author: LEVY, J.

text:
    WILLIAMS et al. v. BALDWIN et al.
    (No. 1887.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1918.
    Rehearing Denied March 14, 1918.)
    1. Principal and Surety <&wkey;117 — Discharge of Surety — Building Contract — Payment Without Certificate.
    Provision of building contract that installment payments shall be made by owner to contractor only on certificates of the architect is for owner’s benefit; and making of payments without such certificates to materialmen and laborers, after abandonment of,work by contractor, will not prevent recovery on his bond.
    2. Principal and Surety &wkey;>117 — Discharge of Surety — Building Contract — Final Certificate.
    Provision of building contract that final certificate be made on completion of the building applies only when the contractor completes the building.

      3. Appeal and Error <&wkey;257 — Review—Exceptions— Consolidating Causes.
    The ruling or order for consolidation of causes cannot be reviewed; exception not having been taken thereto.

      4. Appeal and Error <&wkey;1011(l) — Review— Findings.
    Finding that lumber was furnished to building contractor without any promise of building owner to pay therefor, being on conflicting evidence, is not reviewable.
    Appeal from District Court, Smith. County ; J. R. Warren, Judge.
    Suit by A. P. Baldwin against R. F. Williams and others; certain persons intervening. With this the suit of R. W. Patterson against A. P. Baldwin was consolidated. From the judgment, Williams and others and Patterson appeal.
    Affirmed.
    On September 29, 1915, the Davis Construction Company, a copartnership, entered into a written contract with A. P. Baldwin to provide all material and perform all the work for the erection of a two-story brick apartment house according to certain plans and specifications, for which A. P. Baldwin was to pay them $10,250. It ivas provided in the contract: (1) That no alterations should be made in the work except on the written order of the architect; (2) that the sum contracted to be paid by A. P. Baldwin to the construction company was only to be paid on the certificates of the architect, and no certificate was to exceed 75 per cent, of the cost of labor and -material satisfactorily in place in the building at the time of the issuance of such certificate; and (3) that, should the construction company at any time fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements in said contract, such failure being certified by the architect, the said A. P. Baldwin should be at liberty, after ten days’ written notice to the contractors, to provide any such labor and material necessary to complete the building according to the plans and specifications. The construction company executed a bond on September 29, 1915, with three sureties, who are the appellants herein. The bond was in the sum of $5,000, payable to A. P. Baldwin “and to such persons, firms and corporations who may furnish material for or perform labor on the work, building or improvement contemplated in the contract.” The condition of the bond reads:
    “That said Davis Construction Company shall well and truly keep, perform and fulfill all and every the covenants, conditions, stipulations, and agreements to be kept, performed, and fulfilled by them as set forth and contained in the contract entered into by and between the Davis Construction Company, as contractors, and A. P. Baldwin, as owner, dated September 29, 1915, for the construction of the work, building, or improvement mentioned in the said contract, and shall repay to A. P. Baldwin, owner, all sums of money which he may pay to other persons on account of work and labor done or material furnished which the Davis Construction Company may fail to do or furnish in accordance with said contract, and shall pay to A. P. Baldwin, owner, any and all damages he may sustain, as provided in said contract, or which he may be entitled to under the terms of said contract by reason of the malperformance or nonperformance on the part of the Davis Construction Company, contractors, of any of the covenants, agreements, and stipulations in said contract on their part to be kept and performed.”
    The bond further provides:
    “This bond is made for the use and benefit of all persons, firms, and corporations who may furnish any material or perform labor for or on account of said work, building, or improvement, and they and each of them are hereby obligees hereunder the same as though their own proper names were written herein as such, and they and each of them may sue hereon.”
    This bond was not filed in the county clerk’s office.
    In October, 1915, the Davis Construction Company began the erection of the building, and on January 22, 1916, refused to further proceed with the erection and completion of the building, which fact was certified on January 31, 1916, by the architect superintending the erection of the building. On January 31, 1916, the construction company and the-sureties on their bond were each notified of such failure on the part of the construction company, and that A. P. Baldwin would provide all labor and material necessary to complete the building as the construction company had contracted to do. After the notice' A. P. Baldwin proceeded to and did furnish the labor and material necessary to complete the building according to the contract. Up to and including January 8th A. P. Baldwin had paid to the Davis Construction Company $4,853.80 on certificate of the architect, and such payments did not exceed 75 per cent, of the amount of labor ancf material satisfactorily in place in the building according to the certificate of the architect at the time of the issuance of the certificate. However, on January 8, 1916, there had been labor and material to an amount exceeding $1,000 satisfactorily placed in the building by subcontractors which was unfinished on said date- and not covered by the certificate of the architect; and on January 19th there was labor and material satisfactorily in place in the building and not covered by the certificate of the architect to an amount of $2,940.-45, including the amount of over $1,000 in the building on January 8, and up to January 19, 1916, A. P. Baldwin paid to the following persons who had furnished labor and material to the construction company sums-indicated below:
    On Jan. 11, 1916, R. W. Patterson
    for lumber. $ ¡500 00
    On Jan. 15, 1916, pay roll. 120 00
    On Jan. 19, 1916, Victoria Lumber Co. for millwork. 1,482 85-
    Total .$2,102'85
    No certificate of the architect was issued' for the payments covered by the $2,102.85. After January 19th and prior to January 22d there had been labor and material satisfactorily in place in the building amounting to more than $200, and on January 22d A. P. Baldwin paid for the Davis Construction Company the weekly pay roll of $142. Thereafter, on January 29th, there was labor and material satisfactorily in place in the building to, an amount equal to $300, and on that date A. P. Baldwin paid for the Davis Construction Company the pay roll of $146.-85. At no time did A. P. Baldwin pay to or for the Davis Construction Company more than 75 per cent, of the amount of labor and material satisfactorily in place in the building. After the default of the construction company A. P. Baldwin was compelled to pay for labor and material necessary to complete the building according to the plans and specifications $4,279.56, making the total amount paid by A. P. Baldwin to and for the Davis Construction Company to complete the building $11,526.46, which amount was $1,166.46 above the contract price.
    A. P. Baldwin brought this suit upon the contract and bond against the Davis Construction Company and the sureties on the bond. There were other firms and corporations who had furnished material and labor to go into the building, and who intervened to enforce their demands. The sureties on the bond of the Davis Construction Company answered by denial, and specially, in avoidance, that the contract had been breached in altering the plans and specifications and in making payments without the certificate of the architect therefor and in failing to reserve 25 per cent, of the contract price until the completion of the building. The defendants further plead that the act of the Thirty-Fourth Legislature (Acts 34th Leg. c. 143 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5623a-5623d]) relating to bonds for building contractors was unconstitutional.
    There was a trial to the court without a jury, and findings of fact made by the court. A judgment was entered in favor of plaintiff and certain interveners against the construction company and the sureties on the bond. The sureties on the bond appeal.
    It. W. Patterson in a separate suit sought to recover of A. P. Baldwin for lumber alleged to have been furnished upon the promise of A. P. Baldwin to pay for the same. This suit was by order of the court consolidated with the suit of A. P. Baldwin against the construction company and the sureties on the bond. The court made the finding of fact that the lumber was furnished the Davis Construction Company, and that A. P. Baldwin did not agree to pay therefor either before or after the lumber was furnished to the construction company, and entered judgment denying a recovery to R. W. Patterson against A. P. Baldwin. R. W. Patterson appeals.
    A. B. Watkins, Miller & Miller, and J. N. Starr, all of Athens, and J. A. Bulloch, of Tyler, for appellants. Simpson, Lasseter &i Gentry, Marsh & Mcllwaine, Price & Beaird, and Calhoun & Gentry, all of Tyler, Bryan, Stone & Wade, of Ft. Worth, and Norman, Shook & Gibson, of Rusk, for appellees.
   LEVY, J.

(after stating the facts as above). It is insisted by the sureties on the bond of the Davis Construction Company that the court erred in not giving judgment in their favor, in that they are legally released from liability under their contract, for: (1) The installment payment by A. P. Baldwin of $2,-102.85 was made, as found by the court, without the issuance of a certificate of the archi tect for the payments; and (2) the payments by A. P. Baldwin before the time of the certified default by the Davis Construction Company were more than 75 per cent, of the value of the labor done and material furnished. As found by the court:

“After January 8, 1916, and up to January 19, 1916, A. P. Baldwin paid to persons and firms who had furnished labor and material to the Davis Construction Company the following amounts (itemized), totaling $2,102.85. No certificate of the architect was issued for these payments.”

And, as further found by the court, at the time the above installment payments were made there was labor and material satisfactorily in place in the building exceeding the value of $2,940.45, “and at no time did A. P. Baldwin pay to or for the Davis Construction Company more than 75 per cent, of the amount of the labor and material satisfactorily in place in the building.” The contract has the stipulation:

That the contract price shall, as the work progresses, “be paid by the owner to the contractors in current funds, and only on the certificates of the architect, no certificate to exceed 75 per cent, of the cost of the labor and material satisfactorily in place in the building at the time of the issuance of such certificates, and the final certificates of payment to be made on completion of the building, and all payments shall be due when certificates for the same are issued and upon satisfactory evidence, such as receipted accounts or releases for all materials and labor that have been furnished and used in construction of said building.”

