
      <@=»Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER in al! Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    AMERICAN SURETY CO. OF NEW YORK v. PHILLIPS et al.
    (No. 1839.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 14, 1917.
    Rehearing. Denied Nov. 22, 1917.)
    Principal and Surety &wkey;>73 — Breach—Liability — Attorney’s Fees.
    Plaintiff purchased land which was subject to vendor’s lien notes and the seller delivered to her an indemnity bond, cotoditioned that in event the vendor’s lien notes should not be paid on or before maturity, the surety would indemnify plaintiff against all loss which might be incurred by her. The seller failed to pay all of the notes at maturity, whereupon the defendant surety acquired the outstanding vendor’s lien note and delivered to plaintiff a release of the lien. Held that, notwithstanding the technical breach, plaintiff, having suffered no loss, could not, in an action on the bond, recover as loss attorney’s fees incurred in prosecuting suit on the bond.
    Appeal from District) Court, McLennan County; Richard I. Monroe, Judge.
    Action by Mrs. Trannie H. Phillips against the American Surety Company of New York and another. From a judgment for plaintiff the named defendant appeals.
    Reversed and rendered.
    The action is by Mrs. Trannie H. Phillips against' the American Surety Company of New York and Mrs. A. C. Goodwin, to enforce the terms of an indemnity bond set out below. The plaintiff asked for attorney’s fees alleged, to have been incurred by her in the suit enforcing performance of the bond of indemnity, claiming that the terms of the bond included payment of attorney’s fees in the event of suit on the bond. The indemnity bond in evidence reads as follows:
    “Know all men by these presents: That we, Mrs. A. C. Goodwin, as principal, and the American Surety Company of New York, as surety, are held and firmly bound unto R. W. Phillips and Mrs. Trannie H. Phillips, his wife, in the sum of ten thousand ($10,000) dollars, lawful money of the United States, for the payment of which, well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents: Sealed with our seals, dated this 6th day of December, 1912. Whereas, Mrs. Fannie P. Nettles, heretofore conveyed to Mrs. A. C. Goodwin, by deed dated July 14, 1911, recorded in the deed records of Falls county, Texas, in volume 73, page 153, original lot No. 18, in Marlin, Texas, northwest of the public square, said lot being eight hundred and ninety-three (893) feet north and south by five hundred and seventy (570) feet east and west, containing eleven and sixty-eight one-hundredths (ll68/ioo) acres of land, for a consideration of twenty-three thousand, seven hundred and fifty ($23,750.00) dollars, namely, six thousand, six hundred and thirty-three dollars and thirty-five cents ($6,633.35) cash, and three vendor’s lien notes each for five thousand, seven hundred and five dollars and fifty-five cents ($5,705.55), of the same date as said deed, due on or before July 1, 1912, July 1, 1913, anfl July 1, 1914, respectively, bearing interest at the rate of seven per cent. (7%) per annum, and containing the usual attorney’s fee clause; the first of which notes has since been paid in full, and partial payment having been made upon the second of said notes, leaving a balance due upon the second and third of said notes amounting to a sum between ten thousand ($10,000) and eleven thousand ($11,000) dollars; and, whereas, said Mrs. A. C. Goodwin heretofore conveyed to George S. McGhee, by deed dated July 20, 1912, recorded in the deed records of Falls county, Texas,' in volume 79, page 50, forty-five (45) lots of the Goodwin addition to Marlin, Texas, as shown by plat recorded in the deed records of Falls county, Texas, volume 77, page 544, said lot being a part of the land conveyed to Mrs. A. O. Goodwin by Mrs. Fannie P. Nettles, as above stated, the consideration paid by said George S. McGhee being thirty-four thousand, one hundred dollars ($34,100.00), of which twenty-three thousand one hundred dollars ($23,100.-■00)' was paid in cash, and the balance being paid by said George S. McGhee assuming payment of the second and third vendor’s lien notes above mentioned, executed by Mrs. A. O. Goodwin, payable to Mrs. Fannie P. Nettles; and whereas, the said Mrs. A. C. Goodwin has conveyed to Mrs. Trannie H. Phillips, wife of R. W. Phillips, by deed dated September 26, 1912, that certain lot or parcel of land in the city of Marlin, Falls county, Texas, being a part of she Goodwin addition to the city of Marlin, and designated as the Goodwin homestead, and north half of (lot) No. 8 in block No. 1, Goodwin addition, and described by metes and bounds as follows: Beginning at the southwest corner of Lot No. 6 in block No. 2 of said Goodwin addition; thence west with the south line of said lot, two hundred and twenty-five (225) feet to a fifteen (15) foot alley; thence south with the east line of said alley, one ‘hundred and sixty-two (162) feet to the northwest corner of a lot heretofore sold to B. O. White; thence east with White’s north line two hundred and twenty-five (225) feet to his northeast corner in the west line of Perry street; thence north with the west line of Perry street, one hundred and sixty-two (162) feet to the place of beginning; and, whereas, said vendor’s lien notes above described constitute a lien upon the property conveyed by Mrs. A. O. Goodwin to Mrs. Trannie H. Phillips, as aforesaid; and, whereas, said Mrs. A. C. Goodwin desires to assure Mrs. Trannie H. Phillips that said notes will be paid at maturity, and the land conveyed to said Mrs. Trannie II. Phillips be relieved and discharged from the lien of said notes, and to indemnify said Mrs. Trannie H. Phillips against all loss which may be incurred by her in case said notes should not be paid at maturity: Now, therefore, the condition of this obligation is such that if said vendor’s lien notes should be paid on or before the dates when they are due, then this obligation shall be void; otherwise to remain in full force and effect. Provided, however-, and this obligation is upon the further express condition that no claim, suit, action or other proceeding, by reason of any default shall be brought against the principal or surety on this bond after the sixth day of December, 1914. [Signed] Mrs. A. O. Goodwin, Principal. [Seal.] American Surety Company of New York, by Paul Berghans, Res. Vice Pres. Attest: W. T. Deeherd, Res. Asst. Secy.”
    The last series of the note described in the bond, for the sum of $5,705.55 with one year’s interest, was not paid at maturity July 1, 1914, but the note was still held by the payee, Mrs. Fannie P. Nettles,- and remained a valid and subsisting incumbrance upon the property conveyed by Mrs. Goodwin to plaintiff. Under date of September 29, 1914, the plaintiff’s attorney wrote to the defendant surety company, advising it that said note had not been paid, and demanding that it pay or have paid said note and have the vendor’s lien against plaintiff’s said property released. The instant suit was filed by plaintiff on December 2, 1914; and after the suit, in the fall of 1915, the surety company purchased the vendor’s lien note from Mrs. Fannie P. Nettles, and took a transfer from her of the lien on December 13, 1915. On March 2, 1916, before trial of the case, the surety company delivered to plaintiff a release of the vendor’s lien so transferred to it, and the plaintiff accepted said release, but without prejudice to her claims in this suit for attorney’s fees. The court rendered judgment in favor of the plaintiff against the surety company for the attorney’s fees sued for.
    Spivey, Bartlett & Carter, of Marlin, for appellant. Oltorf & Oltorf, of Marlin, and Alva Bryan, of Waco, for appellees.
   LEVY, J.

(after stating the facts as above).

The appellee, the indemnitee, brought suit on the contract of indemnity executed by the surety company to enforce performance of that contract by compelling the surety company to discharge that obligation. It was alleged that the surety company was liable because there was a breach of the express terms of the contract, in that the maker of the vendor’s lien note had failed at maturity to pay to the payee the last vendor’s lien note. In the petition the plaintiff further sought to recover as costs attorney’s fees incurred by her in the institution of the suit against the surety company to enforce performance of the term of the bond of indemnity. And the question for review on appeal is tha.t of whether or not the court erred in allowing recovery for the attorney’s fees incurred in prosecuting the suit on the bond. The terms and extent of the surety company’s obligation of indemnity, as expressed in the contract, is, in the event the vendor’s lien notes should not be paid on or before the dates when they are due, “to indemnify said Trannie H. Phillips against all loss which may be incurred by her in case said notes should not be paid at maturity.” The words “all loss which may be incurred by her” mean and refer to the transaction indemnified against. And if it had been alleged and proven that the indemnitee had been compelled to pay the vendor’s lien note, according to its face and tenor, in order to protect her land against sale under foreclosure, she may, in the action on the contract of indemnity, be entitled to recover the amount so paid on the note, according to its face and tenor, which included attorney’s fees. Or if it had been alleged and proven that as a result of a suit against her she had been compelled to pay attorney’s fees to prosecute such suit, she may be entitled, in the action on the contract of indemnity, to recover the legal costs and attorney’s fees so expended by her. Schmick v. Noel, 72 Tex. 1, 8 S. W. 83; Roberts v. Palmore, 41 Tex. 619. In each of these instances the “loss” would have resulted from the transaction indemnified against. But the attorney’s fees here sought to be recovered are not a part of the “loss” incurred by reason of and arising out of the vendor’s lien note transaction indemnified against, as above illustrated. The attorney’s fees here sought to be recovered were only incurred to enforce performance of the terms of the bond of indemnity. And the bond of indemnity does .not, according to its terms, provide for nor entitle the indemnitee to recover the attorney’s fees as here sued for. The contract of indemnity which alpne created must determine the extent of the surety company’s liability both at law and equity; for there is no principle upon which a court of equity or law can enlarge the legal effect of the agreement. The bond is not governed, it is thought, by the articles of the statute referred to by appellee.

The judgment, as far as it pertains to attorney’s fees, is reversed; and in that particular only judgment is here rendered in favor of the surety company.

       — other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    COOPER GROCERY CO. v. FERGUSON & HOLLAND et al.
    (No. 1823.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 12, 1917.
    Rehearing Denied Oct. 4, 1917.)
    1. Guaranty <&wkey;36(2) — Construction—Liability.
    An instrument by which one party guaranteed to plaintiff, “unconditionally, the payment of any indebtedness” of defendant to plaintiff, “not exceeding $4,000, and any indebtedness created this day or hereafter,” made the guarantor liable for the entire debt, whenever created, in case of the principal’s bankruptcy.
    2. Guaranty <&wkey;91 — Liability—Evidence.
    The guarantee made out prima facie .case by showing the guaranty, the bankruptcy of the principal, the purchase of the principal’s accounts from the trustee, and the credit of its claim in the amount bid for such accounts.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Action by the Cooper Grocery Company against Ferguson & Holland and C. L. Hardi-son. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    W. L. Eason, of Waco, for appellant. S. E. Stratton, of Waco, for appellees.
   HODGES, J.