In the case of Childress v. Smith et al., 90 Tex. 610, 38 S. W. 518, 40 S. W. 389, it was held that the owner of the building cannot, in a suit on the contract, be compelled by the contractors or sureties to make par^ tial payments agreed to be made in the absence of the architect’s certificate or proof made that the architect fraudulently or willfully refuses same. And in the case of Ryan v. Morton, 65 Tex. 258, and other cases following the ruling therein, it is firmly held that the sureties on the contractor’s bond are released of their obligation when without their assent the contractual partial payments are made by the owner to the contractor faster than the terms of the contract provide. Contractual terms regulating payments to be made depending upon the progress made in the work are a part of the contract, not peculiarly for the benefit of the owner of the building, but are also for the interest of the sureties on the contractor’s bond, for such regulations give “a guaranty to the sureties that the work will not be paid for by the owner until it was done” by the contractor. And the stipulation in the contract that the owner of the building shall not be required to make installment payments on the progress in the work without the certificate of the architect for the payments is intended for the benefit and protection of the owner of the building. Eor the term of contract entitles the owner to the proof and assurance that the work and material is in accordance with the plans and specifications under the superintendence of the architect, and that the proper amount of money is due. As in the findings of the court in the instant case there is not involved any question of acceleration of payments or overpayments, the principle involved in the case of Ryan v. Morton, supra, is not applicable here. And as the instant suit is by the owner of the building, it is believed that the case of Childress v. Smith et al., supra, is not applicable here. For the certificate of the architect is but evidence to the owner that the work and material in the building at the time are according to the plans and specifications, and that the correct amount therefor is properly due the contractor. The production of the certificate can accomplish nothing more. The interest of the sureties on the bond in this stipulation is only in the fact that the money be actually paid for the work and material in the building. And, the issuance of the certificate in the progress of the work being for the benefit of the owner of the building, the owner may waive it at his option and accept other proofs of the fact. Blethen & Terry v. Blake et al., 44 Oal. 117. And it may be presumed that the payment by the owner in this instant case was, as provided, “upon satisfactory evidence, such as receipted accounts or releases for all materials and labor that have been furnished and used in construction of said building,” and that there was by the owner a waiver, as he had the option to do, only of the certificate of the architect. For it is evident in the findings of the court that the labor and material was satisfactorily in place in the building according to the plans and specifications, and that 75 per cent, of the amount of such labor and material was then due to be paid by the owner under the contract. And it is concluded that neither the principal nor the sureties on the bond may legally claim a violation of the terms of the contract operating as a release of their obligation because of the mere fact that the owner of the building made the particular payments without the issuance of the architect’s certificate for such payments. The first and fourth assignments of error are overruled.

The points presented in the second and third assignments of error are not, as we conclude, involved in the case, since legal effect is herein given to the terms of the contract.

The fifth assignment of error, we think, should be overruled; for the court finds as a fact:

“That in the erection of said building there was no material change from the plans and specifications according to which the structure was to be erected, as per the contract between the Davis Construction Company and A. P. Baldwin of date September 29, 1915; that such changes as were made were trivial and not material changes in said plans and specifications.”

The provision that final certificate be made on completion of the building has application only when the contractor completes the building.

As no exception was taken to the ruling of the court or the order made consolidating cause No. 7945 with cause No. 7920, the assignment of error No. 1 by the appellant R. W. Patterson may not be reviewed by this court.

The second assignment of error by appellant Patterson challenges the findings of the trial court. The finding is:

“(13) Upon the issues made by the pleadings in the claim of R. W. Patterson against A. P. Baldwin for $524.71 for lumber claimed to have been furnished to the Davis Construction Company under the promise by A. P. Baldwin to pay therefor, I find that said lumber was furnished by R. W. Patterson to the Davis Construction Company, and that Baldwin did not agree to pay therefor either before or after the said lumber was furnished by Patterson to the Davis Construction Company.”

As the evidence is conflicting, the finding so made by the trial court will not be disturbed.

The judgment is affirmed.
      <ga»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: BROOKE, J. HIGHTOWER, C. J.

license: Public Domain

text:
    JOHN DOLLINGER, JR., Inc. v. HORKAN et al.
    (No. 328.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 5, 1918.
    Rehearing Denied April 17, 1918.)
    Injunction <@=»137(2) — Tempobaby Whit — Pkopeibtí.
    In a suit for an injunction against the use of air hammers in a boiler factory adjacent to a residence district on the ground that the use of the hammers created a noise injurious to the rest, comfort, and health of the inhabitants of the vicinity, it was error to issue a temporary injunction and prohibit the use of such hammers determinative of the whole controversy, since the status quo was thereby destrpyed, the plant put out of business pending hearing, and the use of lawful contrivances that had been in constant use for about six years prohibited.
    Hightower, C. J., dissenting.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by J. F. Horkan and others against John Dollinger, Jr., Incorporated, for an injunction. From a decree granting a temporary injunction, defendant appeals. Reversed.
    Oliver J. Todd and W. G. Reeves, both of Beaumont, for appellant. E. E. Easterling and R. H. Burgess, both of Beaumont, for appellees.
   BROOKE, J.

Appellees brought suit against appellant to enjoin the use of air hammers in a certain boiler factory owned by appellant, and situated on the east side of Railroad avenue in Beaumont, in a certain triangle between tracks of the Kansas City Southern and Beaumont Wharf & Terminal Company. It is alleged that the use of the hammers created a large volume of noise, which was injurious to the rest, comfort, and health of plaintiffs, who lived in that vicinity. Appellant was duly cited, and a hearing was had upon the question of granting a temporary injunction, and the district court granted an order as follows:

“Plaintiffs presented their petition and application for an injunction against the defendant, seeking to enjoin and restrain the defendant from operating air hammers in bradding the bolts connecting the iron sheets in repairing and constructing iron and steel boilers at defendant’s place of business, on Railroad avenue, between Washington and Milam streets, in the city of Beaumont, Tex., and the judge of the court, E. A. McDowell, considering the said petition and application, ordered that the defendant appear before him in chambers on the 17th day of September, A. D. 1917, then and there to show cause why the said injunction should not issue as prayed for by plaintiffs, and on the said 14th day of November, A. D. 1917, in chambers, came on to be heard the application of plaintiffs for said injunction, and the judge of the said court, Hon. E. A. McDowell, after hearing plaintiff’s application and petition for said injunction, and the defendant’s answer thereto, and the evidence, and the argument of counsel, is of the opinion that plaintiffs ought to have the said writ of injunction against the defendant as prayed for in their petition.
“It is accordingly ordered and adjudged that the plaintiffs J. F. Horkan, J. G. Ryan, A. J. Buteaud, T. H. De Cordova, G. Gautreaux, R. E. Lloyd, Mrs. I. F. Lincoln, Eugene Hartnett, Geo. McAfee, Hugh Sheffel, Jas. H. Raehford, J. I. Garter, and C. Palumo be awarded said writ of injunction as prayed for by them against the defendant, enjoining and restraining the defendant and its agents and emuloyés and officers from using and operating air hammers at its place of business, on Railroad avenue, between Washington and Milam streets, in the city of Beaumont, Tex., and the clerk of the district court of Jefferson county, Tex., is hereby directed to issue the writ of temporary injunction in favor of plaintiff herein against the defendant, directing and commanding that the defendant, its officers, agents, and employés cease and discontinue the operation of air hammers at its place of business on Railroad avenue, between Washington and Milam streets, in the city of Beaumont, Tex., until further orders of this court. To which action of the court in granting said temporary injunction the defendant then and there excepted and then and there gave notice of appeal to the Court of Civil Appeals in and for the Ninth Supreme Judicial District of Texas, holding session at Beaumont, Tex. And it is further ordered herein that by giving a supersedeas bond in terms required by law, payable in the sum of fj!l,000, with sureties to be approved by the clerk of this court, that the order herein granted shall be suspended until said appeal is disposed of in the said Court of Civil Appeals, and the Supreme Court.”

Many questions going to the merits of the case, and which -will be material upon a final hearing, have been discussed in the briefs, but we are of opinion that the state of the record and our determination of this appeal renders their consideration and discussion unnecessary at this time.

Appellant has presented its seventh assignment of error, which we have found to be well taken, and which will dispose of this appeal. This assignment is as follows:

“The trial court erred in granting the injunction in this case pending a final hearing, because the sole legitimate purpose of a temporary injunction is to preserve the status quo pending a hearing on the merits, while in this case the-trial court has not by its order preserved the status quo, but has destroyed the same, and has in effect granted all of the affirmative relief which plaintiffs could have obtained on a final hearing, and having entered an order the effect of which would be to destroy defendant’s business prior to the hearing of the case on its merits.”

The question of conflicts between manufacturing industries and residences adjacent thereto has been fruitful of much difficulty, and the adjustment thereof must necessarily result in more or less hardship to some one, and their determination ought to he carefully worked out by the court, and, except for the preservation of the status quo, ought to be determined only on a final hearing upon the merits.

The gravity of the situation is fully expressed by Mr. Wood in his work on Nuisances (section 6), where he says:

“A party who devotes his premises to a use-that is strictly lawful in itself, that is fruitful of great benefits to the community, that adds materially to its wealth, and enhances its commercial importance and prosperity, and whose-motives are good, and intentions iaudable, may find that, by reason of the violation of the rights that are incident to his business and that cannot be so far correct as to prevent the injury complained of, his works are declared a nuisance, his business stopped, and himself involved in financial ruin. Therefore it is proper and highly important that courts should proceed with extreme caution, and weigh the relative rights of parties with exceeding care, and' never declare a business a nuisance except there be such essential injury and damage that the act or thing cannot be justly tolerated without doing great violence to the rights of individuals and the public. People living in cities and large towns must submit to some discomforts, to some injury and damage; must even yield a portion of their rights to the necessity of business, which, from the very nature of things must often be carried on in populous localities and in compact communities, where facilities alone exist upon which it can be kept up and prosecuted.”

In this case it is undisputed that defendant’s business is located on the border line-between business and manufacturing and other industrial property, that same is not unlawful in itself, but, on the contrary, is-useful, necessary, and beneficial to the community, and same has been conducted in its present location for eleven years, and the hammers complained of or some of them have been in operation for at least six years before tbe filing of the suit. The business began eleven years ago with a capital invested of about $4,500, and has grown until now it is a ¥50,000 concern, employing about 40 men, and since the entry of the United States into the present world war the business of the concern has doubled in its volume, and it is undisputed that to eliminate the air hammers would require the use of about eight men to do the work which three now perform, and the effect of such an injunction is to destroy, at least for the time being, the operation of the plant as a boiler factory until a new factory can be built elsewhere.

By the above order, the court has practically decided, upon temporary hearing, every issue which would be determined on a final judgment, and in so doing has transcended what we understand to be the purpose of such an order, which is the preservation of the status quo.

In 22 Cyc. 740, the author uses the following language:

“The object is to maintain the status quo, to maintain property in its existing condition, to prevent further impending injury, but not to determine the right itself. Therefore, where the issuance of a preliminary injunction would have the effect of granting all the relief which could be obtained by a final decree, and would practically dispose of the whole case, it will not be granted.”

Iu the case of Simms v. Southern Pipe line Co., 195 S. W. 288, Judge Pleasants used the following language:

“In the case of Simms v. Reisner, 134 S. W. 278, this court held: That it was ‘not the function of a preliminary injunction to transfer the possession of land from one person to another pending an adjudication of title, unless the possession has been forcibly or fraudulently obtained by defendant, and the equities require that the possession thus wrongfully invaded be restored, and the original status preserved pending the decision of the issue of title.’ ”

In the case of Alexander v. Wilkes-Barre Anthracite Coal Co., 245 Pa. 28, 91 Atl. 213, the opinion of the court is indicated by the syllabus, and is as follows:

“Where an owner of a dwelling house sued for an injunction to restrain defendant coal company for working its colliery near his residence, a preliminary injunction was properly denied, where the injuries to plaintiff were not of a pressing character, and an injunction would stop the mining operations of defendant, throw a large number of employés out of work, and cause a large loss to defendant, and the injuries complained of had been endured for some time.”

The function of a preliminary injunction is stated in Powhatan Coal & Coke Co. v. Ritz, 60 W. Va. 395, 56 S. E. 257, 9 L. R. A. (N. S.) 1225, as shown by the syllabus in the following language:

“The function of a preliminary injunction, whether it be prohibitory or mandatory, is to preserve the status quo until, upon final hearing, the court may grant full relief.”

In Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271, 36 L. R. A. 566, the effect of the decision is also stated by the syllabus in the following language:

“A preliminary injunction must not do what can only be done after full hearing by final decree, as by changing the possession of realty, or depriving one in possession of its benefits, in any other respect than as to the wrongful act proper to be enjoined; the proper purpose of such injunction being to preserve the present status until a full hearing on the merits shall be had. An injunction as to so much of it as is excessive is void, and ought to be modified on motion.”

In 14 R. C. L. 315, the text discussing the scope of a preliminary injunction said:

“But in determining the right to this relief, decision should not be made in reference to matters which will come up for consideration at the hearing of the bill, and in granting the remedy the court must not attempt to do what can be done only after full hearing by final decree, as by changing the possession of realty or depriving one in possession of its benefits; and an injunction as to so much of it as is excessive is void, and should be modified on motion.”

The foregoing order, in effect, destroys the status quo by putting out of business, pending a hearing, the plant of appellant, and prohibits the use of lawful contrivances, which have been in constant use for about six years, and, in effect, throws out of employment a large number of men, when on a final hearing a court or jury might find that plaintiffs are not entitled to relief.

From the foregoing authorities, as well as from the decision of this court in the case of City Commissioners of Port Arthur v. Fant, 193 S. W. 346, we have concluded that the above order transcends the purpose of a temporary injunction, and that the assignment referred to above should be sustained. This requires a reversal of the case, and in our judgment renders unnecessary a discussion of its merits, which will come up on final hearing, and upon a more complete record than could have been developed on temporary hearing.

It is therefore ordered that this cause be reversed, and said temporary injunction be hereby vacated.

HIGHTOWER, C. J.

I cannot agree with the views expressed in the opinion of the majority of this court, reversing the judgment of the district judge in this case; but, on the contrary, I think the action of the district judge in granting a temporary injunction was warranted by the law, and fully justified by the facts introduced on the hearing.

I therefore respectfully dissent from the opinion of the majority.
      ffi^oFor other cases see same topic and KEY'NUMBER in all ICey-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    DEMPSTER MILL MFG. CO. v. HUMPHRIES.
    (No. 832.)
    (Court of Civil Appeals of Texas. El Paso.
    April 4, 1918.)
    1. Corporations <®=^657(3) — Foreign Corporations — Interstate Commerce.
    Where defendant gave order for machinery to a third person, who without authorization transmitted it to the plaintiff, a corporation of another state, and after the machine arrived he agreed to and did give a new order “on the terms stipulated in ' the original order,” there was a ratification of the interstate contract which permitted recovery by the foreign _ corporation, although it had received no permit to do business within the state.
    2. Commerce &wkey;>40(l) — “Interstate Commerce” — Sale op Goods.
    Assuming a single sale of a machine by a foreign corporation was made wholly within the state, it was, nevertheless, in interstate commerce.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
    3. Evidence <&wkey;80(l) — Foreign States — Presumption.
    In the absence of showing what was the law of the state wherein a note was given as to which the statute of limitations might have accrued, had there not been letters preventing the bar, the court must presume such law to be the same as the law of the state wherein the action is brought.
    Appeal from Reeves County Court; Jas. F. Ross, Judge.
    Action by the Dempster Mill Manufacturing Company against E. A. Humphries. Judgment for defendant, and plaintiff appeals.
    Reversed and judgment rendered.
    See, also, 189 S. W. 1110.
    Appellant, Dempster Mill Manufacturing Company, brought this suit to recover against appellee on two promissory notes in the sum of $464.76 each, payable at Toyah, Tex., with interest, less credits aggregating $805, and to foreclose an alleged chattel mortgage lien upon a Dempster irrigation pumping plant or machine, with its equipment, alleged to be of the value of $750. Appellee pleaded general demurrer, special exceptions, general denial, in abatement that appellant is a foreign corporation and had no permit to transact business in this state; pleaded that appellee was overreached, and deceived by certain representations of appellant in the execution of the order or contract for the plant, in that it was not agreed that he should give a mortgage on the plant. He further pleaded that a note given as additional security had becóme barred by limitation.
    Finding of Facts.
    Appellant is incorporated under the laws of Nebraska, having its place of business at Beatrice, in said state. Appellee lives at Toyah, Tex.
    On November 4, 1911, appellee, Humphries, was at Sentinel, OKI., and on said date, at the solicitation at that place of a salesman of appellant, signed an order to appellant for a pumping plant and its equipment, and directing that it be shipped to appellee at Toyah, Tex., from appellant’s place of business in Nebraska; the order stating the terms upon which the payments were to be made. It was agreed between appellant’s agent at Sentinel and appellee that the order for the pumping plant should not be delivered, but should be left with a third party at Sentinel, and should remain there in his possession until appellee would return to Toyah, Tex., and then if appellee should decide that he needed the pumping plant he would then notify said third party to send the order in to appellant at Beatrice, Neb. The said third party was not to send the order in until he was notified by appellee to do so. Appellee returned to Toyah, lex., but never at any time notified said third party, or any other person, to send said order to appellant. Some time after appellee had returned to Toyah, he received a notice from appellant that the pumping plant had been shipped to him at Toyah from Beatrice. Appellee at once notified appellant of the arrival of the pumping plant, that he would not accept it, stating to appellant the conditions and circumstances of signing the order.
    We have copied as a part of the statement of facts as much of appellant’s evidence as we think necessary to show the subsequent transactions, consummating a sale of the plant, and the execution of the notes and mortgage sued upon:
    “They [the company] ■ then tried to get me to accept it [the plant], which I refused to do, but after considerable controversy between us I finally told the company that if they would send a man to Toyah, fully authorized to act for them, I would try to make a deal with them. So in a short while the company notified me that they would send Mr. W. H. Eck, who was fully authorized to act for the company. When Mr. Eck arrived at Toyah, we talked the matter over for some time. Mr. Eck and myself finally agreed that the machinery might be carried out to the well on my farm several miles from Toyah, and he agreed that if I would pay all expenses for hauling the machinery out to the well, and return the same and pay $150 for making the test, and take back the pumping plant in case it did not give satisfaction, or that if my well would not afford as much as 400 gallons of water per minute, then I was not to take the pumping plant. The understanding was that if the well should furnish 400 gallons of water per minute, and if the pumping plant and machinery were otherwise satisfactory; then I was to take it upon the same terms stipulated in the original order signed at Sentinel, Old. So Ec.k took the pumping plant and machinery out of the freight depot at Toyah, and we hauled it out to my place, and he installed it; he made the test and the well would not furnish 400 gallons of water per minute, in fact, the pump would exhaust the well in a few minutes, and then it would not afford any water at all, so it was useless to me. Then Mr. Eck told me that perhaps the well needed cleaning out, and he said that if I would allow the pumping plant to remain there, and if I would have the well cleaned out, that he believed it would afford 400 gallons of water per minute. So he persuaded me to let the pumping plant and machinery remain there until I could have _ the well cleaned out, and he also said that if I would have the well dug a little deeper, it would be better, stating that he was an expert on wells. At the time I gave him the notes sued on, he stated that unless the machinery gave satisfaction he would cancel the notes and take back 'the plant, and that he would soon be back to work this territory. * * * . I never did write to W. H. Eck, stating to him that he had promised to take back the machinery. I never did write to the company telling them that Eck agreed to take it back. I do not know whether or not I read the contract and mortgage shown me. Yes, it looks like the one I signed in Sentinel, Okl. * * * Yes, I suppose the pumping plant is the same plant that was described in the order I signed at Sentinel, Okl., on November 4, 1911. Yes, I have used the pumping plant to test two or three wells.”
    W. X Eck testified:
    “At the request of Dempster Mill Manufacturing Company, I came to Pecos to adjust this claim with Mr. Humphries. The pumping plant had been shipped from Beatrice, Neb., to E. A. 'Humphries, at Toyah, Tex., and he refused to take it, and X was sent by the company to adjust the matter with him.”
    Appellee admits the execution and delivery of the two notes, and the order for the pumping plant. In the order, the notes are mentioned as part consideration in connection with a note for $285 on a third party, given by appellee as additional collateral security. The order given for the plant retains title in appellant until full payment of the two notes.
    The order for the pumping plant signed at Sentinel, Okl., and the order signed at Toyah, Tex. (the one sued upon), were both introduced in evidence, and are practically the same in terms. A number of letters from Humph-ries to the company, running through several years were introduced in evidence, in which he sent to the company payments on the two notes sued on, and repeatedly promised to pay the balance of the notes, but for reasons stated was not then prepared to do so, and requested extensions of time. It was admitted by appellant that it had not taken out a permit to transact business in this state.
    J. A. Buck, of Crosbyton, for appellant. Ben Palmer and Harry MaeTier, both of Pecos, for appellee.
   WALTHALL, J.