The Cooper Grocery Company, a corporation, sued Ferguson & Holland and C. L. Hardison to recover the balance due upon four promissory notes theretofore executed by Ferguson & Holland, the payment of which to the extent of $4,000 had been guaranteed by Hardison. Ferguson & Holland were discharged upon their plea and proof of bankruptcy. The claim of * liability on the part of Hardison was based upon a contract of guaranty. The evidence shows that Ferguson & Holland during the year 1913 were merchants owning a stock of goods amounting to $10,000 or more. Among their creditors was the appellant, Cooper Grocery Company, to whom they owed the sum of $4,000 due the latter part of January and the first of February, 1914. C. L. Hardison was desirous of purchasing that stock of goods in bulk, and for some time conducted negotiations with the Cooper Grocery Company for the purpose of securing its consent to such purchase and a waiver of whatever rights it might. have against the stock of goods under the bulk sale statute. On the 27th day of January, 1914, those negotiations culminated in an agreement by which the appellant consented to extend the indebtedness due it from Ferguson & Holland if Hardison would guarantee the payment of the debt at maturity. Accordingly, on that date Ferguson & Holland executed four promissory notes aggregating $4,000, by which they promised to pay that amount of money on the dates stipulated in the notes, together with interest and attorney’s fees. On the same date the appellee Hardison executed and delivered to the Cooper Grocery Company the following written contract of guaranty:

“In consideration of the sale of any kind of merchandise by the Cooper Grocery Company to Ferguson & Holland, I, we, or either of us, hereby guarantee to them and their assigns, unconditionally, the payment of any indebtedness of said Ferguson & Holland to the said the Cooper Grocery Company, now residing and doing business in the city of Waco, county of McLennan, state of Texas, not exceeding the sum of four thousand no/100 dollars, and any indebtedness created on this day or hereafter until notice in writing, and I, we, or either of us, consent to any extension of payment made, or hereafter made, and waive notice thereof, and waive the necessity of protest, notice and suit in all cases between said parties, and consent that the form of said indebtedness may be changed from account to note, bill, or other commercial paper; and I, we, or either of us, agree to pay interest at the rate of ten per cent, per annum from date agreed upon by said purchasers, and ten per cent, attorney’s fees, if said debt is placed in the hands of an attorney for collection; and I, we, or either of us, further guarantee that said indebtedness shall be paid in Waco, McLennan county, Texas.”

At the conclusion of the evidence in the trial below, the appellee Hardison filed a motion asking that a peremptory instruction be given in his favor. The motion was granted, the instruction given, and from the verdict and judgment entered thereon the Cooper Grocery Company has prosecuted this appeal.

There are several assignments present ed in appellant’s brief, complaining, in different forms, of the action of the court in giving the peremptory instruction. While the appellee pleaded a number of different defenses, the principal contention urged in this appeal in support of the court’s ruling is: First, that the contract heretofore set out does not include within its terms any indebtedness of Ferguson & Holland existing prior to the date of its execution; and second, that the state of the evidence was such that no judgment could have been rendered in favor of the Cooper Grocery Company foi any definite sum. An examination of the contract of guaranty shows that it is broad enough in terms to include debts of Ferguson & Holland theretofore existing. The contract, after stating, “I, we, or either of us, hereby guarantee to them and their assigns, unconditionally, the payment of any indebtedness of s,aid Ferguson & Holland to the said the Cooper Grocery Company, * * * not exceeding the sum of four thousand n’o/100 dollars,” adds the following: “And any indebtedness created on this day or hereafter until notice in writing,” etc. The language last quoted expressly included contemporaneous and future debtá. That which precedes was manifestly intended to include pre-existing debts. Moreover, testimony admitted without objection tended to show that the principal, if not the sole, object in taking this contract of guaranty, was to secure indebtedness of Ferguson & líolland then existing. In consideration of its execution, Hardison was permitted to purchase, free from liability, a stock of goods to which the appellant might have resorted for satisfaction of its debt against Ferguson & Holland.

It appears that Ferguson & Holland assigned to the appellant as collateral security a number of notes and accounts, with the understanding that whatever amounts were collected on them should be applied as credits on their indebtedness to the appellant. After Ferguson & Holland had filed their voluntary petition in bankruptcy, the appellant, in order to share in the dividends resulting from the administration of the bankrupt estate, surrendered those collateral notes and accounts to the trustee in bankruptcy. They were subsequently sold by the trustee at public auction, and both Hardison and the appellant were bidders at that sale. Appellant’s bid, however, being the highest, the notes and accounts were sold to it for $1,000, and that amount was credited on the notes of Ferguson & Holland. This sum, with some collections previously made, constituted all of the credits to which the appellee was entitled. While the evidence as to the exact amount of those collections is not as clear as it might have been, it was sufficiently specific to support a judgment for a definite sum. We therefore conclude that the appellant made out at least a prima facie case to recover in the court below, and that the peremptory charge to return a verdict for the defendant should not have been given.

Appellant insists that if the case is reversed judgment should here be rendered in its favor for the amount of the notes, together with interest and attorney’s fees, less the credits shown. But under the rule laid down by our Supreme Court in Eberstadt v. State, 92 Tex. 94, 45 S. W. 1007, we think the proper disposition of the case is to remand it for another trial. It is our duty to require the court below to do upon another trial what it should have done upon that trial; that is, to submit the issues of fact to the jury after hearing all of the evidence which the parties were entitled to introduce. The court should have overruled the motion to give the peremptory instruction, and in that event the defendant below would have been entitled to offer such evidence as was available for the purpose of presenting his defenses. We are of the opinion that he has not lost that right by the action of the court in sustaining his motion and necessitating an appeal to this court.

The judgment will therefore be reversed, and the cause remanded for another trial.
      <Sss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe»


author: WILLSON, O. J.

text:
    EVANS v. FORTNER et al.
    (No. 1843.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1917.
    Rehearing Denied Nov. 22, 1917.)
    1. Partition <&wkey;G3(l) — Burden of Proof — Homestead.
    Defendant has the burden of showing that property sought to be partitioned by his wife’s heirs constituted his homestead.
    2. Homestead c&wkey;32 — What Constitutes.
    To constitute a homestead, there must be actual occupancy and use as such, or an intention to do so, coupled with some acts indicating the intention.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Homestead.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Partition suit by Mrs. Viola Fortner and others against J. S. Evans. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Appellant and Mary A. Mitton, a widow, were married in 1878. In February, 1892, they purchased three unimproved building lots (50 by 140 feet each, and numbered 1, 2, and 3, respectively) in Texarkana, around which they at once constructed a fence. In the fall of that year (1892) appellant built a dwelling house on lot 3, having segregated it from lot 2 by a fence constructed on the line between them, and a few years later built a dwelling house on lot 2, part of which, by a fence constructed thereupon, he had segregated from the remainder thereof and from lot 1. The houses were built to rent, and Were never used or occupied by others than tenants. In the fall of 1900 or 1901 appellant constructed a dwelling house on lot 1, which, with a part of lot 2, had been segregated, as stated, from the remainder'of the land, and thereafterwards, until the death of Mrs. Evans in 1914, occupied and used this dwelling house, and lot 1 and the part of lot 2 inclosed with it as his home, and after the death of his wife continued to so occupy and use same. Appellee Mrs. Viola Fortner was the daughter of Mrs. Evans by her first husband and was her only heir. The suit was by Mrs. Fortner, joined by her husband, against appellant, to partition lot 3 and the part of lot 2 not inclosed, as stated, with lot 1. The defense interposed by appellant was that said lot 3 and said part of lot 2 were a part of his homestead, and therefore were not subject to partition during his lifetime, or so long as he elected to use or occupy same as a home. The court, before whom the trial was had without a jury, found facts as stated above, and further found:
    (1) That the property Mrs. Fortner sought to have partitioned belonged to the community estate between her mother (who died intestate) and appellant; (2) that at the time he improved the three lots as stated appellant dug a well on each of them, and afterwards continuously “rented out lots 2 and 3 to tenants whenever he could procure tenants therefor, and has never lived on or used either of lots 2 or 3 for homestead purposes, except the small portion of the north side of lot No. 2 inclosed with lot No. 1, but, on the other hand, it was his purpose to use lots 2 and 3 for the purposes of renting them out to tenants and thereby securing an income from which to partially make a living”; and (3) that all of lot No. 2 not inclosed with lot No. 1 and all of lot No. 3 were subject to partition.
    Tbe appeal is from á judgment directing a partition to be made as prayed for by Mrs. Fortner.
    E. Newt Spivey and E. E. Weaver, both of Texarkana, for appellant. Mahaffey, Keeney & Dalby, of Texarkana, for appellees.
   WILLSON, O. J.

(after stating the facts as above). Assuming, as he does in his brief, that it appeared from the testimony that the three lots purchased by him in 1892 became his homestead within the meaning of the Constitution (article 16, §§ 51, 52) and laws (3 Vernon’s Stat. art. 3786 ; 2 Vernon’s Stat. art. 3429), appellant insists that it did not appear that lot 3 and the part of lot 2 in question ever ceased to be a part of such homestead; and he further insists that the trial court therefore erred when he directed a partition of said lot 3 and part of lot 2 as prayed for by Mrs. Fortner. The assumption that the three lots when purchased by appellant, or that lot 3 and the part of lot 2 in question ever thereafterwards, became his homestead, is not authorized by anything we have found in the record. There was no testimony showing, or tending in the least to show, that appellant intended, when he purchased the three lots to subject them, or either of them, to use as a home, or that he ever afterwards intended to subject, or in fact did subject, lot 3 and the part of lot 2 in question to such use. On the contrary, it appeared from appellant’s own testimony as a witness, not only that he never used lot 3 and said part of lot 2 for the purposes of a home within the meaning of the Constitution (Blum v. Rogers, 78 Tex. 530, 15 S. W. 115; Heatherly v. Little, 21 Tex. Civ. App. 664, 52 S. W. 980; Wurzbach v. Menger, 27 Tex. Civ. App. 290, 65 S. W. 679), but that he, instead, shortly after he purchased same, constructed a dwelling house on said lot 3, and a few years later a dwelling house on said part of lot 2, which he ever afterwards rented to tenants. With reference to said houses he testified that he “had them to rent, and that was the purpose that I built them for — for me in my old age, and to make a support for me; that’s what I built them for exactly.”

The burden was on appellant to show that said lot 3 and said part of lot 2 became homestead at the time or after the time he purchased same. He could have discharged the burden in no other way than by proving, and he did not, “actual occupancy and use of the property as a homestead, or a present intention' to so use it, coupled with some acts indicating such intention.” Fisher, C. J., in Wilkerson v. Jones, 40 S. W. 1046. And see Crabtree v. Whiteselle, 65 Tex. 1ll; Cobb v. Collins, 51 Tex. Civ. App. 63, 111 S. W. 760; Johnson v. Burton, 39 Tex. Civ. App. 249, 87 S. W. 181.