The several letters of Humphries to the company clearly show a ratification of the contract of purchase of the pumping plant described in the order. We think it is quite clear also that, while Humphries.refused to accept the plant under the first order, made at Sentinel, Okl., and the final consummation of the sale and delivery of the pumping plant, the execution of the notes and mortgage took place at Toyah, Tex., the transaction, as we construe it, was really an adjustment and conclusion of the sale commenced, but left undetermined by his refusal to accept the plant under his first order made at Sentinel, Okl. His agreement with Eck was that in the event he concluded to accept the plant he would “take it upon the same-terms stipulated in the original order,” and did so. While the plant was then on his ranch near Toyah, he made the second order similar to the first one, thus, in effect, substituting the second order for the first.

Had Humphries accepted the plant under the first order, there could be no question but that the transaction was interstate commerce. The trial court dismissed the case, evidently on the theory that the interstate character of the transaction terminated on Humphries’ refusal to accept the plant after it reached Toyah, as he had the right to; his order not having been delivered by him to the company. But should we be in error in the interpretation of the facts as stated above, and should it be held that the transaction was not wholly an adjustment, and a consummation of the purchase of the plant commenced by the first order, and if it should be that the sale of the plant had its initiative on the arrival of Eck at Toyah, and that the sale of the plant was wholly made at Toyah, could it in that event be said that the transaction was not interstate commerce? We think not under the facts.

It is not shown that the company desired to transact business in this state other than to adjust the one transaction, or solicit business in this state, or established a general or special office in this state. Appellee has referred us to a number of authorities as sustaining his contention that the transaction was intrastate. We have very carefully read and analyzed each of the eases, and many others not referred to, and conclude that they do not so hold.

The case of Norton v. W. H. Thomas & Sons Co., 93 S. W. 711, in which a writ of error was denied by the Supreme Court, is more, we think, in point with the facts of this ease than any we have examined. We think our conclusion is sustained also by the cases of Shaw Piano Co. v. Ford et al., 41 S. W. 198, and King v. Monitor Drill Co., 92 S. W. 1016. In the case of Miller et al. v. Goodman, 91 Tex. 41, 40 S. W. 718, the facts are somewhat similar to this case. In that case Judge Brown, speaking for the Supreme Court, said:

“It is a case of sale by a corporation, created by another state, of goods manufactured in that state, and shipped into the state of Texas. It matters not whether the goods were sold before they were shipped, or shipped to the state and then sold. It is equally interstate commerce”

—and refers to Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128.

The one fact submitted by the trial court to the jury, Did Humphries, at Sentinel, Okl., buy from and instruct appellant to ship the pumping plant to him at Toyah? was undisputed. The suit was not based on that contract, and it was only an evidentiary fact in the case.

Appellant alleges that it used due diligence to collect the note given as collateral security, was unable to do so, and in its pleading tendered the note to appellee. Ap-pellee alleges that the note is barred by limitation, but the several letters from the maker of the note to appellee, and read in evidence, would, in this state, prevent the bar of the statute. The maker of the note is a resident of Oklahoma, and the note is made payable in that state. We are not informed by the record of what the law of Oklahoma is, and must presume it to be the same as our own.

Appellee, in his brief, states that, if the transaction shown was interstate commerce, appellant had the right to maintain the suit, and we are of the opinion that it was. The ratification by appellee of the sale was alleged by appellant, and the undisputed evidence showing that it was, there is no undetermined fact remaining to be tried.

The ease is reversed, and judgment is here rendered for appellant for the amount sued for, and for a foreclosure of its lien on the plant and its equipment. It is further ordered that appellant surrender to appellee the collateral note that it holds, signed by E. L. Harris.
      &wkey;oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GORDON v. REEDER et al.
    (No. 848.)
    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.)
    1. Process <§=387 — Service by Publication —Transient Person.
    Service by publication as on a transient person gives the court no jurisdiction over her person, unless she is in fact a transient, for if she is not such the process and service are unauthorized.
    2. Process <§=>85 — Constructive Service-Statutes — Construction.
    Statutes authorizing constructive service of citation are strictly construed.
    3. Process <§=387 — Service by Publication —Statutes—“Transient Person.’’
    A woman who had no fixed place of residence, but lived around over the state with her three or four children, though she could not call any of her children’s homes her own, was not a “transient person” within Rev. St. 1911, art. 1874, authorizing service by publication on such a person.
    [Ed. Note. — For other definitions, see Words and phrases, First and Second Series, Transient.]
    4. Process <§=>84^-Personal Service — Difficulty — Necessity.
    That personal service of citation on a defendant is difficult to obtain does not dispense with its necessity.
    Error from District Court, Brown County; Jno. W. Goodwin, Judge.
    Suit by F. L. Reeder and others against Mrs. S. A. Gordon; To review judgment for plaintiffs, defendant brings error.
    Reversed and remanded.
    W. D. Gordon, of Beaumont, and Gold-stein & Miller, of El Paso, for plaintiff in error. Wilkinson & McGaugh, Mark McGee, and I. J. Rice, all of Brownwood, for defendants in error.
   HIGGINS, J.

F. L. Reeder brought' this-suit against Mrs. S. A. Gordon to recover upon, the latter’s promissory note. Mrs. Gordon was alleged to be a resident of Jefferson county, Tex. Citation was issued to Jefferson county, and returned unexecuted. Thereafter an alias citation was issued to Harris county and returned unexecuted. Thereafter a pluries citation was issued to Jefferson county, and returned unexecuted. Thereafter Reeder’s attorney filed an affidavit that Mrs. Gordon was a transient person. Citation, for service by publication, was then issued. Publication and return thereof was made. An attorney was appointed to represent Mrs. Gordon. This attorney filed an answer for her in which it was denied that Mrs. Gordon was a transient person. Judgment upon the note was rendered. A statement of the evidence was -filed as a part of the record, as required by article 1941, R. S. Some months after the rendition of the judgment Mrs. Gordon sued out this writ of error.

The only question of any importance presented relates to the sufficiency of the constructive service so as to authorize the rendition of the judgment. In order to give the court jurisdiction over the person of Mrs. Gordon by this service she must in fact have been a transient person. If she was not such, then the process and service was unauthorized. Kitchen v. Crawford, 13 Tex. 516. The testimony of the attorney who made the affidavit, as shown by the statement of the evidence, is to the effect that he made the same as a result of his investigation as to Mrs. Gordon’s place of residence. He stated that from the best information he could get she had no fixed place of residence, but was living around over Texas with her children; that two of these children lived in' Beaumont, Tex., both married and having homes there; another daughter was married and kept house in Houston, Tex.; the other child, a son, was married and kept house in Kingsville, Tex.

These were the facts as disclosed by the testimony of the affiant. The question arises whether they show that Mrs. Reeder was a transient person, within the- meaning of article 1874, R. S. Statutes authorizing constructive service of citation are not liberally interpreted, but, on the contrary, are strictly construed. Davenport v. Rutledge, 187 S. W. 988; Byrnes v. Sampson, 74 Tex. 79, 11 S. W. 1073; 32 Cyc. 467.

The facts detailed show that Mrs. Gordon might be found at one of three places in this state, and that this fact was known at the time tjie affidavit was made. She perhaps could- not call either one of those places her home, and it is true she went from one child’s home to another, but we do not think on that account she could properly be considered a transient' person. It may be that it' presented difficulty for defendant in error to locate her whereabouts at a given time and secure personal service upon her, but this does not mate her a transient, so as to authorize other than personal service. It very frequently happens that personal service is difficult to obtain, but that does not dispense with its necessity.

For the reason that the evidence adduced upon the trial affirmatively discloses that she was not a transient person, it follows that the judgment was rendered without proper service of citation, which requires reversal.

Reversed and remanded.
      <§=sFor other eases see same'topie and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KING, J.

text:
    DETROIT STEEL PRODUCTS CO. v. HOUSTON PRINTING CO. et al.
    (No. 357.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 18, 1918.)
    1. .Sales @=>354(6) — Actions foe Price — Pleading — Fraud and Mistake.
    In an action for goods sold and delivered under a written contract, an allegation, pleaded on information by defendant, that defendant’s intestate signed the contract under a mistake of fact as to contents thereof, due to misrepresentations by plaintiff that the contract provided for payment of freight by plaintiff, held insufficient to raise the issue of fraud or mutual mistake.
    2. Sales @=>36 — Mutual Mistake.
    Buyer, who signs sales contract, thinking it provided for payment of freight charges by seller, when it plainly stated freight was to be paid by buyer, cannot avoid contract, where the mistake is not mutual.
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Action by the Detroit Steel Products Company against the Houston Printing Company and another. Prom a judgment for less than asked for, plaintiff appeals.
    Reformed and affirmed.
    Cooper & Merrill, of Houston, for appellant. W. G. Love and T. H. Stone, both of Houston, for appellees.
   KING, J.