There is no error in the judgment, and it is affirmed.
      <gs»For other cases see same topic and KEY-NTMBER m all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEMPLE TRUST CO. et al. v. PIRTLE.
    (No. 1825.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 29, 1917.
    Rehearing Denied Oct. 4, 1917.).
    1. Mortgages <§=>546 — Foreclosure—Sale-Rights of Purchaser — Leases—Crops.
    A mortgagor by demising Ms land before foreclosure may sever the crops from the realty and a sale of the land under foreclosure will not convey title to the crops whether matured or not, the lessee having the right of ingress and egress for the purpose of cultivating and harvesting the crops.
    2. Mortgages <&wkey;546 — Foreclosure—Sale-Rights of Purchasers — Leases—Crops.
    Where a mortgagor before foreclosure demised grass lands, the lessee is entitled to the crops and to enter and sever the same though the grass was a natural growth of the soil.
    3. Mortgages <&wkey;536 — Foreqlosure—Sale-Rights of Purchasers — Crops — Leases— POSSESSION.
    Where plaintiff was in possession of mortgaged lands before foreclosure under a contract of lease with the mortgagor, his possession was notice to the mortgagee who bought in the land at foreclosure of his rights to the crops.
    4. Appeal and Error <&wkey; 1068(3) — Review-Harmless Error.
    Where a peremptory charge for plaintiff would have been justified, defendant cannot complain of errors in the charge.
    5. Appeal and Error <&wkey;1004(l) — Review-Verdict.
    Where there was substantial evidence-to support the amount of the verdict, it is not subject to attack on appeal as excessive.
    Appeal' from District Court, McLennan County ; E. J. Clark, Judge.
    Action by M. S. Pirtle against tbe Temple Trust Company and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    By an instrument dated April 1, 1914, and filed for record in McLennan county April 4, 1914, D. H. Orand and I. C. Orand, to secure tbeir indebtedness to the appellant trust company, conveyed to it a tract of land in said McLennan county containing about 450 acres and known as the “Orand Hay Earm.” October 27, 1914, the Orands and appellee entered into a contract, in writing, whereby the former leased the land to the latter for the year 1915. By the terms of the agreement the Orands were to furnish appellee work animals, tools, and machinery for use by him in cultivating and harvesting crops grown on the land, and appellee was to incur the other expense necessary to enable him to grow and harvest such crops, and was to deliver one-half of same when harvested to the Orands at a place specified. Afterwards the trust company commenced a suit and prosecuted same to a judgment, entered June 11, 1915, in its favor against the Orands for the amount of their indebtedness to it, and against them and O. L. Pirtle, a son of appellee, foreclosing the mortgage above referred to and directing a sale of the land for the purpose of satisfying said indebtedness. Appellee was not a party to this suit. At a sale made by appellant S. S. Fleming, as sheriff of McLennan county, August 3, 1915, as directed by a writ ordering a sale of the land as provided in the judgment, in his hands for execution, the trust company was the purchaser. At the instance of said trust company the sheriff, in further execution of the writ, on September 24, 1915, ejected appellee from the land and placed the trust company in possession thereof. Claiming that by virtue of his contract with the Orands he owned one-half of crops then growing on the land, which appellants by ejecting him therefrom prevented him from harvesting and marketing, appellee brought this suit against the trust company and sheriff for $1,662.50 as the damages he suffered by reason of their act in so ejecting him. The appeal is from a judgment in his favor for $900.
    Tirey & Tirey, of Waco, and W. O. Cox and Sam D. Snodgrass, both of Temple, for appellants. Cross & Rogers, of Waco, for appellee.
   WILLSON, C. J.

(after stating the facts as above). In Willis v. Moore, 59 Tex. 629, 46 Am. Rep. 284, it was held that:

“A mortgagor is entitled to sever in law or fact tkte crops which stand upon his land at any time prior to the destruction of his title by sale under the mortgage.”

And in Brown v. Leath, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42, it was said that a lease of land by the mortgagor—

“severed the right to the rents from the realty, and the sale of the land under the” mortgage did not convey “the title to the rents or the crop on the premises standing at the date of the sale, whether mature or not. The lessee had the right of ingress and egress for the purpose of gathering and preparing the crops for market or use.”

It was not contended in the court below, it seems, and is not here, that there was anything in the terms of the contract between the trust company and the Orands evidenced by the mortgage referred to in the statement above, which rendered the rulings made in the cases cited inapplicable to this one. On the contrary, we understand appellants to be in the attitude of conceding the law as determined in those cases to be applicable to this one, unless the fact, as they assert, that the crop of Johnson grass in question here was “not produced by annual cultivation,” but was “the natural growth of the soil,” calls for the application of different principles. As we understand the record, it does not show the existence of the fact asserted. There was testimony that “working the ground helps Johnson grass for hay,” and that the ground on which the crop appellee owned an interest in was growing when he was evicted from the land “had been cultivated and worked.” But if it appeared that the fact asserted existed, following the decision in Kreisle v. Wilson, 148 S. W. 1132, we would hold that it did not render inapplicable the rule recognized in the cases cited.

The law being as stated, and it conclusively appearing, as it did, that appellee, by virtue of his contract with the Orands, owned one-half of crops on the land, and that he was prevented by acts of appellants from harvesting and disposing of same, it is clear appellee was entitled to recover the amount of damages the testimony showed he had suffered, and that the court should have so instructed the jury, unless the contention made by appellants that the trust company was in the attitude of an innocent purchaser of the crops was supported by testimony. We have found no such testimony in the record. On the contrary, it conclusively appeared that appellee, either in person or by his agents, if not in both ways, was in actual possession (by residing thereon) of the land on which the crops were growing, during the year 1915, until he was evicted therefrom, and that the trust company made no inquiry whatever, either of him or his agents, to ascertain by what right he or they were in possession of the premises. Under such circumstances the trust, company was chargeable, as a matter of law, with knowledge of the fact that appellee owned an interest in crops on the land, and therefore it was not entitled to claim such interest as an innocent purchaser thereof. Cyc. 1744 et seq., where the authorities are collated.

As, in the view taken by us of the record, it would not have been error had the trial court told the jury to find in appellee’s favor, it follows we are of opinion the assignments in which appellants complain of the action of the court in instructing the jury as to rules which should control them in determining whether appellants were liable to appellee or not, and his action in' refusing instructions requested by appellants as to that phase of the case should be overruled.

It appears, from a careful reading of the record in connection with the contention made that the verdict “is grossly and unconscionably excessive,” that there was testimony which would have authorized a finding by the jury that the amount of damages suffered by appellee was in excess of the sum named in their verdict. The jury had a right to believe the testimony referred to, and we haré found nothing in the record which we think would justify us in setting aside their finding based on it.