This suit was instituted by the appellant against the Houston Printing Company and Mrs. Bessie Wenzel, as the surviving wife of C. C. Wenzel, deceased, and independent executrix of the last will of said C. C. Wenzel. Before trial the cause was dismissed as to the Houston Printing Company. Appellant declared on a written contract, whereby it sold to C. C. Wenzel, during his lifetime, material of the value of $779.70, claiming a balance of $411.74 as due under said contract. Upon a trial before the court without a jury, judgment yas rendered against the estate of C. C. Wenzel in behalf of appellant in the sum of $196. Appellant appealed, assigning as error the action of the trial court in deducting the difference between $196 and $411.74, as freight charges from Detroit to Houston upon the goods so-ordered. Judgment was denied appellant as against Mrs. C. C. Wenzel in her individual capacity. Appellee Mrs. Bessie Wenzel pleaded a general answer and general denial of ever receiving any of the property of said C. C. Wenzel, and further that said estate was insolvent, and that no allowance for her maintenance had ever been made by the pro* bate court, or otherwise, and that said estate was therefore unable to pay the claim. She also pleaded that she had not received property of sufficient value to pay said claim, and had not received any allowance for one year’s support as wife of said C. C. Wenzel, deceased. As independent executrix of the estate of O. O. Wenzel, deceased, appellee Mrs. Bessie Wenzel pleaded that 0. 0. Wen-zel, during his lifetime, was engaged in the business of contracting, constructing buildings in the city of Houston, and denied that appellant ever sold O. C. Wenzel any of the items claimed in appellant’s petition, but pleaded on information that a pretended written order.for materials was obtained by plaintiff from the said 0. O. Wenzel upon fraudulent representations made to him as to the contents thereof, by reason of which false and fraudulent representations, he was led to believe that said written order provided for said goods described in said order to be shipped to said Wenzel f. o. b. Detroit, with freight allowed to Houston, and that appellant, in defraud of the rights of 0. O. Wen-zel, procured his signature to said contract upon a mistake of the fact upon his part as to the contents of said order with regard to the allowance of freight to Houston.

A careful consideration of the evidence shows that Wenzel was a contractor, putting up a building for the Houston Printing Company, and asked for prices on fenestra steel windows of the agents of appellant, and that said agents submitted a written proposition to furnish the windows for $868 f. o. b. Detroit, with freight allowed to Houston, and that this proposal was accepted by Wenzel; that afterwards the architect having charge of said Houston Post Building changed the plan of construction of said building, so as to reduce the number of fenestra windows and their dimensions, and that said C. C. Wenzel then stated to the agents of appellant that it would be necessary to change their contract, as submitted to him by them under the original plan; that in compliance with said request the agents of appellant submitted to-said Wenzel a written bid or proposal to furnish fenestra steel windows and attachments for the sum, of $640. This contract provided, “ All prices f. o. b. car Detroit, Mich.,” and the provision “freight allowed to Houston,” contained in the previous proposal, was omitted from the second proposal; that this written contract was submitted to Wenzel, and was kept in his office for several days, and was duly executed by Mm, and tbat be received the material, and paid the freight, and sent in the freight bills to appellant for credit ; that appellant refused to credit him with the amount of the .freight hills, asserting under the contract as executed by Wen-zel.

Prom, those facts, the trial court concluded, as a matter of law, that the written order or proposal was signed and accepted by Wenzel under the mistaken belief, induced by the previous negotiations between him and the agents of appellant, that the same contained the provision that the freight on the material covered by said order was allowed to Houston, as was the ease in the original proposal submitted to him by said agents, and it would be inequitable and unjust to require his estate to pay the freight on said material from Detroit to Houston, and that under the circumstances the estate of C. O. Wenzel was entitled to a credit covering the amount of freight so paid by him.

The conclusion of the trial court cannot be sustained. In the first place, the pleadings of appellee in this respect, and as set out in substance above, are not sufficient to raise the issue of fraud or mutual mistake, and clearly the evidence fails to bring this case within the rule that a contract, to be not binding on account of mistake, the mistake must be mutual. It is not enough to avoid it that one party signed it, believing, it did not contain what was plainly expressed therein. The evidence, as well as the findings of the trial court, show that there is due appellant $411.74 under the written contract, and the judgment is reformed to the extent of allowing judgment for $411.74, instead of $196, as against the estate of C. O. Wenzel, deceased. We find no error, however, in the action of the trial court in refusing judgment as against Mrs. C. O. Wenzel in her individual capacity.

The judgment is therefore reformed and affirmed.
      <£^>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    TEXAS & P. RY. CO. v. SPROLE.
    (No. 1878.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1918.
    Rehearing Denied Feb. 28, 1918.)
    1. Master an» Servant <©=>278 (6) — Federal Safety Appliance Act — Evidence oe Violation.
    Plaintiff’s testimony that he made repeated attempts and failed to open a coupler knuckle, by pulling and jerking the lever or by pulling it with his hands, shows violation of the federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1916, §§ 8605-8612]).
    2. Master and Servant <©=>293(12) — Federal Saeety Appliance Act — Instructions.
    In action for injuries to brakeman in coupling, instruction that the railroad’s duty was to have its cars coupled with couplers which would couple automatically without the necessity of going between them “to arrange the coupling appliances” was not improper, as confusing the two acts of preparation of the coupler for impact and the actual coupling, since both acts were part of a larger act regulated by the federal Safety Appliance Act of March 2, 1893.
    3. Commerce <©=>27(1) — Injuries to Servants — Federal Safety Appliance Act.
    In view of the federal Safety Appliance Act (Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. 1916, § 8613]), making the act applicable to all cars “used on any railroad engaged in interstate commerce,” mere fact that the car at the moment of the injury was not engaged in interstate commerce did not preclude recovery, where the railroad was engaged in interstate commerce.
    4. Commerce <S=>27(7) — Federal Safety Appliance Act — Location of Cars.
    The mere fact that a car was not on the main track of the railroad at the time of the injury, but on a special track used to carry freight to the_ plant of a refining company, did not relieve railroad of liability under the Safety Appliance Act of March 2, 1893, for a defective coupling causing the injury.
    5. Master and Servant <©=>86 — Federal Safety Appliance Act — Right to Sue.
    In servant’s action for injuries due to violation of federal Safety Appliance Act of March 2, 1893, the master’s liability was enforceable in the courts of Texas, without reference to the laws of Louisiana, in which state the tort occurred.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by O. J. Sprole against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Appellant, as a common carrier engaged in interstate commerce, operated a line of railway from New Orleans, in Louisiana, to El Paso, in Texas. Appellee was a brakeman on one of appellant’s freight trains. While attempting to open the knuckle of a coupler on a car forming a part of said train, as a result of a collision between that car and another one in the train, appellee’s hand was so crushed and injured as to necessitate the amputation thereof above the wrist. Charging that the injury he suffered was due to a violation by appellant of the federal Safety Appliance Act (U. S. Comp. Stat. § 8605 et seq.), in that the coupler he was endeavoring to adjust was not in accordance with its requirement, appellee sued appellant for damages, and. recovered the judgment of $12,500, from which the appeal is prosecuted.
    The circumstances of the accident, briefly stating them, were as follows: December 15, 1915, appellant hauled a train, consisting of 40 cars loaded with sugar cane, from Ad-dis, in Louisiana, to a sugar refinery near Plaquemine, in the same state. The train was carried over appellant’s main line track from Addis to Plaquemine, and over a spur track from Plaquemine to the refinery. The cars forming the train were weighed on scales near the refinery. In weighing them the cars were pushed one by one, beginning with the one farthest from the engine, onto the scales and there stopped. It was the duty of a brakeman named' Meyers to uncouple the car when it stopped from the one next to it toward the engine, and after doing so to close the knuckle of the coupler, so the car would not couple to the one pushed against it, to move it off the scales when weighed. It was appellee’s duty, when a car, having been weighed, was pushed off the scales, as it moved away from same, to open the knuckle closed by Meyers, by means of a lever provided for the purpose, so that the car would couple to the one next weighed and pushed against it. After five or six of the cars had been weighed and pushed off the scales, and on down the track, the car in question was weighed and pushed off the scales. As it passed down the track appel-lee attempted to open the knuckle, but could not. He called, he said, to the conductor, who was 75 to 100 feet away, directing the weighing of the cars, and told him he could not get the knuckle to open. Another car was then on the scales, and the conductor replied, “Go ahead; we will get it after a while.” After four or five more of the cars had been weighed appellee called to the conductor and asked him to hold the cars yet to be weighed until he could go to the one with the defective coupler and see what he could do with the knuckle which he failed to open as the car passed from the scales. The conductor replied, appellee said, “All right; go ahead and get it.” Appellee then went to the car, and while he was endeavoring, by using the lever and his hands, to open the knuckle, other cars were pushed against the one he was at work on, injuring him as stated.
    F. H. Prendergast, of Marshall, for appellant. S. P. Jones, of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). 1. Appellant insists that the testimony relied on to show that the coupler was defective was not sufficient to support a finding that it violated the federal Safety Appliance Act (U. S. Comp. Stat. § 8605 et seq.) in using the car. The testimony was that pulling on the. lever would have opened the knuckle of the coupler, if it had been in good condition. Appellee testified that he made repeated attempts, and failed to open the knuckle by pulling and jerking the lever, and also was unable to open it by pulling it with his hands. Such testimony has repeatedly been held to be sufficient to show a violation of the act. Railway Co. v. Brown, 229 U. S. 317, 33 Sup. Ct. 840, 57 L. Ed. 1204; Railway Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995; Railway Co. v. Parker, 242 U. S. 56, 37 Sup. Ct. 69, 61 L. Ed. 150; Railway Co. v. Wagner, 241 U. S. 476, 36 Sup. Ct. 626, 60 L. Ed. 1110.

2. Appellant also insists that, if the testimony was sufficient to support a finding that it had violated the Safety Appliance Act, the court erred to its prejudice in submitting the question to the jury when he told them it was its duty to have its cars equipped with couplers which would couple automatically without the necessity of going between them “to arrange the coupling appliances.” The criticism of the instruction is, we think, sufficiently answered by an excerpt from the opinion of the Circuit Court of Appeals in Railway Co. v. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264, as follows:

“The contention that the preparation of the coupler for the impact is distinct from the act of coupling is a mistaken attempt to separate a part of an act from the whole. The preparation of the coupler and the impact are not isolated acts, but connected and indispensable parts of the larger act, which is regulated by these statutes, and the performance of which is intended to be relieved of unnecessary risk and danger.”

3. Appellant further insists that, if the coupler was defective, liability on its part could not be referred to a violation by it of the Safety Appliance Act, because it appeared that the car in question was not at the time appellee was injured being used in or in connection with interstate commerce. The answer to this is that it was expressly provided in Act March 2, 1903 (U. S. Comp. Stat. § 8613), that the Safety Appliance Act, with an exception which need not be stated, should be held to apply to all cars “used on any .railroad engaged in interstate commerce.” The ear in question was used on-appellant’s line of railway, which was engaged in interstate commerce. Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; Railway Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 473, 58 L. Ed. 1051, Ann. Cas. 1914C, 163.

4. It is next insisted that appellant could not be held to be liable as for a violation of said act because the car in question was not on its main track at the time stated,-, but was on a spur track used by it for the purpose alone of transporting freight from its main line track to the plant of a .refinery, company situated about a mile away and from said plant to its main line track. As we understand it, the contrary of the contention was determined to be the law in Railway Co. v. United States, cited above, and Railway Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874.

5. While the injury to appellee occurred in the state of Louisiana, his claim of liability to him therefor on the part of appellant was not predicated upon the laws of that state. The liability he sought to enforce was created by an act of Congress, to wit, the Safety Appliance Act before referred to. Railway Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874; Railway Co. v. Layton, 243 U. S. 617, 37 Sup. Ct. 456, 61 L. Ed. 931. We think that liability was enforceable in the courts of this state without reference to the laws of Louisiana, and that the rule which requires effect to be given to the laws of the state in which a tort occurs in determining the liability of a tort-feasor has no application to the case.

The assignments not disposed of by what has been said also are overruled, as we think none of them presents a reason why the judgment should be reversed.

The judgment is affirmed.
      @=>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    WELLS FARGO & CO. v. PORTER.
    (No. 7901.)
    (Court of Civil Appeals of Texas. Dallas.
    April 13, 1918.)
    Carriers @=>119 — Express Company — Damage to Goods — Unprecedented Storm.
    An express company is not liable for damages to goods due solely to an unprecedented storm, which could not have been foreseen or anticipated.
    Appeal from Dallas County Court; T. A. Work, Judge.
    ' Action by Miss Katherine Porter against Wells Fargo & Co. in justice court. There was a judgment for plaintiff in that court, and on appeal to the county court, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Baker, Botts, Parker & Garwood, of Houston, and Flippin, Gresham ■& Freeman and Walter G. Miller, all of Dallas, for appellant. W. W. Nelms, Maury Hughes, and El. J. Gibson, all of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued appellant in the justice court for the value of a trunk, containing wearing apparel valued at $175,. shipped from Dallas, Tex., to Galveston, Tex., which trunk and apparel were damaged in the storm at Galveston in August, 1915. A judgment was rendered in the justice court for appellee, from which an appeal was taken to the county court of Dallas county at law, where both parties filed written pleading. Appellant answered by general demurrer and general denial, and specially alleged:

“That plaintiff’s trunk arrived in Galveston-on Sunday morning, August 15, 1915, at about 9 o’clock a. m., and that plaintiff never called for said trunk at any time until on or about the 21st day of August, 1915; that on Monday night, the 16th day of August, 1915, the city of Galveston, Tex., was visited by an unprecedented hurricane, flood, and storm, which proximately caused the damage to plaintiff’s trunk and goods, and which unprecedented flood and storm was not and could not have been foreseen or anticipated by appellant. Appellant further alleged in said answer that said storm was unprecedented, in that the water rose higher in the city of Galveston than ever before, and that the wind blew longer and more terrific than at any previous time in the history of Galveston. Appellant further alleged that it did everything possible to protect the plaintiff’s trunk and goods from said flood and storm after the appellant became aware of the impending storm, flood, and hurricane.”

The case was submitted to a jury on special issues, and upon the jury’s answers thereto the court rendered a verdict in favor of plaintiff, from which an appeal is taken by appellant.

The evidence established beyond doubt the verity of the allegation of appellant’s answer as to the storm in which the damage was done to appellee’s property being -unprecedented, and we hold that this case is ruled by the decision in the case of I. & G. N. R. Co. v. Bergman, 64 S. W. 999, and the lower court erred in refusing to give appellant’s requested charge to find a verdict for it. See, also, Hunt Bros. v. Railway Co., 74 S. W. 69; Moffatt v. Railway Co., 113 Mo. App. 544, 88 S. W. 117; Grier v. Railway Co., 108 Mo. App. 565, 84 S. W. 158.

No liability of appellant being shown, the judgment is reversed, and here rendered for the appellant.

Reversed and rendered.


author: HIGHTOWER, O. J.

text:
    AMERICAN NAT. INS. CO. v. MUNSON.
    (No. 344.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 18, 1918.
    Rehearing Denied May 1, 1918.)
    1. Insurance @=>438 — Life Policy — Execution for Crime — Liability.
    An ordinary life policy, in the absence of provision regarding death of insured by legal execution as punishment for crime, does not insure against death by such means.
    2. Insurance @=>438 — Life Policy — Execution for Crime — Liability,
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4741, subd. 3, providing for clauses of incontestability in life policies, does not change the public policy of the state, so as to permit recovery for death of insured by legal execution as punishment for crime.
    Error from Harris County Court; Murray B. Jones, Judge.
    Action by Abbie Munson against the American National Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded, with instructions.
    Williams & Neethe, of Galveston, and Ken-nerly, Williams, Lee & Hill, of Houston, for plaintiff in error. Lane, Wolters & Storey and L. A. Adamson, all of Houston, for defendant in error.
   HIGHTOWER, O. J.

This writ of error is prosecuted from a judgment of the county court at law No. 2 of Harris county in favor of defendant in error, Abbie Munson, against plaintiff in error, American National Insurance Company, on a policy of life insurance issued by plaintiff in error on the life of Henry Sampson, dated November 24, 1913. At the time this policy was issued Sylvia Hamilton, mother of Henry Sampson, was named as the beneficiary, but afterwards and in accordance with the provisions of the policy defendant in error, a sister of Henry Sampson, was made the beneficiary in this policy. The amount stated on the face of the policy to be paid upon the death of Henry Sampson was $252, and weekly premiums were therein provided for. There is a provision in the policy to the effect that the same should be incontestable after two years from its date for the amount due, provided premiums have been duly paid, according to the terms of the policy.

It was alleged in defendant in error’s petition that Henry Sampson died on the 15th day of February, 1916, by being hanged in accordance with a sentence of death passed upon him by the district court of Harris county, in conformity with the verdict of a jury in that court condemning him to death for the crime of murder. The petition further showed that all premiums due on the policy had been paid and kept up, and it was alleged that the policy was in full force at the time of the death of said Henry Sampson, caused as above stated. It was further alleged in the petition that’insurance company, plaintiff in error, after due and proper demand therefor, refused and declined to pay to defendant in error the amount which it had obligated itself and became liable to pay on the death of Henry Sampson, and the statutory penalty of 12 per cent., as well as the sum of $100 for attorney’s fees, which was alleged to be reasonable, were prayed. Plaintiff in error answered and interposed a general demurrer to this petition, which was overruled by the court, and it having been agreed between the parties that the material facts set forth in defendant in error’s petition were true, the court proceeded to render judgment in favor of defendant in error for the full amount of the policy, and also the statutory penalty and attorney’s fees, as prayed. To the action of the court in overruling its general, demurrer plaintiff in error duly excepted, and the action of the trial court in that respect is the only matter here presented for review. The policy in question contains no provision stipulating either for or against the liability of the plaintiff in error in the event the life of Henry Sampson should be taken in obedience to a sentence of the law inflicted as a punishment for crime committed by him.

The question, therefore, for our determination is this: Does an ordinary life insurance policy, in the absence of any provision in regard thereto, insure against death by act of the law of the land administered as a punishment for crime? We have reached the conclusion that the question must receive a negative answer. This question was squarely before the Supreme Court of the United States in the case of Burt v. Union Central Life Insurance Co., reported in 187 U. S. 362, 23 Sup. Ct. 139, 47 L. Ed. 216. In that case it was clearly held by that great court that a policy of life insurance does not insure against the legal execution of the insured for crime, even though he may, in fact, have been innocent, and therefore unjustly convicted and executed. That decision was rendered in December, 1902, and following that decision was another by the same court, in the case of Northwestern Mutual Life Insurance Co. v. McCue, which was rendered in February, 1912, and is reported in 223 U. S. 234, 32 Sup. Ct. 220, 56 L. Ed. 419, 38 L. R. A. (N. S.) 57. In the latter case it was said:

“Death by a legal execution for crime is not covered by a policy of life insurance, though the policy contains no provision excepting such manner of death from the risks covered by it.”