Other contentions made in appellants’ briefs are regarded as untenable, and therefore are overruled.

The judgment is affirmed.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered.Digests and Indexes


author: BOYCE, J.

text:
    HOSKINS et al. v. CAUBLE.
    (No. 1247.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1917.)
    1. Appeal and Ekboe &wkey;>71(3) — Appealable Obdees — ‘ ‘Tempobaby Injunction” — Statute.
    A “temporary injunction,” within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644, providing for appeals therefrom, means that interlocutory injunction provided for by the other articles of the chapter, and is not restricted to a restraining order (citing Words and Phrases, First and Second Series, Temporary Injunction).
    2. Injunction i&wkey;140 — Tempobaby Injunction — SUFFICIENCY OF PETITION.
    Where a petition prays for a permanent injunction “on final hearing,” and does not ask for a temporary injunction, the latter cannot be granted.
    3. Injunction &wkey;»54 — G-eounds fob — Animals.
    One in possession of land containing 200 cows with calves may obtain an injunction as to a trespasser who persistently tears down the fences and turns steers among them, to their irreparable injury, and it is not necessary to show there is no adequate remedy at law, or that plaintiff’s lease runs from the rightful owner.
    Appeal from District Court, Castro County; R. C. Joiner, Judge.
    Petition by E. G. Cauble to restrain Elmer Hoskins and others from trespassing on his land. Prom an order granting an interlocutory injunction, defendants appeal.
    Reversed and injunction dissolved.
    Kimbrough, Underwood & Jackson, of Amarillo, for appellants. Martin, Kinder & Russell, of Plainview, for appellee.
   BOYCE, J.

This appeal is from an interlocutory injunction granted by the court below, without notice or hearing, and the questions presented are as to the jurisdiction of this court to entertain this appeal, and the sufficiency of the plaintiff’s petition to authorize the order for injunction. The plaintiff alleged that he was the “lessee in peaceable possession” of nine sections of land in Bailey county; that he had said land inclosed and had grazing thereon several hundred head of mother cows with their calves; that the defendants, owners of an adjacent ranch, tore down his fence and drove a large number of steers on plaintiff’s land; that plaintiff repaired the fence and defendants again tore it down and drove their steers onto his land, repeating this the third time, and were threatening to continue their acts of depredation and would continue to do so unless restrained; that the presence of such steers with plaintiff’s cows and calves would cause irreparable injury to them, the particular nature of which was stated; that such acts on the part of defendant were malicious, in utter disregard of plaintiff’s right, and without lawful excuse and without grounds for believing that such acts were lawful; that plaintiff had been actually damaged in the sum of $1,200 by such acts, and should recover exemplary damages in the sum of $10,000. Plaintiff’s prayer, after his statement of the cause of action of which the above is a summary, is as follows:

“Wherefore, premises considered,, plaintiff prays that defendant be cited to appear and answer herein, that, on final hearing hereof, he have damages against defendants in the sum of $11,200, for costs of suit, and a writ of injunction issued against the defendants and each of them, their servants and employés, restraining them and each of them from tearing down the fence of the plaintiff, or from turning their cattle upon the leased land of the plaintiff, or from molesting his. in any way, and for such other relief, general and special, legal and equitable, as he may show himself entitled to.”

The court, upon presentation of the petition, indorsed his fiat thereon, directing the clerk to “issue a writ of injunction in all things as prayed for in the within petition,” upon filing bond, etc.

Appellee contends that we have no jurisdiction of the appeal, as the injunction granted was not a “temporary injunction,” within the terms of article 4644. He concedes that the injunction granted could not be anything bnt interlocutory, though broadly it is a final adjudication, because the court had no power to grant anything -but an interlocutory injunction (Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579-580, Ann. Cas. 1917B, 121); but insists that the injunction would be a continuing one, subject to dissolution by the court, but otherwise in effect until final disposition of the case, and relies upon the authority of Riggins v. Thompson, 96 Tex. 154, 71 S. W. 15, to maintain his proposition that such an injunction is a permanent injunction and not a temporary injunction. This proposition may be sustained in one sense by the following language, used by Judge Gaines, in the case referred to:

“It is true that a ‘restraining order’ is an injunction, but the terms are commonly used to designate a temporary injunction, as distinguished from an injunction which is to remain in force during the pendency of the suit. The learned judge, in effect, directs that a restraining order shall be granted until it is determined whether a permanent injunction shall issue, which means an injunction to remain in force until the final determination of the suit and not an injunction granted upon the final trial, which is called a ‘perpetual injunction.’ ”

Whether this is strictly correct or not, many authorities use the words “preliminary,” “interlocutory,” and “temporary,” in reference to injunctions, interchangeably and as including within the meaning of such terms an injunction continuing until final hearing on the merits, unless modified by further order. Joyce on Injunctions, § 109; Cyc. vol. 37, p. 1798; High on Injunctions, § 3; R. C. L. vol. 14, p. 312; Words and Phrases (2d Ed.) vol. 4, p. 866; Id. (1st Ed.) vol. 8, p. 6901. As an illustration of the holding of these authorities we quote from Joyce as follows:

“Temporary or interlocutory injunctions are such as are to continue until the final hearing, or generally until further order.”

Article 4644 is a part of the chapter of the Revised Statutes providing for the issuance of interlocutory, preliminary, or temporary injunctions, whatever may be the correct designation of an injunction issued preliminary to the final disposition of the case on its merits, and an examination of the article in connection with the preceding and succeeding articles of this title of the statutes, makes it evident that the term “temporary injunction” was used by the lawmakers to mean that interlocutory injunction provided for by the other articles of this chapter. This construction of the term is in accordance with the popular and, to say the least of it, a very general judicial acceptance of the meaning thereof, and is in harmony with the purpose of the act, while a restriction of the meaning of the term to a restraining order, issued preliminary to a hearing as to whether an injunction shall be granted, pending a final trial on the merits of the case, would lead to an incongruous and ridiculous result. We conclude that we have jurisdiction bf the appeal.

The first assignment is to the effect that it was error for the court to grant a temporary injunction in the absence of any prayer by plaintiff therefor. There is no reference in the petition to an injunction except as we have stated; as we construe the prayer it specifically prays for, an injunction only after final hearing. It seems to be the general rule that an injunction will not be granted unless specifically prayed for, a prayer for general relief not being sufficient, and extending this rule a number of authorities, including a decision by the Court of Civil Appeals for the Eourth district of this state, hold that a temporary injunction will not be granted on a prayer for a perpetual injunction on final hearing. Boyd v. Dudgeon, 192 S. W. 262, and authorities cited ; Enc. Pleading and Prac. vol. 10, p. 962; Cyc. vol. 22, p. 930 ,- Standard Ene. Prop, vol. 13, p. 86, par. 7. As to the latter holding, a more liberal view is announced by the courts in Wrigley v. Larson (C. C.) 195 Fed. 569; Shipley v. Western Maryland Tidewater Railway Co., 99 Md. 115,, 56 Atl. 968. For the sake of uniformity in decision, we will follow the rule which seems to be established by the weight of authority and followed by the Court of Civil Appeals for the Fourth district, and sustain appellant’s first assignment.

We think the petition is otherwise sufficient on general demurrer. It appears from the allegations thereof that plaintiff was in peaceable possession of the premises and that defendants were trespassers. Plaintiff thus had a right to protect the premises, irrespective of whether his lease ran from the rightful owner of the land, against defendants’ acts of trespass. Creswell v. Beakley, 28 Tex. Civ. App. 245, 67 S. W. 907; Linard v. Crosland, 10 Tex. 462, 60 Am. Dec. 213; Watkins v. Smith, 91 Tex. 589, 45 S. W. 560. The allegations of the petition showed that the acts of trespass were resulting in irreparable injury to plaintiff’s cattle, and it was not necessary to show that plaintiff had no adequate remedy at law. R. S. art. 4643; Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Southwestern Tel. & Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049; Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 42.

The writ of injunction issued by the clerk commanded the defendants to “desist and refrain from permitting your cattle to remain in the inclosed premises described above; that you, your servants and em-ployés remove same immediately; that you, your servants and employés do not further molest the possession of plaintiff; that you, your servants and employés do not destroy the fence or any part thereof, and that you, your servants and employés do not turn any cattle upon the leased land of plaintiff described above, until further orders of said .court,” etc. The appellant assigns error on the ground that the awarding of the mandatory injunction without notice or hearing was an abuse of discretion on the part of the judge granting the injunction. An examination of the order for the injunction shows that no mandatory relief was given thereby, and this feature of the injunction writ was broader than the terms of the order and not authorized by it. It will not be necessary for us to pass on other assignments.

The judgment will be reversed, and judgment here entered dissolving the injunction.
      (§=>For other cases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    SAN ANTONIO WATER SUPPLY CO. v. GREEN et al.
    (No. 5984.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 14, 1917.)
    1. Injunction &wkey;>169— Temporary Injunction — Motion to Dissolve — Verification.
    Under Rev. St. 1911, art. 4668, providing that the defendant to an injunction proceeding may answer as in other civil actions, but that no injunction shall be dissolved before final hearing, because of a denial of the allegations of the petition, unless the answer denying the same is verified by oath or affirmation, the facts alleged in an unverified motion to dissolve a temporary injunction could not be considered in determining whether the injunction should be dissolved.
    2. Injunction <&wkey;163(l) — Temporary Injunction — Grounds for Dissolution.
    The judge had a right to dissolve a temporary injunction, if plaintiff’s petition, standing alone, did not entitle it to such injunction.
    3. Waters and Water Courses <&wkey;203(15)— Meter Rents — Recovery of Payments — Voluntary Payments.
    Where payments for the rent of water meters were made voluntarily with full knowledge of the fácts, the money could not be recovered, whether or not the contract between the water company and the city authorized it to charge rent for meters.
    4. Injunction <&wkey;14iL-TEMP0RABY Injunction — Sufficiency of Petition.
    A petition by a water company alleged that a great number of suits had been filed in justice court against it for the recovery of meter rent; that in one of such suits the justice rendered judgment against it for $12; that the plaintiff in such suit made application to have a meter installed and promised and agreed to pay rent; that in all of the other suits and. cases where claims were asserted in which suit had not been filed the facts were the same; that in each case the customer voluntarily applied for a meter, and made a written application, agreeing to pay rent, or where they did not sign applications with an agreement to pay rent, they moved into premises where meters had been installed under an application and contract, knowing that such was the case, and that meter rent was being charged and would be charged, and, with full knowledge of the facts, had the water turned on and paid the meter rent without objection or protest; and that the amount of the claims sued on was such, in most instances, that the justice court had final jurisdiction, and in a few exceptional cases such that an appeal could not be taken from the county court, field, that the petition stated a cause of action, entitling the company to a temporary injunction, restraining the further prosecution of suits already filed, and the filing of any further suits.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge. ’ .
    Suit by the San Antonio Water Supply Company against C. S. Green and others. From an interlocutory order dissolving a temporary injunction, plaintiff appeals.
    Reversed and remanded.
    Taliaferro. Cunningham & Birkhead, of San Antonio, for appellant. E. H. Powell, of San Antonio, for appellees.
   MOURSUND, J.