It is unnecessary for this court to discuss the reasoning of the Supreme Court of the United States in reaching its conclusion in the above-mentioned cases, as such reasoning speaks for itself, and in the opinion of this court, the same is not only legally sound, but comports with the highest public policy and common sense.

It is contended, however, by defendant in error, that the Burt and McCue Cases, supra, are without controlling effect here, for the reason that neither of the policies under consideration in those cases contained a clause of incontestability, and that, therefore, those decisions are not relevant, and should not be decisive here. It is true that neither of the policies under consideration in those cases contained a clause of incontestability, but it is clear from the opinion of the United States Supreme Court in each of those cases that the risk of death inflicted upon an insured by a court of criminal justice for crime by him committed is not such a risk as would be assumed by an insurance company, in the absence of a provision for such assumption, and, further, that if such a risk were expressly assumed, the contract would be clearly void on the ground of public policy.

In the case of Scarborough et al. v. American National Insurance Co., decided by the 'Supreme Court of North Carolina in April, 1916, and reported in 171 N. C. 353, 88 S. E. 482, Ann. Cas. 1917D, 1181, it was held that an ordinary life policy, which contained a a provision that it should be incontestable after two years after date of issue, provided premiums were paid, did not cover the death of the insured as the result of execution for crime, though such risk was not accepted by the provisions of the policy. In that case the Supreme Court of North Carolina unhesitatingly approved and followed the holding of the 'Supreme Court of the United States in the Burt and McCue Cases, and expressly declined to follow the case of Collins v. Metropolitan Life Insurance Co., reported in 232 Ill. 37, 83 N. E. 542, 14 L. R. A. (N. S.) 356, 122 Am. St. Rep. 54, 13 Ann. Cas. 129, which latter case is mainly relied upon by defendant in error here in support of the judgment of the trial court in this case. We have read carefully Collins v. Insurance Co., and as said by the Supreme Court of North Carolina, we do not regard that case as a precedent to be followed in Texas, but prefer to follow the Supreme Court of the United States, and that of North Carolina, as well as others, holding contrary to the vietVs expressed by the Illinois Court, and will continue to so hold, unless we should be compelled to hold otherwise by a ruling of the ¡Supreme Court of this state on the same point.

But it is further suggested by defendant in error, by way of argument, that we have a statute in this state that determines this matter in favor of her contention, and in this connection article 4741, Sayles’ Texas Civil Statutes, is relied upon, which article prescribes what life insurance policies in this state shall contain. Subdivision 3 of said article reads as follows:

“A provision that the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable not later than two years from its date, except for nonpayment of premiums; and which provision may or may not, at the option of the company, contain an exception for violations of the .conditions of the policy relating to naval and military services in time of war.”

It was in compliance with this provision of our statute, evidently, that the clause of incontestability found in this policy was inserted. Now, defendant in error argues that the plaintiff in error in this case in effect seeks to contest the policy in question, when, by its very terms, it is expressly made incontestable after two years from the date of its issuance, except for nonpayment of premiums, and that to permit plaintiff in error to successfully make such contention would be to permit it to do that which the law of this state prohibits it from doing, by excepting death of the insured at the hands of justice from the risks assumed by it. It is argued in this connection that it is the inherent right of every sovereign state to adopt and declare its own rules of public policy relating to any subject, and that our state Legislature, by the terms of section 3, art. 4741, above quoted, has, in effect, declared that it is not against the public policy of this state for an insurance company to insure against death by legal execution for crime, and further that, in effect, the statute prohibits an insurance company from making any such risk an exception.

We cannot agree with this contention made by able counsel for defendant in error, for we cannot believe that the Legislature of this state intended, by the statute above mentioned, to declare that it should be in keeping with the sound public policy of this state to permit an insurance company to make a valid contract of life insurance covering the risk of death inflicted by the courts of justice of this state.

After careful consideration of this whole matter we have reached the conclusion that the trial court was in error in overruling the general demurrer interposed by the plaintiff in error, and for such ersor its judgment must be reversed. What we have said must be construed as having reference only to the particular facts as disclosed by the petition in this case, and it will be understood, of course, that nothing we have said, in disposing of this case, has reference to what might be the rights of a beneficiary in a case where the question of the right to take under the statutes of descent and distribution may be involved.

It appears from the record in this case that plaintiff in error, in its answer below, tendered to defendant in error the amount that had been paid as premiums on the policy in question, which tender wás refused, and therefore the judgment of the trial court is reversed, and the cause remanded, with instructions to render judgment in favor of defendant in error for the amount of such premiums, and otherwise dismiss the cáse. ■
      <g^»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STEGER v. MAY.
    (No. 830.)
    (Court of Civil Appeals of Texas. El Paso.
    April 18, 1918.)
    Appeal and Error <@=>493 — Transcript Showing Jurisdiction.
    The record on appeal, showing no citation to defendant, waiver, or appearance, fails to show the trial court had jurisdiction, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2109, 2110, as to transcript; recital in judgment of due citation not being enough.
    Error from El Paso County Court, at Law ; W. P. Brady, Judge.
    Action by E. P. May against V. Steger. . Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    Lea, McGrady & Thomason, of El Paso, and E. P. Phelps, of Houston, for plaintiff in error. R. B. Redic, of El Paso, for defendant in error.
   WALTHALL, J.

This action was brought in the county court of El Paso county by E. P. May against V. Steger to recover the sum of $500, alleged to have been sustained by him for the alleged breach of contract to inspect and buy certain horses and mules, and expenses incident to gathering same, time lost, etc. No answer was filed by Steger. Judgment by default was rendered for May, for $335.

Plaintiff in error assigns error in the court’s rendering judgment in any sum, there being no service of citation upon him, and no acceptance or waiver of service or appearance. While the judgment rendered recites that plaintiff in error, “though duly cited, having failed to appear and answer in this behalf, but wholly made default,” etc., the record does not otherwise show service of citation, waiver, or appearance. Article 2109, Vernon's Sayles’ Texas Civ. Statutes, prescribes that the transcript shall, except as provided, contain a full and correct copy of all the proceedings had in the case. Article 2110, Vernon’s Sayles’, provides that, if the pleadings or judgment show an appearance of the defendant in person or by an attorney, the citation and returns shall not be copied into the transcript. The record shows no agreement to omit the copying of the citation in the transcript. Where the record on appeal shows no citation to defendant, waiver, or appearance, it fails to show that the trial court had jurisdiction. Palomas Hand & Cattle Co. v. Good et al., 184 S. W. 805, and cases there cited; Daugherty v. Powell, 139 S. W. 625.

Eor reasons stated, the case is reversed and remanded.
      <@^For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PHILADELPHIA UNDERWRITERS’ AGENCY OF FIRE ASS’N OF PHILADELPHIA v. MOORE.
    (No. 840.)
    (Court of Civil Appeals of Texas. El Paso.
    April 11, 1918.
    Rehearing Denied May 2, 1918.)
    1.- Insurance <S=»328(14) — Fire Insurance — Avoidance oe Policy — Foreclosure with Knowledge oe Insured.
    The fact that insured knew that one holding a lien against the insured property would file foreclosure suit against him if he did not meet his obligation did not render filing of suit a commencement of the foreclosure with knowledge of insured within a provision avoiding the policy in that event.
    2. Insurance ®=»328(8) — Fire Insurance-Avoidance or Policy — “Change in Interest” oe Insured.
    Change in the interest of insured within a provision avoiding a policy therefor does not result from the execution of a deed for the property and placing it in escrow with a hank, where the condition on which its delivery was to be made was unfulfilled and the deed was not delivered by the bank.
    [Ed. Note. — Por other definitions, see Words and Phrases, First and .Second Series, Change.]
    Error from District Court, Coryell County; J. H. Arnold, Judge.
    Action by H. E. Moore against the Philadelphia Underwriters’ Agency of Fire Association of Philadelphia. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Locke & Locke, of Dallas, for plaintiff in error. McClellan & McClellan, of Gatesville, for defendant in error.
   HIGGINS, J.

Plaintiff in error issued an insurance policy in the sum of $1,000, covering a dwelling house. The policy is of the Texas Standard form, in which the insurer undertook to insure W. E. Tyre against loss by fire for a period of one year from December 21, 1915, and contains the usual provisions that it shall be void if the interest of the insured be other than the sole and unconditioned ownership, or if any change shall occur in the interest, title, or possession of the subject of insurance, or if, with the knowledge of the insured, foreclosure proceedings shall be commenced. W. M. Williams had a first lien upon the property, and the policy contained a loss payable clause as follows:

“It is agreed that any loss or damage ascertained and proven to be due to the assured under this policy shall be held payable to W. M. Williams, as interest may appear, subject, however, to all the terms and conditions of this policy.”

Defendant in error, Moore, had a second lien upon the property. On February 21, 1916, the house was destroyed by fire. Moore brought this suit to recover the amount of the policy, claiming that the policy should be reformed and interpreted as if an additional loss payable clause, identical with that quoted above, was attached to the policy, naming him as a beneficiary. Prom a judgment in his favor, the insurer appeals.

No point is made as to the right of Moore to have the policy reformed as indicated; his right of recovery being contested upon other grounds. It is insisted first that the policy was avoided because with the knowledge of Tyre, foreclosure proceedings were commenced prior to the date of the fire. The record discloses that on December 22, 1915, Moore filed suit against Tyre to foreclose his lien upon the property. On January 11, 1916, decree of foreclosure was entered. Tyre did not hear of the filing of the suit until citation was served upon him on December 23, 1915, and there is no evidence to show that he knew Moore was going to file foreclosure proceedings, except that he testified that some time before the filing of the suit, he (Tyre) had a conversation with Moore, and Moore said — ■

“that if I did not get busy that he was going to foreclose on me, and that if I did not get busy, he would have to get busy himself.”

Tyre further testified:

“Yes, I knew from that conversation he had with me that he was not going to give me any extension. In other words, a man don’t have to knock me down before I dodge. I knew he was going to file this suit against me.”

The clause providing that the policy shall be void, if with the knowledge of the insured foreclosure proceedings shall be commenced, was considered in London, etc., v. Davis, 37 Tex. Civ. App. 348, 84 S. W. 260, and under the construction placed upon the clause in that ease it must be held, upon the facts here presented, that the foreclosure proceedings by Moore against Tyre were not commenced with the knowledge of the latter, and the policy was not thereby avoided. The mere fact that Tyre knew that Moore would file a foreclosure suit against him if he did not meet his obligation did not render the filing of the suit a commencement of the pro-eeeding with the knowledge of Tyre. A debt- or is at all times charged with such knowledge, and it is not that contemplated by the provision under consideration. See, also, Insurance Co. v. Freeman, 33 S. W. 1091; Insurance Co. v. Neurenberg, 141 S. W. 357. The action of the Supreme Court in refusing a writ of error in the Davis Case must be regarded as an approval of the rule there announced.

It is further insisted that a change occurred in the interest of the insured in the subject of insurance, whereby the policy became void. The facts in this connection are as follows:

After the institution of the foreclosure proceedings, negotiations occurred between Moore and Tyre for an amicable adjustment. On January 31, 1916, Tyre executed a deed conveying the property to Moore in consideration of the cancellation of the judgment obtained by Moore in the foreclosure suit, and the assumption by Moore of the payment of the first lien notes held by Williams. On said date, the deed was placed in escrow with a bank, accompanied by an agreement signed by Moore and Tyre. The condition upon which the bank was to deliver the deed is set forth in the following section of the agreement, viz.:

“Now shall we on or at any time before the 1st day of March, 1916, remove from the land described in said deed and tender possession thereof to the said H. E. Moore, then you will hold said deed from that time as delivered to said H. E. Moore, and you may surrender same to him after he has paid to you the sum of $15 for our account or after he has paid such sum to us. If we do not remove from said property by the 1st day of March, 1916, then the obligation of the said H. E. Moore to receive said deed shall cease and same shall henceforth be held for naught and you shall return the same to us. If we shall surrender the possession of said land to the said H. E. Moore at any time prior to the said 1st day of March and he shall be entitled to title and possession thereof under our said deed, then the said H. E. Moore shall pay to us such reasonable amount as we shall be compelled to pay for the rental of another place in which to live between such time of our removal and the said 1st day of March, 1916.”

At the date of the fire Tyre had not removed from the property, and the deed had not been delivered to Moore, and Moore had not paid to the bank the $15 mentioned in the agreement.

Upon the facts stated, we think it clear that there had been- no change in the interest or title of Tyre in the insured property, within the meaning of the stipulation in the policy relied upon by plaintiff in error. Insurance Co. v. Tompkies, 30 Tex. Civ. App. 404, 71 S. W. 812; Insurance Co. v. Waggener, 44 Tex. Civ. App. 144, 97 S. W. 542; Insurance Co. v. Nowlin, 56 S. W. 198; Insurance Co. v. Duncan, 140 Ky. 27, 130 S. W. 805; 19 Cyc. 694-748.

Affirmed.
      cg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Iudexes


author: HARPER, C. J.

text:
    TEXAS & P. RY. CO. et al. v. BECKHAM BROS. & CO.
    (No. 815.)
    (Court of Civil Appeals of Texas. El Paso.
    March 28, 1918.
    Rehearing Denied May 2, 1918.)
    Appeal and Error @=>715(2) — Power to Ascertain Jurisdiction — Affidavits.
    A suit was brought by a copartnership alleged to be composed of Mont Beckham, Charles Dublin, and others. The judgment rendered was in favor of J. H. Beckham, C. A. Dublin, and others. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1593, provides that courts of appeal shall have power, upon affidavit, or otherwise, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction. Held, that assignment that there was no final judgment disposing of Mont Beckham and Charles Dublin would not be sustained where appellees, by affidavit, showed that Mont Beck-ham and J. H. Beckham are the same person, and the same as to Dublin; there being no showing to the contrary.
    Appeal from District Court, Ward County; Chas. Gibbs, Judge.
    Action by Beckham Bros. & Co. against the Texas & Pacific Railway Company and its receivers. Judgment for plaintiffs against the receiver defendants, and such defendants appeal.
    Affirmed.
    John B. Howard and Clay Cooke, both of Pecos, for appellants. Ben Palmer and W. A. Hudson, both of Pecos, for appellees.
   HARPER, C. J.

This action was brought by a copartnership, alleged in the petition to be composed of W. L. Beckham, Mont Beckham, Charles Dublin, and R. C. Withers, against the Texas & Pacific Railway Company and J. L. Lancaster and Pearl Wight, receivers, for damages on account of injuries to and ueath of certain cattle shipped by ap-pellees over the Texas & Pacific Railway, alleged to have been caused by unreasonable delays and rough handling. Appellants answered by general and special exception and general denial; specially answered that said cattle were shipped over their lines, under contract of shipment executed by the parties, which provided that the stock transported were not to be transported at any particular speed, nor within any specified time, or delivered at any destination at any particular hour, or in time for any market, and specially denied that said cattle were roughly handled; and alleged that they were not injured or bruised any more than is customary and necessary in the handling of a freight train the distance that these cattle were handled, and that the cattle were handled in the usual, ordinary and customary way, and were moved as fast and as quickly as was possible to have been moved in the premises. The cause was dismissed as to the railway company. Tried with jury; verdict and judgment for $986.25, against the receivers, in favor of W. L. Beckham, J. A. Beckham, E. J. Beckham, C. A. Dublin, and R. 0. Withers.

Appellants first suggest that there is no final judgment, because it does not dispose of Mont Beckham and Charles Dublin. Upon inquiry by this court as to the facts in aid of its jurisdiction, appellees by affidavits show that Mont Beckham and J. H. Beck-ham are the same person, and the same as to Dublin, and there is no showing to the contrary. We therefore hold the judgment to be final. Article 1593, Vernon’s Sayles’ Civ. Stat.; Webster v. I. & G. N. Ry. Co., 184 S. W. 295.

The assignments urge that the judgment is contrary to the law, and the evidence is against the great weight and preponderance of the evidence, and that the verdict is excessive, etc. We have carefully read the statement of facts, and are of the opinion that there is sufficient evidence to support the verdict, and that it is not excessive.

The assignments must therefore be overruled, and cause affirmed.
      <®^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BRAGG v. BRAGG et al.
    (No. 847.)
    (Court of Civil Appeals of Texas. El Faso.
    April 11, 1918.
    Rehearing Denied May 9, 1918.)
    1. Pleading <@=>111 — Another Suit Pending-Time of Filing — Identity of Parties.
    Where plaintiff filed a suit against two defendants, and on the same day one defendant filed an amendment in a previously brought suit upon the same subject-matter in another county against the other defendant, making plaintiff a defendant therein, upon defendant’s failure to prove he filed his amendment earlier in the day than plaintiff filed his suit, defendant’s plea to abate must be overruled.
    2. Afpeal and Error <@=3882(17) — Invited Error.
    An appellant cannot complain of failure of the court to file findings of fact and conclusions of law, where such failure was not the fault of the court but of appellant’s counsel.
    Error to District Court, Coleinan County; C. E. Dubois, Judge.
    Suit by Wm. I. Bragg against the Sovereign Camp of the Woodmen of the World and T. Z. Bragg. Judgment for plaintiff, and T. Z. Bragg brings error.
    Affirmed.
    Graves & I-Ioutchens, of Ft. Worth, for plaintiff in error. Snodgrass, Dibrell & Snodgrass, of Coleman, and Battimore, Boul-din & Battimore, of Ft. Worth, for defendants in error.
   HIGGINS, J.

On February 5, 1916,'at 8 a. m., Wm. I, Bragg filed this suit in Coleman county against the (Sovereign Camp of the Woodmen of the World to recover upon a certificate of insurance issued by said defendant upon the life of T. P. Bragg. T. Z. Bragg, an adverse claimant of the fund, was joined as a party defendant. T. Z. Bragg. had theretofore filed a suit in Tarrant county against said Sovereign Camp upon the same certificate. Upon February 5, 1916, T. Z. Bragg filed an amended petition in the suit pending in Tarrant county, thereby making Wm. I. Bragg a party defendant to that suit. In the Coleman county suit T. Z. Bragg then filed a plea in abatement setting up the former pendency of the Tarrant county suit. This plea was overruled by the court, and its action in so doing is made the basis of the first assignment.

Until the filing of the amendment in the Tarrant county suit there was no such identity of parties as would enable T. Z. Bragg to assert the pendency of another suit in abatement of the Coleman county suit. Bangham v. Thomason, 5 Tex. 127; Cooper v. Mayfield, 94 Tex. 107, 58 S. W. 827; Pullman Co. v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 315. But, when the amendment was filed, then there was identity of parties and subject-matter of litigation.

The burden of proof rested upon T. Z. Bragg to show that his amended petition was filed before 8 a. m. on April 5th. The record simply shows that it was filed on that date, and is silent as to the hour of filing. He therefore failed to discharge the burden resting upon him, and his plea in abatement was properly overruled. Boone v. Boone, 160 Iowa, 284, 137 N. W. 1059, 141 N. W. 938. After that plea was overruled, the cause was tried upon its 'merits without a jury. Judgment -was rendered in favor of Wm. I. Bragg.

The remaining assignment is based upon the failure of the court to file findings of facts and conclusions of law. The record discloses that the court did not refuse to file the same, and that his failure so to do was the fault of counsel for plaintiff in error. In this state of the record, the failure to file such findings and conclusions does not present reversible error.

Affirmed.