On July 9, 1913, the San Antonio Water Supply Company presented its petition to Hon.' R. H. Ward, judge of the Seventy-Third judicial district, alleging in substance that the company was engaged in furnishing water to the city of San Antonio and the inhabitants thereof under certain franchises granted it by said city; that in all cases where water is furnished to a consumer through a meter furnished by the company it makes a monthly charge for the use of the meter, and that the rates charged for water were fixed in a certain contract with the city, covering a period of ten years, dated July 1, 1902, which provided that any consumer dissatisfied with the flat rate made him for water was entitled to have a meter, to be inserted in his service pipe under certain conditions and regulations, which are stated in the petition; that said contract further -provided that the rate fixed for private consumers shall not be applicable to any special contract now in existence, nor shall anything in the contract affect or interfere with the right or power of the company to make any special rate or contract with any corporation, firm, or person; that a great number of suits had been filed in justice’s court of precinct No. 1 of Bexar county for the recovery of meter rent, a list thereof being contained in the petition; that, although said suits were brought in the names of the customers, the claims had been assigned to defendant Mosby; that defendants filed suit in behalf of one O. S. Green, which was tried, and the justice rendered judgment against the company for $12; that the evidence showed that Green, exercising his option so to do, had made application to the company to have a meter installed in his /service pipe, and had promised and agreed to pay the company 50 cents per month for the use thereof; that said agreement was valid, and the judgment was without any evidence to sustain it; that in all of said suits and in all cases not filed where claims are asserted the facts relied on to sustain the alleged cause of action are the same as in the Green case; that in each of said cases the consumers, voluntarily exercising their option so to do, made demand to have a meter installed, and made written application therefor in each ease, agreeing to pay a specified sum per month as meter rent, which sums they are now attempting to recover in the suits filed, or threatening to attempt to recover by filing' further suits, and in cases, if any there be, where persons asserting claims have not signed applications for the installation of meters, together with an agreement to pay the rent therefor, such.persons moved into premises where meters had been installed under an application and contract, well knowing that such was the case, and that the meter rent was being charged and would be charged at a certain specified sum per month, and such persons, having full knowledge of the fact, having had water turned into their premises through, such meters, and having continued to pay the meter rent without objection or protest, have thereby .contracted with the plaintiff to pay the same; that the amount of the claims sued upon, and those not sued upon, in nearly all instances, is less than $20, so that the justice court would have final jurisdiction, and the few exceeding such sum could not be appealed from the county court to the Court of Civil Appeals; that the company had made efforts, without avail, to have six of said cases consolidated when they were set for trial on the same day.

A temporary restraining order was issued, and a date set for hearing, and upon July 15, 1913, an order was entered reciting that the parties appeared and announced ready; that the demurrer of defendants was overruled; that evidence was introduced and upon agreement of counsel the following decree was entered, viz.: That until further ordered by the court defendants, their agents and attorneys, are restrained from further prosecuting any of the suits heretofore filed by them or any of them in the justice courts of Bexar county, and from filing any further suits for the recovery of meter rent or for damages based upon the collection of meter rents, and that defendant Mosby be granted leave to intervene in this suit on “said 300 and odd meter rent cases.”

Nearly four years later, on June 13, 1917, defendants filed an unsworn motion to dissolve the temporary injunction, and on August 23, 1917, Hon. J. T. Sluder, the present judge of the Seventy-Third judicial district, entered an order reciting that all parties appeared, and that, after hearing and considering the motion and the arguments of counsel, it was decreed that the injunction be dis; solved in so far as it restrained the defendants from filing and prosecuting suits for the recovery of meter rent paid to plaintiff, but that it remain in full force and effect as to all matters except as above set out. We fail to see any matters as to which it remains in force, but this is immaterial.

The company appealed from such interlocutory order dissolving the temporary injunction. The only pleadings in the record are the petition and the motion to dissolve.

As the motion to dissolve was not verified by affidavit, the facts therein alleged cannot be considered in determining whether the injunction should have been dissolved. Article 4663, R. S. 1911; Southern Oil & Gas Co. v. Mexia Oil & Gas Co., 186 S. W. 449; Dawson v. Baldridge, 55 Tex. Civ. App. 124, 118 S. W. 593.

' [21 The only question to be determined is whether plaintiff’s petition, standing alone, entitled it to the injunction it obtained; for, if it does not, the judge undoubtedly had the right to dissolve the same.

Appellees contend that the petition is defective in that it fails to show a good defense to the claims asserted against appellant, and that therefore the court did not err in dissolving the injunction. According to the averments of the petition, the sums sought to be recovered were paid voluntarily, with full knowledge of the facts. Money so paid cannot be recovered. Ladd v. Southern Cotton Press Co., 53 Tex. 172; Galveston City Co. v. Galveston, 56 Tex. 486; Jones v. Gardner, 112 S. W. 826; Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535, 85 N. E. 200, 18 L. R. A. (N. S.) 124. We call attention especially to the opinion in the Illinois case above cited.

As the petition charges'that the payments were made voluntarily, which in itself would constitute a defense, it is immaterial for the purposes of this appeal whether the contract pleaded authorized the company to charge rent for meters installed by it, and, in view of the fact that the contract is not set out in full or attached as an exhibit, we will not undertake to construe it and determine its effect. If the case should come to us again and it be necessary to construe the contract, we may have a copy of it in the record or at least a more complete statement of its provisions.

The petition states a cause of action entitling appellant to the temporary injunction originally granted it, and the court erred in dissolving the.same.

The judgment is reversed, and the cause remanded.
      <g3»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes