author: EOODGES, J.

text:
    WESTERN UNION TELEGRAPH CO. v. DEAVER.
    (No. 2010.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 7, 1918.
    Rehearing Denied Dec. 5, 1918.)
    Telegraphs and Telephones <§=»68(1) — Delay IN TRANSMISSION OP MONEY — MENTAL
    Suefering — Cause.
    Plaintiff could not recover from telegraph company for mental anguish suffered by his wife, where, on learning that his wife, away from home, among strangers, desired to bring on her mother’s body, he wired her funds, which she received in time to take train she had intended, though there was delay causing her apprehension; such anguish resulting from apprehension of a situation which did not occur.
    Appeal from Red River County Court; R. J. Williams, Judge.
    Action by C. E. Dea ver against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause remanded.
    Chas. S. Todd, of Texarkana, for appellant.
    Mahaffey, Keeney & Dalby, of Texarkana, for appellee.
   EOODGES, J.

The appellee sued the appellant in the county court of Red River county for $1,000 as damages for mental anguish suffered by his wife on account of a delay in the transmission and payment of a telegraph money order for $150 sent by him from Clarksville, Tex., to his wife at Eddy, Tex. Appellant answered by a general demurrer, a general denial, and a special plea setting up the' terms and conditions of a written contract for the transmission of the money order. To this the appellee replied by a supplemental petition demurring to the answer and alleging other facts not necessary to be here considered. The appellant’s demurrer was overruled, and in a trial before a jury judgment was rendered in favor of the' ap-pellee for the sum of $300. After the rendition of the judgment appellant requested the court to file his findings of fact and conclusions of law. A motion to that effect was made and granted. The case, however, is before us without either a statement of facts or the conclusions of fact and law requested.

It is insisted by the appellant that its gen'eral demurrer to the plaintiff’s original petition should have been sustained. The following excerpt from its brief contains the substance of the material portions of the petition;

“(1) On. the 12th day of July, 1916, plaintiff’s mother-in-law suddenly sickened and died near Eddy, Tex., several hundred miles from Clarks-ville, Tex., where plaintiff and his wife resided. Plaintiff’s wife reached her mother’s bedside shortly before her death, and upon her death the plaintiff’s wife desired to immediately return to Clarksville and bring the remains with her for burial. She was practically among strangers, was unacquainted in the town of Eddy, the nearest railroad station, and had with her only a small sum of money, insufficient to defray the expense necessary to return home with the body of her mother. She therefore, soon after the death, early on July 13th, called her husband at Clarksville over the long-distance telephone and requested him to send her money, which he assured her he' would do by telegraph to her at Eddy. At about 9 a. m. that morning, the 13th, the plaintiff went to defendant’s telegraph office in Clarksville, and informed" defendant’s agent in charge of his desire to immediately transmit to his wife by telegraph $150 to Eddy, Tex., and of his desire to have the money paid to his wife immediately, and informed such agent of the death of his wife’s mother, of his wife’s consequent distress, of the present and pressing need of his wife for money, of the purposes for which it was necessary for her to immediately have such money, and, on being assured by the agent that he could transmit it in a few minutes, the plaintiff paid to and deposited with said agent the sum of $150 in money to be immediately transmitted and .paid, without identification, to his wife at Eddy, and paid the charges demanded, and also paid for and sent a telegram to his wife at Eddy informing her of his action, which message he ordered ‘repeated,’ and paid the extra charge therefor.
“The petition then charges gross negligence of defendant in delaying a ‘long and unreasonable time’ the transmission of said money and its payment to his wife, causing her ‘to suffer great mental anguish to her damage,” etc.
“(3) That the telegram he sent to his wife was promptly transmitted, and she received the same about 9:30 a. m. of July 13th, and was assured thereby that on reaching Eddy the defendant would pay her the $150. She ascertained that she could leave Eddy with the body about 4 o’clock p. m. Her mother died in the country about eight miles from Eddy, and on said 13th of July, 1916, at about noon, plaintiff’s wife, with the remains of her mother, left the point in the country where her mother died and went" to Eddy, reaching there about 2 o’clock p. m., about two hours before the arrival of the train on which 'she expected to leave. She was a stranger in Eddy and had no one on whom she could rely for, or from whom she could obtain, financial assistance, and on reaching Eddy she had only a small sum of money, an amount insufficient to pay some small bills necessary to be immediately paid and to pay her own railroad fare and the expense of transporting her mother’s remains to Clarks-.ville. That on reaching Eddy, at about 2 o’clock, she called on defendant’s agent at Eddy for the money, and was ‘gruffly and unfeelingly’ informed by him that he had no money for her, on account of which she was terribly ‘shocked, grieved, perplexed, abashed, and humiliated,’ land was caused to suffer intense anxiety and mental distress; that she repeatedly and for nearly two hours, and until nearly time for the train to arrive, continued to suffer such anxiety and mental distress up until about 4 o’clock p. m., and until just a few minutes before the arrival of the train defendant’s agent insisted there was no money for her and refused to pay her any money. Finally, with the small sum of money she had remaining she purchased transportation for herself and her mother’s remains to Bells, Tex., where she expected to meet the plaintiff, and after doing so had in her possession only a few cents. Just a few minutes, however, before the arrival of said train the defendant’s agent said to her, ‘Here is a message from your husband now,’ and handed her a paper and told her to go to the bank, which she did, and the bank paid her $150 and she hurried back and took the train.”

According to the above averments, the contract of the telegraph company was not to transmit and deliver a message to Mrs. Dea-ver, but to pay over to her $150. While the company does not in such cases send the money deposited, it receives at one agency and pays out at another. The transaction, however, is so analogous to an undertaking to transmit and deliver money that the liability of the telegraph company will be governed by practically the same rules of law. The message contemplated in this instance was merely one of instruction to the disbursing agent at Eddy. The sending of the message was important only as a means of securing a delivery of the money when demanded by Mrs. Deaver. The appellant bound itself to pay over to Mrs. Deaver an amount of money equal to that deposited at Clarksville by her husband, and in time to enable her to use it in defraying her expens-és home on the following day. While the petition alleges a delay in performing that obligation, it admits that this was done. If the appellee is entitled to any damages, it is because the money was not sooner delivered. The only injury claimed as the result of the delay is mental anguish suffered by Mrs. Deaver at the prospect of being left in an embarrassing situation. The object of the appellant was to supply her with funds, and not to quiet her mental anxiety. It thus appears that the anguish she suffered was really unnecessary and resulted from nervous and disquieting apprehensions of a situation that did not occur.

The appellee refers to a number of cases where our courts have permitted a recovery for mental anguish resulting from the failure of telegraph companies to promptly transmit and deliver money order message. We have examined all of those cases, and find that in every instance the purpose for -which the money was sent was defeated in whole or in part by the delay or nondelivery of the message. It appears from the averments of this petition that Mrs. Deaver arrived at Eddy at about 2 o’clock p. m., and expected to leave at 4 p. m.; so that not more than two hours elapsed between the time she first called for the money and its delivery. It is for the mental annoyance she suffered during that two hours that she recovered a judgment. We are of the opinion that the facts alleged are not sufficient, and that the general demurrer of the appellant should have been sustained. As stated, it also appears that the court failed, without any sufficient reason appearing in the record, to file his findings of fact and conclusions of law as requested by the appellant. We think for that reason, if for no other, the judgment should be reversed, and the cause remanded; and it is accordingly so ordered.
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source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    WEEKS et al. v. FIRST STATE BANK OF DE KALB.
    (No. 2030.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 12, 1918.)
    1. Chattel Moktgages <@=> 177(3) — Action por Conversion — Burden op . Proof — Waiver.
    In mortgagee’s action against purchaser of mortgaged property for conversion, defended on ground that mortgagee had waived lien, where mortgagee proved existence of lien, its registration, and conversion of the property, the burden of proving the waiver of the lien was upon purchaser.
    2. Chattel Mortgages <§=>136 — Waiver op Lien.
    The. fact that mortgagee expected mortgagor to sell mortgaged property and thus secure money with which to pay debt, and that mortgagee knew that mortgagor was selling property, is not in itself sufficient to support finding that mortgagee waived lien.
    3. Estoppel <@=>62 — ‘“Waiver.”
    A “waiver” is the intentional relinquishment of a valuable right, and is the result of an agreement between two or more parties sufficient to constitute an estoppel.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Waiver.]
    4. Chattel Mortgages <@=>218 — Sale op Property — Rights op Mortgagor.
    Mortgagor has the right to sell the incumbered property, subject to the incumbrance.
    5. Chattel Mortgages <®=>225(1) — Sale op Property — (Rights op Purchaser.
    Purchaser of property, subject to chattel mortgage, who buys property with either actual or constructive notice of mortgage, pays purchase price to the mortgagor at his peril.
    6. Chattel Mortgages <@=>150(1) — Constructive Notice.
    Mortgagee, having filed mortgage, has the right to assume that purchaser of mortgaged property purchased goods with full knowledge that property was incumbered.
    Appeal from Bowie County Court; J. B. Lytal, Judge.

      Action by the First State Bank of De Kalb against A. R. Weeks and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    King & Estes, of Texarkana, for appellants.
    G. A. Wheeler, of Texarkana, for appel-lee.
   HODGES, J.

At a former hearing, the judgment in this case was affirmed without a written opinion. In response to an urgent motion for a rehearing, filed by the National Lumber & Oreosoting Company, the appellant,” we have concluded to give the grounds upon which the affirmance was based. Briefly stated, the facts were, in substance, as follows: In June, 1915, A. R. Weeks became indebted to the appellee, the First State Bank of De Kalb, Tex., and secured that indebtedness by executing a chattel mortgage on 900 cross-ties located on the Cotton Belt Railway right of way at Darden, Tex., 1,100 ties in the woods located in section 4, block 2, in Bowie county, and all the ties to be made by Weeks or under his direction on the land referred to. That mortgage was duly filed for registration as required by law. Thereafter the appellant bought the ties covered by the mortgage, and paid all of the purchase money over to Weeks, except a small balance for which Weeks gave an order to the ap-pellee and which was credited on his indebtedness. At the time the appellant purchased the ties, it had only constructive notice of the existence of the mortgage. This suit was filed by the appellee against the appellant for conversion of ties equal in value to the amount of the debt claimed. The appeal is from a judgment in favor of the appellee based upon an instructed verdict. There appears to be no controversy as to the amount of the judgment being correct if the appellee was entitled to any recovery for conversion of the ties.

The principal defense relied on in the trial court, and insisted on in this appeal, is a waiver of the mortgage lien by the appellee. It is contended that, if the evidence did not conclusively establish that defense, it at least made an issue of fact which should have been submitted to the jury. The existence of the lien and its registration and the conversion of the property having been established, the appellant had the burden of proving that the lien had been waived. For proof of that fact, it relies upon testimony which is, in substance, as follows: C. C. Crump, cashier of the appellee bank, was the agent who conducted the dealings with Weeks. Crump testified that he never consented for the ties to be sold; that nothing had ever been- said between him and any of the- parties upon that subjfect; that he knew that Weeks was engaged in the business of selling ties, and witness expected him to sell these ties. He also admitted that he knew that Weeks was selling the ties to the appellant. Appellant offered in evidence a letter written by Crump in August, 1916, the material portions of which are as follows: -

“Referring to our conversation over the phone Saturday in regard to Mr. Weeks’ ties, I wish to say in addition to the mortgage claim we have against Mr. Weeks that we are paying for the hauling of the ties as the haulers come in. We have no instructions from Mr. Weeks to do this, but told several haulers that we would see that they got their money for hauling. I would suggest that you deduct your advance to him and send us a cheek for the balance, if satisfactory to you, as I do not know what the amount of the hauling will be in addition to our mortgage claim of $318.00.”

Another letter was written the following month, which was as follows:

“Agreeable to our conversation over the telephone this morning, I herewith hand you a statement against Mr. Weeks for money advanced for making and hauling ties as follows: (Then aggregating several hundred dollars.) Kindly let me hear if the balance due him will justify this claim; if so, I will try to get an order from him to you to pay the amount to us.”

The utmost that can be said in appellant’s favor regarding this and other testimony upon which it relies is that it shows that Crump expected, when the mortgage was taken, that the appellant would purchase the ties from Weeks; that he subsequently ascertained that Weeks was so disposing of them, and made no objection. Assuming that Crump as the cashier of the appellee bank had authority to gratuitously consent that the mortgagor might dispose of the mortgaged property free from the bank’s lien, we do not agree to the conclusion that the evidence shows that this was done. The fact that Crump expected Weeks to sell the ties and thus secure the money with which to pay the debt, and that he knew that Weeks was selling them, is not alone sufficient to support a finding that he waived the lien. A “waiver” is the intentional relinquishment of a valuable right, and is the result of an agreement between two or more parties, or of conduct on the part of the lienholder sufficient to constitute an estoppel. Adams v. Paton & Co., 173 S. W. 546; 40 Cyc. 252. It is not contended that the appellant was influenced to purchase the ties by anything that Crump did or said. 'The record indicates that the ap-pellee bank was located in De Kalb, and that the place of business of the appellant was some miles distant. The evidence also fails to show that the appellant had any actual knowledge of any of the transactions between Crump and Weeks prior to its purchase of the ties. One of its witnesses testified that, just before the letters referred to were received, came the first intimation they had that the hank had a mortgage upon the ties, and that they bought no more ties and paid Weeks no more money after that time. The failure of the mortgagee to object to a sale of the mortgaged property may, under certain conditions, constitute an estoppel to thereafter assert a lien; but it is not alone to be taken as sufficient evidence to establish an agreement to waive the lien. Sanger v. Magee, 29 Tex. Civ. App. 397, 69 S. W. 234. A mortgagor has the right to sell the incumbered property subject to the incumbrance; and, when the purchaser takes it with either actual or constructive notice of the incumbrance, he pays the purchase price to the mortgagor at his peril. The appellee, having filed its mortgage in the office of the county clerk of Bowie county, had a right to assume that the appellant in dealing with Weeks did so with full knowledge that the property was incumbered. The failure of the appellant to protect itself by seeing that the money was applied on the debt was its own misfortune and one for which the appellee was in no way responsible.

We adhere to the original conclusion affirming this judgment, and the motion for a rehearing is overruled.
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author: WILLSON, O. J.

text:
    GILLESPIE v. WILLIAMS.
    (No. 1940.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 28, 1918.
    Rehearing Denied Nov. 14, 1918.)
    Appeal and Error <&wkey;209(l) — Failure to Object in Lower Court — Grounds foe Submission op Issue.
    The sufficiency of evidence to support a finding will not be considered on appeal, where the submission of the issue was not objected to in lower court on the ground of insufficiency of evidence.
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by George Williams against Joe R. Gillespie. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    December 28, 1912, appellee and appellant entered into a contract whereby the former, in consideration of $8,200 to be paid to him, undertook to furnish the material and build and complete a dwelling house for the latter.
    By this suit appellee sought to recover of appellant $548.95, which he claimed as a balance unpaid of the $8,200, and $404.08, which he claimed was due him for material furnished and work done at appellant’s request, not covered by the contract between them.
    In his pleadings appellant admitted he had not paid to appellee $423.63 of the $8,-200; denied that appellee at his request had furnished material and did work he was not bound by the contract to do; asserted that, if appellee furnished such material and did such work, he nevertheless was not entitled to recover therefor, because of a provision in the contract set out below; charged that appellee, in various particulars specified, had failed to comply, with his undertaking, whereby he (appellant) was damaged in sums aggregating $2,769.70; and prayed for a recovery against appellee of $2,346.07 —the difference between the $423.63 of the $8,200 which he admitted he had- not paid, and the $2,769.70 which he claimed as the damages he was entitled to recover of ap-pellee.
    Appellant’s claim to $635 of the $2,769.70 damages he sought to recover was based on a stipulation in the contract as follows:
    “Work to begin on said building at as early a day as practicable and to be completed and ready for occupancy by the 1st day of next May, and for each and every day after the 1st day of May that the building shall remain uncompleted the said Williams shall forfeit to the said Gillespie the sum of $5, to be deducted from the contract price hereinafter stated.”
    It appeared from the testimony that the building was not completed and ready for occupancy before September 5, 1913. Ap-pellee contended that appellant waived the right he had to demand a compliance with the stipulation set out above, and was estop-ped from asserting against him a liability on account of the delay in the completion of the building.
    The' provision in the contract referred to above as relied upon by appellant as a bar to a recovery by appellee of anything for material he might have furnished and work he might have done at appellant’s request not covered by the contract was as follows:
    “Any change in the plans and specifications hereafter agreed on by the parties hereto that contemplate an increase or reduction of the price to be paid for said house must be reduced to writing and signed by both the parties and such reduction specified.”
    On special issues submitted to them the jury found: (1) That appellant had not paid $488.20 of the $8,200 he agreed to pay appellee for building the house. (2) That by agreement with appellant appellee furnished material and did work, specifying same, not covered by the contract, of the value of $346.10. (3) That by • agreement a change was made in walls of the building, whereby the cost thereof was reduced $52.-80 below the amount same would have cost, had the change not been made. (4) That appellant declared, when the agreements covering the changes in the contract were made, that it was unnecessary to reduce the same to writing. (5) That appellant “expressly agreed that he would waive the clause of the contract which provided for a forfeiture of $5 per day for each day the house was not completed after May 1, 1913. (6) That the reasonable rental value of the house from May 1 to September 5, 1913, was $25 per month.
    On the ground that it conclusively appeared that appellee had failed to perform his contract in certain particulars specified by appellant to the damage of the latter in the sum of $63, the court found in appellant’s favor for that amount, and, overruling a motion by appellant to make other findings in his favor and on such findings, when made, and those made by the jury, to render judgment in his favor, rendered judgment for appellee against appellant for the sum of $718.50 and interest thereon from September 5, 1913, amounting together, to the sum of $854.32.
    It appears that the $718.50 adjudged to appellee was the difference between the aggregate (to wit, $834.30) of findings by the jury in his favor as follows: Balance of the $8,200 unpaid, $488.20; difference in price of certain material bought of Phillips, instead of Bacon, which appellant agreed to pay, $86.20; difference in cost, mantels used, placed in building, and those appellee agreed to place therein $74.90; cost of change made in back porch, $130; cost of china closet, $55 — and the aggregate (to wit, $115.-80) of the finding by the jury of $52.80 in appellant’s favor on account of decreased cost of walls and the findings by the court in his favor, amounting to $63.
    Lee R. Stroud, and Cosnahan & Ashworth, all of Kaufman, for appellant.
    Huffmaster & Huffmaster’ and Terry & Brown, all of Kaufman, for appellee.
   WILLSON, O. J.

(after stating the facts as above). Appellant insists that the finding that he had ■ waived a right he otherwise would have had (179 S. W. 1101) to recover of appellee as liquidated damages $5 a day for each day the building remained incomplete after May 1, 1913, was not supported by testimony. As appellant did not object to the submission of the issue on the ground specified, he is not, under the authorities now to be cited, entitled to urge the contention he makes in this court. Riedel v. Wenzel, 186 S. W. 386; Traction Co. v. Rogan, 199 S. W. 1135; Milling Co. v. Glasgow, 194 S. W. 686; Ross v. Moore, 191 S. W. 853; Bank v. Smith, 183 S. W. 862; Insurance Co. v. Burwick, 193 S. W. 167; Railway Co. v. Weems, 184 S. W. 1103. In the Wenzel Case the court said:

“By failing to object to the submission of the issue as to waiver, appellant agreed that the facts raised the issue. He cannot be heard now to say that there was no evidence of waiver.”

The contention made, that the finding that the additional cost to appellee of placing in the building other mantels than those first agreed upon was $74.90 was unsupported by testimony, must be overruled. The contention, it seems, is on the theory that the testimony of appellee, on page 5 of the statement of facts, that changes in mantels agreed upon made it necessary to make changes in chimneys, was excluded by the court; and it appears from the note on that page of the statement that that testimony was excluded, but we think it must be said to further appear that, after being excluded, it was again offered and admitted, for it appears on page 15 of the statement of facts that appellee testified without objection that it was “necessary to make some changes in the chimneys in order to accommodate the new mantels,” and that the change was made at appellant’s request.

The complaint in appellant’s brief remaining undisposed of is that the judgment is excessive in the sum of about $146. The contention is based on the fact that the Court, in rendering the judgment, failed to allow appellant credit for the $25 a month the jury found to be the rental value of the building from May 1, when it should have been completed, appellant says, and September 5, 1913, when it was completed. The contention ignores the fact that there was no finding by the jury that appellant was entitled to recover the rental value of the building during that time, and the fact that the court in effect found, when he refused to allow appellant anything on account of the delay in the completion of the building, that he was not entitled to recover such rental value.

The judgment is affirmed.
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author: WILLSON, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. BARRETT et al.
    (No. 2019.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 19, 1918.
    Rehearing Denied Nov. 28, 1918.)
    1. Telegraphs and Telephones <&wkey;37(9)— Interest oar Sender — Notice.
    It did not appear from telegram reading “Ruth is not expected to live unless change in condition,” or from telegram reading, “Ruth very bad. Can’t live long,” that either was sent for the benefit of the sender.
    2. Telegraphs and Telephones <&wkey;65(l)— Action for Damages — Pleading.
    In action by plaintiff for damages due to failure to promptly deliver to her son telegram with reference to serious condition of plaintiff’s daughter, the fact that the company had notice that the telegram was sent for benefit of plaintiff sender held to sufficiently appear from allegations of petition.
    3. Pleading <&wkey;406(7) — Ambiguous Aveb-ments — Construction in Absence of Special Exception.
    Although averment that purpose of sending telegram to son announcing serious illness of his sister “was to notify her brother of her condition so that he might come to her immediately” was ambiguous, where it was not excepted to, it was permissible to construe averment to mean that plaintiff’s purpose was to have son come immediately.
    4. Telegraphs and Telephones <&wkey;66(4)— Interest op Sender — -Notice—Evidence.
    In action by plaintiff for damages due to failure to promptly deliver to her son a telegram with reference to serious condition of plaintiff’s daughter, testimony held sufficient to charge defendant with notice that plaintiff sender had an interest in prompt transmission and delivery.
    Appeal from District Court, Eranklin County; J. A. Ward, Judge.
    Suit by Mrs. T. J. Barrett and another against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Chas. S. Todd, of Texarkana, and Albert T. Benedict, of New York City, for appellant.
    Wilkinson & Davidson, of Mt. Vernon, for appellees.
   WILLSON, C. J.

On October 13, 1917, and during several days immediately prior to that date, Mrs. Ruth Ellis, who resided in Omaha, was seriously sick at the home of her mother, appellee Mrs. T. J. Barrett, in Mt. Vernon. Willis Morgan, son of Mrs. Barrett and brother of Mrs. Ellis, was a soldier training at Camp Travis, San Antonio. At 12:40 o’clock of the afternoon of said October 13th, a message as follows was delivered to appellant at Mt. Vernon for transmission to San Antonio:

“Wfllis Morgan, Co. I, 359 Infy., Camp Travis, San Antonio, Texas. — Ruth is not expected to live unless change in condition. [Signed] Mrs. T. J. Barrett.”

At 7:30 o’clock of said afternoon another message, as follows, was delivered to appellant at Mt. Vernon for transmission to San Antonio:

“To Willis Morgan, Camp Travis, Co. I, 359 Inft., San Antonio, Texas. — Ruth very bad. Can’t live long. [Signed] Mrs. Barrett.”

Mrs. Ellis died at 9 o’clock of the evening of said October 13th. Her remains were held at Mrs. Barrett’s home in Mt. Vernon until 2:35 of the afternoon of October 14, 1917, when same were shipped to Omaha for burial.

Both the messages set out above were promptly transmitted from Mt. Vernon to San Antonio, but the one last set out was never delivered to Willis Morgan; and the other one, though received at San Antonio at 1:07 p. m. of said October 13th, was not delivered to him until about noon of October 14th, notwithstanding the fact that he was in barracks not over 75 or 100 yards from appellant’s office and could have been found easily. Had the first of the two telegrams been promptly delivered to Morgan, he could and would have taken a train which left San Antonio at 6:35 p. m., or one which left there at 9 p. m., of said October 13th, and would have reached Mt. Vernon the afternoon of October 14th in time to have accompanied his mother and the remains of his sister to Omaha. Because of the negligent delay of appellant in delivering the first of the two telegrams to him, Morgan did not leave San Antonio until 6:35 of the afternoon of said October 14th, and did not reach Mt. Vernon until about 2:35 of the afternoon of October 15th which was after the time when his sister’s remains were buried. This suit was by Mrs. Barrett joined by her husband. The trial was to the court without a jury, and resulted in a judgment in Mrs. Barrett’s favor for $500. Among other findings of fact made by the court were the following:

“4. I find that, at the time of the delivery of the first above-mentioned message to the defendant’s agent at Mt. Vernon by the plaintiff Mrs. T. J. Barrett, said delivery was made through and by Mrs. D. H. Holley, and that when Mrs. Holley delivered the message to the agent she advised the agent of defendant company that Mrs. Barrett wanted the said message sent at once and that Mrs. Barrett’s daughter was in a dying condition and they wanted Wfillis Morgan, Mrs. Barrett’s son, to come home at once; and further told him that Mrs. Barrett wanted her son Willis Morgan to come home.
“5. I find that the message was sent for the benefit of Mrs. Barrett, the plaintiff herein, that she might Have her son with her to console and comfort her at her daughter’s death and funeral, and that the defendant company was so notified when the message was delivered to the defendant’s agent by Mrs. Holley, acting for Mrs. T. J. Barrett, and that the defendant company was fully advised of the importance of prompt delivery of the said message for the use and benefit of Mrs. T. J. Barrett.”

In her petition appellee alleged:

“1. The purpose of sending the message was to notify her (Ruth Ellis’) brother of her condition so that he might come to her immediately.”
“3. The agents of the defendant were fully informed as to the urgency of the sending and delivery of the said messages, and of all the circumstances requiring the speedy transmission and delivery thereof, and the defendant was fully advised of the necessity of a speedy transmission and delivery of said message.”
“6. That plaintiff expected her son to come at once upon receipt of the message, which he would have done,” etc.
“7. That by reason of the negligence of the defendant the plaintiff was denied the privilege of having her son with her in her grief, and was denied the privilege of his consolation and presence with her at the funeral, all of which caused her to suffer great mental anguish and pain to her great damage in the sum of $2,500.”

It is not contended (and could not be without ignoring the ruling in Horn v. Tel. Co. [Sup.] 194 S. W. 386, and other cases decided by the courts of this state) that appellant was not liable as determined by the judgment if the first of the two telegrams set out in the statement above was sent for Mrs. Barrett’s benefit and appellant had notice of the fact at the time same was delivered to it for transmission to Morgan. The contention is that to authorize the judgment it must have appeared from both the pleadings and the testimony, and did not appear from either, that the message was sent for Mrs. Barrett’s benefit and that appellant had notice of the fact. Careful consideration of the record has convinced us that it did sufficiently so appear, and that the contention therefor should be overruled.

Each of the messages was set out in full in the petition, but it must be conceded that, when interpreted with reference to rulings made by the courts (Tel. Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869; Tel. Co. v. Bell, 90 S. W. 714), it did not appear from the language of either of them that it was sent for appellee’s benefit. However, we think that fact, and that appellant had notice of it, sufficiently appeared from the allegations in paragraphs 1 and 3 of the petition, set out in the statement above. While the meaning of the averments in paragraph 1 was ambiguous, they were not excepted to on that ground. Hence it was permissible to construe the averments to mean that Mrs. Barrett’s purpose in sending the message was to have her son “come to her immediately” and by his presence encourage and console her in her sorrow. The allegation in paragraph 3 of the petition that appellant was “fully informed as to the urgency of the sending and delivery of the said messages, and of all the circumstances requiring the speedy transmission and delivery thereof,” was sufficient, we think, to charge that appellant had notice that Mrs. Barrett’s purpose in sending the telegram was as alleged in paragraph 1. Tel. Co. v. Hidalgo, 99 S. W. 426. In the case cited, the message was sent to Hidalgo for the benefit of his wife. In support of a general demurrer to the petition, it was urged that there was nothing‘therein or in the message to apprise the company that Hidalgo had a wife and that the object of the message “was to afford information upon which s£e was expected to I act.” In disposing of the contention, the court said:

“There is contained in the petition an allegation that the sender of the message ‘then and there informed said agent of the facts and circumstances requiring the speedy transmission thereof.’ This, though general, and subject to special demurrer, was comprehensive and sufficient to admit proof of any information given the agent touching the urgency of the message. If the defendant desired the information and circumstances set forth, a special exception should have been employed.”

The testimony relied upon to show that the message was sent for Mrs. Barrett’s benefit, and that appellant knew it, was that of the witness Mrs. Holley (who acted for Mrs. Barrett in arranging with appellant’s agent to send the first one of the two messages) as follows:

“I told him (appellant’s agent) why she (Mrs. Barrett) wanted it sent; that the purpbse was that this boy’s (Morgan’s) sister was dying and they wanted him to come home at once. I told the agent that Morgan’s sister was in a dying condition and his mother wanted him to come home. I told him Mrs. Barrett wanted her son to come right home on account of the serious condition of her daughter.”

We think the testimony was sufficient to charge appellant with notice of the fact that Mrs. Barrett had an interest in the prompt transmission and delivery of the message and would suffer as the jury found she did, if delay in delivering it should result in the failure of her son to come to her immediately. Tel. Co. v. Bell, 90 S. W. 714; Tel. Co. v. Hankins, 110 S. W. 543. In the first of the cases cited, the message was from a sister to her brother, advising him that their mother was dying, and asking him to “come at once.” The sister, the sender of the message, was the plaintiff. She testified that she told the company’s agent, when she arranged with him to send the message, that Jernigan was her only brother. In disposing of a contention made by the company that it did not appear that the sister sent the telegram for her own benefit, the court said:

“We are of the opinion that the information given the telegraph company by defendant in error outside of the message, taken in connection with that conveyed by the message, tended to give it notice that the message was intended to summon H. A. Jernigan, the brother of defendant in error, to be present at the funeral and burial of their mother, for the purpose of sympathizing with and consoling the defendant in error in her distress during such funeral and burial.”

The only difference between that case and this one, so far as the question made is concerned, was, it seems, that in that one notice to the company that the sender wished the addressee to come to her was given by words in the message, while in this one it was given verbally.

The judgment is affirmed.
      <§=3lTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;JS'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    AYO et al. v. ROBERTSON et al.
    (No. 7654.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 20, 1918.
    Rehearing Denied Jan. 16, 1919.)
    1. Husband and Wife i&wkey;113 — Personal Injuries to 'Wife — Separate Property— Statutes.
    Where the right of action of a wife for personal injuries accrued after the passage of but before Acts 35th Deg. e. 194 (Yernon’s Ann. Civ. St. Supp. 1918, art. 4621), went into effect, Acts 34th Leg. c. 54, § 1 (Yernon’s Ann. Civ. St. Supp. 1918, art. 4621a), providing that damages for personal injuries to a wife should be her separate property, fixed her rights, assuming that the later act repeals the earlier.
    2. Husband and Wife &wkey;> 113 — Personal Injuries to Wife — Separate Property-Damages.
    Acts 35th Leg. c. 194 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621), classifying separate and community property, did not impliedly repeal Acts 34th Leg. e. 54, § 1 (Vernon’s Anri. Civ. St. Supp. 1918, art. 4621a), providing that compensation for personal injuries sustained by the wife shall be her separate property.
    3. Statutes &wkey;>158 — -Repeal—Repeal by Implication.
    Repeals of statutes by implication are not favored.
    4. Pleading t&wkey;34(3) — Construction.
    Every reasonable intendment will be indulged in favor of a pleading as against a general demurrer.
    5. Husband and Wife &wkey;>235(3) — Personal Injury Sustained by Wife — „ Instructions.
    In an action by a wife and her husband for personal injuries sustained by the wife, an instruction permitting recovery for “the reasonable value of lost services to plaintiff in the performance of her household duties down to this date, if any, caused or occasioned by the injuries sustained by her on the occasion in question,” could not be construed to have authorized any recovery in behalf of husband for the value to him for tho lost services of his wife.
    6. Appeal and Error <&wkey;>511(l) — Record— Bill of Exceptions — Matters Reviewable — Continuance.
    There can be no reversal because of the overruling of a motion of continuance, where no bill of exceptions to such action appears in the record.
    7. Continuance <&wkey;26(3) — Diligence.
    Where subpoena for witness was issued September 25th, and sheriff was permitted to delay making a return thereon, showing the witness temporarily absent, until October 12th, and nothing was done until trial on October 23d, no attempt being made to take his deposition, the return of the sheriff indicating where witness could be found, there was a lack of diligence, and it was not an abuse of discretion to overrule a motion for continuance.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Mrs. J. O. Robertson and husband against Tony Ayo and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    A. B. Wilson, of Houston, for appellants.
    Kennerly, Williams, Lee & Hill, Hutcheson & Bryan, and Fred T. Wilson, all of Houston, for appellees.
   GRAVES, J.

This appeal proceeds from a $2,500 judgment entered by the court below in favor of appellees against appellants upon a jury’s verdict. The verdict was returned for $3,000, but $500 of that amount was remitted before entry of the judgment.

While most of the assignments presented are at least subject to some of the objections interposed against them, since their evident purpose is to call in question the fundamental sufficiency of the pleadings and proof to support the judgment rendered, In the indulgence of a preference to slough off the trappings of mere procedural matters and get down to the merits of causes, we conclude to consider them.

It is first said the judgment is void, being for personal injuries to the wife in a suit therefor brought by herself and merely joined pro forma by her husband, because such damages constitute community property, and so cannot be recovered by the wife in that character of suit. We do not so understand the law. By Act of March 15, 1915, chapter 54, § 1, Acts of 34th Legislature, p. 103 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621a), it is provided:

•“All property or moneys received as compensation for personal injuries sustained by the wife shall be her separate property, except such actual and necessary expenses as may have accumulated against the husband for hospital fees, medical bills and all other expenses incident to the collection of said compensation.”

Appellants reply, however, that this statute was by implication repealed by the later act of 1917, Acts 35th Legislature, c. 194, p. 436 (Vernon’s Ann. Civ. St. Supp. 1918, art. 4621), in classifying the separate and community property as between husband and wife. A sufficient answer to this suggestion is that the act thus invoked was not available here, even if it had repealed the preceding one, because it did not become effective until after the cause of action herein recovered upon accrued; that act became effective 90 days after the adjournment of the Legislature on March 21, 1917, whereas this cause of action accrued on June 18, 1917. But if it were applicable, we see no reason for holding that it did impliedly repeal the former law, since repeals by implication are not favored. Cole v. State, 106 Tex. 472, 170 S. W. 1036; Sutherland on Statutory Construction, par. 138; Curtin v. Harris County, 203 S. W. 453.

The next contention is that neither the pleadings nor proof support the judgment, in that J. O. Robertson was solely a pro for-ma, not a real party to the suit, hence had no recoverable right of any sort involved therein, and the court erred, both in telling the jury they might find the reasonable value to him of his wife’s lost services, and in permitting any recovery at all in behalf of either for such physical pain and mental anguish as might be suffered by Mrs. .Robertson in the future, because there was no evidence reasonably indicating that she would probably so suffer.

As to the sufficiency of the pleading, since only a general demurrer was interposed against it, every reasonable intendment will be indulged in its favor. When that is done here, while this pleading is somewhat nebulous, we think it susceptible of the construction that J. O. Robertson was made a pro forma party only in so far as damages for personal injuries to the wife were sought, but a real party as to damages recoverable in behalf of their community estate. The seventh paragraph of the petition seems to us to plainly disclose that purpose.

Neither do we think the court’s charge can properly be construed to have authorized any recovery in behalf of the husband for the value to him of the lost services of his wife. She herself was an actual party plaintiff, and, to quote part of the language of the charge, it merely permitted a recovery for “the reasonable value of lost services to plaintiff in the performance of her household duties down to this date, if any, caused or occasioned by the injuries sustained by her on the occasion in question.”

When the statement of facts is looked to, we think the further objection that the proof failed to indicate the probability of future suffering upon Mrs. Robertson’s part likewise fades. Not only she herself, but one of the doctors, testified to such permanent injuries as would ordinarily and according to common experience produce future pain.

Lastly, it is claimed there should be a reversal because of the overruling of appellant’s motion for a continuance. No bill of exceptions to such action appears in the record, however, which fact alone would defeat the assignment presenting the matter as error. District Court Rule No. 55 (142 S. W. xxi); El Paso & N. E. Ry. Co. v. Sawyer, 56 Tex. Civ. App. 195, 119 S. W. 107; City of San Antonio v. Ashton, 135 S. W. 757. But, if that omission were overlooked, it is still thought no instance of an abuse of discretion is presented, in that appellants did not show sufficient diligence in efforts to procure the testimony of the absent witness for the want of which they asked the continuance, it appears upon the face of their application that the subpoena for the witness was issued to his residence address in Houston Heights, Harris county, on September 25th, the sheriff being permitted to delay making a return thereon showing the witness to be temporarily in San Antonio; Tex., until the 12th of October following; that counsel for appellants then left Houston on October 12th to look after other business elsewhere, remaining away until October 18th, it not appearing that any effort was made either to attend to this matter himself while away, or to have some one else do so for him; the case was not tried until October 23d, and no attempt is made to show that this absent witness’ deposition could not have been taken in the 11 days -intervening between the trial and the sheriff’s belated return indicating where he could be found.

After a careful consideration of all assignments, the conclusion is reached that none of them point out reversible error, and the judgment is, accordingly, affirmed.

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


text:
    BUTCHER et al. v. J. I. CASE THRESHING MACH. CO.
    (No. 2032.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 5, 1918.
    Rehearing Denied Dec. 12, 1918.)
    1. Corporations <&wkey;253 — Actions Against Stockholder op Corporation — Effect op Judgment Against Corporation.
    In a suit by a judgment creditor of a corporation against a stockholder to establish liability on the part of the stockholder, the judgment against the corporation is not only evidence, but, in the absence of fraud.or lack of jurisdiction, conclusive evidence, of fact that the corporation was indebted to the plaintiff.
    2. Abatement and Revival &wkey;>39 — Actions Against Corporation — Dissolution.
    Dissolution of a corporation under Vernon’s Sayles’ Ann. Civ. St. arts. 1206-1208, did not abate a suit pending against the corporation, or deprive the court of power to render judgment; the dissolution under such statutes being a qualified one.
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Suit by the J. I. Case Threshing Machine Company against John E. Butcher and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    September 22, 1914, the Mineóla Box Manufacturing Company, a corporation under the laws of Texas, made and delivered its five promissory notes for sums aggregating $1,820 to appellee. The notes were not.paid when they matured. After they had matured, to wit, on August 22, 1914, appellant commenced suit on the notes against the box manufacturing company in a district court of Dallas county. Before the cause was tried, to wit, on January 28, 1916, the box manufacturing company was by action of its stockholders, as provided in article 1205, Vernon’s Statutes, dissolved as a corporation. No receiver for it Was ever appointed. After the box manufacturing company was so dissolved, to wit, on March 8, 1917, judgment was rendered against it in appellee’s favor for the amount of said notes by said district court of Dallas county. Executions issued on said judgment to Dallas and Eamar counties were returned unsatisfied. At the time the notes referred to were executed, and ever afterwards until it was dissolved as stated, appellant Butcher was the box manufacturing company’s president, and appellant Wheeler was its secretary. They were its principal stockholders and its active directors, and exercised exclusive charge and control of its affairs. Before the dissolution of said box company, and during the pendency of said suit in Dallas county, said Butcher and Wheeler disposed of all the assets of the company, in value largely in excess of the amount of appellee’s judgment, to another corporation, to wit, the Cummer Manufacturing Company, receiving therefor stock) of said Cummer Manufacturing Company of the par value of $70,000, which they applied to their own use and benefit. Said Butcher and Wheeler after the dissolution of the box manufacturing company in its name defended the suit pending against it in Dallas county, and at no time before the entry of judgment therein pleaded or in any way suggested to the court that the box manufacturing company had been dissolved. But it was proven at the trial that the box manufacturing company had theretofore been dissolved. The suit resulting in the judgment from which this appeal is prosecuted was commenced by appellee September 24, 1917. It was on the judgment appellee had obtained against the box manufacturing company in the Dallas county district court, which ap-pellee claimed appellants became liable and bound to pay by force of articles 1206, 1207, and 1208, Vernon’s Statutes, as follows:
    “Art. 1266. Upon the dissolution of any corporation, unless a receiver is appointed by some court of competent jurisdiction, the president and directors or managers of the affairs of the corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them after paying all just and reasonable expenses; and to this end, and for this purpose, they may, in the name of such corporation, sell, convey and transfer all real and personal property belonging to such company, collect all debts, compromise controversies, maintain or defend judicial proceedings, and exercise the full power and authority of said company over such assets and properties; and the existence of every corporation may be continued for three years after its dissolution from whatever cause for the purpose of enabling those charged with the duty to settle up its affairs; and, in case a receiver is appointed by a court for this purpose, the existence of such corporation may be continued by the court so long as in its discretion it is necessary to suitably settle up the affairs of such corporation.
    “Art. 1207. The trustees mentioned in the preceding article shall be severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall have come into their hands.
    “Art. 1208. If any corporation created under this title or any general statute of this state, except railway, or charitable or religious corporations, be dissolved, leaving debts unpaid, suit may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; and if judgment be rendered and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution for the recovery of the portion of such debt for which they were liable; and the execution upon the judgment shall direct the collection to be made from property of each stockholder respectively,” etc.
    In their answer appellants charged, as the box manufacturing company did in reply to appellee’s suit against it in the Dallas county district court, that the consideration, for the notes had failed, and on the trial offered evidence in support of its answer. And appellants in their answer further charged that the judgment sued upon was void because the box manufacturing company had been dissolved as a corporation before the time when it was rendered. The trial court, however, concluded that the judgment was a valid one, and in this suit was conclusive as against appellants of the fact that the box manufacturing company was indebted to ap-pellee as it determined. He therefore excluded the evidence offered to impeach the judgment, and on the case as presented to him rendered judgment'in appellee’s favor. The complaint by appellants on this appeal is that the trial court erred in excluding said evidence and in holding that the judgment of the Dallas county district court was not void for the reason stated.
    A. P. Park, of Paris, for appellants.
    Wright & Patrick, of Paris, and Spence, Haven & Smithdeal, of Dallas, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

It seems to be very well settled that, in a suit by a judgment creditor of a corporation against a stockholder therein to establish liability on the part o£ the stockholder for the debt, the judgment against the corporation is not only evidence, but, in the absence of fraud in procuring it, or lack of jurisdiction in the court to render it, conclusive evidence, of the fact that the corporation was indebted to the plaintiff as determined by such' judgment. 7 R. C. Law, p. 420, and authorities there cited; note to McBryan v. Universal Elevator Co., 97 Am. St. Rep. 463.

“The prevailing view,” said the writer of the article on “Corporations,” in 7 R. O. Law, “is that a judgment against a corporation is conclusive against the stockholders in any action or proceeding to enforce their individual liability ; and the courts make no distinction between cases in which actions are brought against stockholders on account of unpaid subscriptions and those wherein the object is to enforce the statutory or constitutional liability. Until reversed in some direct proceeding for that purpose it cannot be collaterally attacked, even though the stockholder is a nonresident and not personally served with process, and though he never appeared or had notice of the suit.”

As we understand it, appellants are not in the attitude of combating the correctness of the rule as it is stated in the quotation above, but, rather, their insistence is that the case is within a qualification of the rule stated by the same writer as follows:

“A judgment against a corporation is not conclusive against a stockholder as to his liability for its debts when such judgment is open to attack by him on the ground that it was obtained by fraud or collusion or in a court not having jurisdiction.”

They do not claim the judgment was procured by fraud, but assert that the effect of the dissolution of the box manufacturing company was to abate the suit pending against it in the Dallas county district court, and so deprive that court of power to render the judgment it did render against said box manufacturing company. No doubt such would have been the effect of the dissolution of the corporation but for the statute set out in the statement above.- R. O. Law, pp. 750, 751, and authorities there cited. It will be noted that by the terms of that statute (article 1206) appellants, as the managers of the affairs of the box manufacturing company at the time it was dissolved, when it was dissolved became trustees for its creditors and stockholders, with full power to “settle its affairs,” and for that purpose were empowered in its name to “compromise controversies” and to “maintain or defend judicial proceedings,” it will be noted, also, that by the terms of the statute the dissolution of. the corporation was a qualified one; that is, it continued to exist for three years after its dissolution, so far as it was necessary for the purpose of enabling appellants “to settle up its affairs.” It would seem therefore that the common-law rule invoked by appellants did not apply to the case; that because of the statute the suit in the Dallas county .district court did not abate when the box manufacturing company was dissolved; and that appellants were within their rights and were discharging their duty as the managers of the affairs of the corporation at the time it. was dissolved, when they took up and continued the defense of the suit in its name. Such, in effect, seems to have been the view of the statute taken by the Supreme Court of the United States in Pease v. Rathbun-Jones Engineering Co., 243 U. S. 273, 37 Sup. Ct. 283, 61 L. Ed. 715, Ann. Cas. 1918C, 1147. Appellants insist, however, that the court of Civil Appeals for the First District in Lumber Co. v. Toole, 181 S. W. 823, and this court in Transit Co. v. Walton, 189 S. W. 307, hold to a contrary view. We do not think so. Each of, those cases, as appears from the report of the one first mentioned and from the record here of the other, is distinguishable from the Pease Case, as it is from this one, in that in each of them the suit against the corporation was commenced after the corporation had been dissolved.

There is, we think, no error in the judgment. Therefore it is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    ST. LOUIS, B. & M. RY. CO. v. SUTHERLAND.
    (No. 6122.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.)
    1. Carriers <&wkey;228(l) — Live Stock — Loss or Injury — Carrier’s Liability.
    When animals are delivered to a carrier in-sound condition, and the shipper does not accompany them, and they arrive at destination dead or in an injured condition, the burden rests on the carrier to show that it is not liable.
    2. Costs <&wkey;231(3) — Appeal from Justice to County Court — Recovery oe Less Amount.
    Where plaintiff recovered judgment in the justice’s court, and upon appeal to the county court again recovered judgment, but for a lesser sum, the costs in the county court should he assessed against the plaintiff.
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Suit by J. W. Sutherland against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff. Upon appeal to the county court judgment was again rendered for plaintiff in a lesser amount, and the named defendant appeals.

      Judgment of the county court amended and affirmed.
    Robert W. Stayton and John C. North, both of Corpus Christi, for appellant.
    W. R. Perkins, of Alice, and C. C. Forry, of McAllen, for appellee.
   FLY, C. J.

This is a suit for damages to certain cattle shipped over appellant’s and another lino by appellee from Bay City, Tex., to San Diego, Tex.; the grounds of negligence being delay and rough handling. The cause was submitted to a jury on special issues, and upon the answers thereto judgment was rendered in favor of appellee for $161.70. The suit originated in the justice’s court, where appellee obtained a judgment for $185.

Appellee testified that some of the cattle were fat and none of them were “thin.” He testified that he loaded the cattle so as to place the small cattle in ears by themselves, and the large cattle in other cars. W. D. Doughty, a witness for appellant, stated he was agent of the connecting carrier, and that, when the cars of cattle were delivered to his principal by appellant, two were dead and three were down and in such condition that they could not get up. Appellee did not accompany the cattle. It is true that witnesses for appellant swore that there was no rough handling or unreasonable delay, hut the jury did not believe that testimony, because they found not only that the cattle were in good condition when delivered to appellant, but that appellant was guilty of negligence in handling the cattle, and that such negligence caused the damages sustained by ap-pellee, in the sum of $150.

The rule is settled that, when live stock are delivered to a carrier in sound condition, and the shipper does not accompany them, and they arrive at destination dead or in an injured condition, the burden rests on the carrier to show that it is not liable. Railway v. Brosius, 47 Tex. Civ. App. 647, 105 S. W. 1131; Railway v. Powers, 54 Tex. Civ. App. 168, 117 S. W. 459; Railway v. Drahn, 157 S. W. 282; Railway v. King, 174 S. W. 960; Railway v. Cave, 174 S. W. 872; Railway v. Bryson, 195 S. W. 1165. If the jury discredited the testimony of appellant’s witnesses, the presumption in favor of the negligence of appellant was not removed.

If appellant was guilty of negligence, which the law, under the facts, presumes, there was testimony to sustain a verdict for $150.

Appellee recovered a judgment for less in the county court than in the justice’s court, and the costs should have been assessed against him in the county court. It is recited in the judgment that the judgment was for less in the county court than in the justice’s court, and yet, without endeavoring to state any “good cause” for so adjudging the costs, appellant had half of the costs assessed against it; the other half being assessed against its codefendant, the Texas, Mexican Railway Company. The latter did not appeal, and the judgment against it will not be disturbed.

The judgment of the county court will be so amended as to assess the costs of that court, incurred by appellant, against appellee, and as amended will be affirmed. The costs of this appeal will be assessed against appellee.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    MARION COUNTY v. ROWELL, County Judge, et al.
    (No. 2037.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 11, 1918.
    Rehearing Denied Jan. 9, 1919.)
    Limitation or Actions <&wkey;192(3) — Pleading — Suspension or Limitations.
    In action against county judge and sureties on his bond to recover money due plaintiff county, a demurrer to petition because action was barred by limitations was properly sustained, where supplemental petition in avoidance failed to show defendant’s fraudulent concealment of cause of action preventing bringing of an action, in view of Rev. St. 1911, arts. 1427, 1453, relating to judge’s statements, report to county clerk, and examinations.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Suit by Marion County against T. D. Row-ell, as County Judge, and the sureties on his official bond. Demurrer to petition sustained, and the County appeals.
    Affirmed.
    Mason Williams, of San Antonio, for appellant.
    W. L. Grogan, of Shreveport, La., and R. R. Taylor, Schluter & Singleton, and Armistead & Benefield, all of Jefferson, for appellees.
   LEVY, J.

The suit is by Marion county against T. D. Rowell, as county judge, and the sureties on his official bond, to recover a sum of money alleged to be due and owing the county during the year 1900. The suit was filed April 9, 1917. The defendants specially demurred to the petition upon the ground that the alleged cause of action was barred by the statutes of limitation. The plaintiff, by supplemental petition, pleaded in avoidance of the statute of limitation. The court sustained the demurrer, and the appeal is to revise the ruling of the court.

It is believed that the court did not err in sustaining the special demurrer; for the matters pleaded in the supplemental petition, relied upon to prevent the running of the statute of limitation, fail to show such fraudulent conduct or fraudulent concealment of the cause of action by the defendant as would prevent the bringing of an action such as sued upon. The statute (article 1427) requires an officer collecting money for the county to report same in writing to the county clerk, and the pleading does not show that such report was not made by the defendant. And as the statute (article 1453) requires the district judge to appoint at each term of the district court a finance committee to examine into the condition of the finances of the county, it would not appear from the pleading that the county was fraudulently prevented from legal ways of knowing or ascertaining that the debt alleged was due and owing. And otherwise giving full force and effect to the said pleading, it is believed that it is wholly insufficient to authorize the staying of the bar of limitation. It is quite unlike the cases cited.

The judgment is affirmed.
      i&wkey;:For other cases see same topic and K BY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LANCASTER & WIGHT v. ALLEN.
    (No. 2022.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 23, 1918.
    Rehearing Denied Jan. 2, 1919.)
    1. Master and Servant <&wkey;286(14) — Derailment of Ensine — Jury Question — Defective Switch Point.
    In action for death of locomotive fireman from derailment of engine engaged in interstate commerce, evidence that switch point was in a condition to cause wheel to climb on top of rail and cause derailment was sufiicient to warrant the submission to jury of whether switch point was defective.
    2. Appeal and Error <&wkey;1002 — Finding— Conflicting Evidence.
    Jury’s finding settled conflict in the evidence.
    3. Commerce &wkey;>8(6) — Interstate Commerce —Laws Applicable.
    In action for death of fireman engaged in interstate commerce, Act Cong. Feb. 17, 1911 (U. S. Comp. St. §§ 8639-8639), to promote the safety of employés and travelers by compelling common carriers to equip their locomotives with safe and suitable boilers, and section 2 of that act, as amended by Act Cong. March 4. 1915 (U. S. Comp. St. §§ 8639a-8639d), and the regulations of the Interstate Commerce Commission, constitute the law of the case.
    4. Master and Servant <&wkey;110 — Negligence of Railroad — Act of Congress.
    Act Cong. Feb. 17, 1911 (U. S. Comp. St. §§ 8630-8639), providing for official inspection of locomotives engaged in interstate commerce under rules of Interstate Commerce Commission, did not change railroad’s legal duty to exercise ordinary care to keep its machinery in reasonably safe condition, so that the fact that an appliance is not condemned upon inspection is not conclusive on question of whether it- is a safe appliance.
    5. Death <&wkey;86(2) — Damages—Actual Earning Power.
    In action for death, where deceased leaves widow and children, damages are not limited to loss of actual earning power of deceased, and jury may award children damages for loss of a father’s nurture and admonition.
    6. Death <&wkey;99(4) — Excessive Damages.
    In action for death of 48 year old fireman; a $27,000 judgment, awarded to widow and seven children, was not so excessive as to require reduction by Court of Civil Appeals.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Action by Mrs. Clara Allen, administratrix, against Lancaster & Wight, receivers. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. H. Ptendergast and Brown & Hall, all of Marshall, for appellant.
    S. P. Jones and J. T. Casey, both of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment for $27,000, rendered in favor of the widow and children of T. O. Allen, deceased, against the receivers of the Texas & Pacific Railway Company. Allen was killed as a result of the derailment of the engine on which he was employed as a fireman. The accident occurred near a switch in the railway yards at Texarkana, Tex., as the engine pulling the train was approaching the depot.

The court submitted only two of the grounds of negligence set out in the plaintiff’s original petition, a defective switch point, and a defective flange on a wheel of the front trucks of the engine. The appellant contends that the evidence as to a defective switch point was not sufficient to authorize the submission of that issue to the jury. While the testimony does not make clear just what caused the derailment of the engine, evidence was admitted, apparently without objection, which tended to show that the switch point was in a condition to cause the wheel to climb on top of the rail and produce such an accident. We are not prepared to say that this evidence was not sufficient to warrant the submission of that issue to the jury.

There was considerable testimony offered by both sides as to the condition of the flange on a front wheel of the engine trucks. That of the appellee tended to show that the flange was worn to such an extent that it was unsafe to keep the wheel in' the service. It appeared from the evidence generally -that wheels are constructed so that the angle made by the flange and the tread of the wheel is oblique; that in the course of time the wear resulting from friction tends to make that angle more acute; that the flange becomes thinner, and its inside surface next to the rail becomes more nearly vertical. The appellant introduced in evidence the rules and tests promulgated by the Master Car Builders’ Association, which were approved by the Interstate Commerce Commission. Several of appellants’ witnesses testified that a gauge had been adopted by which to measure the extent of the wear of the flange and thus determine when the wheel became deteriorated to such an extent that it should be put out of service. They testified that they had applied the gauge to this particular wheel, and that according to the rules it was mot subject to condemnation. The state of the evidence was such that the jury might have found either way regarding the condition of the wheel; and their verdict settled the conflict.

Appellants requested, among other special charges, the following:

“It appears in this case that Allen at the time he was killed was engaged in interstate commerce, and the rights of the plaintiff are therefore governed by the act of Congress. If you believe in this case that the flanges on the wheel were in accordance with said rules enacted by the Interstate Commerce Commission, then you cannot find that the railroad company was negligent in that regard.”

The refusal to give that charge is assigned as error. It is conceded that Allen was at the time of the injury assisting in operating a train engaged in interstate commerce, and it follows that the act of Congress and the regulations of the Interstate Commerce Commission, so far ás applicable, should constitute the law of this case. In 1911 Congress enacted a law entitled “An act to promote the safety of employés and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto.” Act Cong. Peb. 17, 1911, c. 103, 36 Stat. 913 (U. S. Comp. St. §§ 8630-8639). The second section (section 8631) is as follows:

“That from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the. rules and regulations hereinafter provided for."

In 1915 this law was amended (Act Gong. March 4, 1915, c. 169, 38 Stat. 1192 [U. S. Comp. St. §§ 8639a~8639d]) so as to make it apply to and include the entire “locomotive and tender and all of parts and appurtenances thereof.” The act provided for a system of official inspection to be conducted under rules and tests approved by the Interstate Commerce Commission. Carriers engaged in interstate commerce were required to file with the chief government inspector their rules and instructions for the inspection of their boilers, locomotives, tenders, and appurtenances. And after a hearing and approval by the Interstate Commerce Commission such rules and instructions, with such modifications as the commission required, should become obligatory upon the carriers. It was also provided that if any carrier failed to file its rules and instructions, rules and instructions not inconsistent with the law were to be prepared by the chief inspector, and, after approval by the Interstate Commerce Commission, should become obligatory. A penalty of $100 was prescribed for a violation of any of the terms of the act, to be recovered in a suit -filed in the District Court of the United States by or under the direction of the Attorney General. It was further provided that whenever a boiler, locomotive, or tender, or any of their appurtenances, were found to be in a condition not in conformity with the laws, rules, and tests adopted and approved as provided, the use of such machinery should be discontinued. The evidence shows that in obedience to that law rules and tests had been adopted for determining when car wheels had become so worn as to be condemned as unsafe. Testimony offered by the appellants tended to show that the wheel alleged to be defective was not unsafe according to the tests prescribed by the rules adopted for that purpose.

The propriety of giving the requested charge depends upon whether the tests approved by the Interstate Commerce Commission furnished the sole standard for determining the fitness of the wheel for use by the appellant. In his general charge the court had instructed the jury that the term “negligence” meant a failure to exercise ordinary care, and ordinary care was such care as a person of ordinary prudence would exercise under the same circumstances. He further told the jury that the receivers operating the railroad were required to exercise ordinary care to furnish its servants reasonably safe and suitable machinery for the work they were employed to perform, and to exercise ordinary care to keep that machinery in a reasonably safe condition for the transaction of its business; that if the defendants exercised that care, then the plaintiff was not entitled to recover. No complaint is made of the common-law tests thus laid down for the guidance of the jury in determining whether or not thé railway company had been guilty of negligence in continuing the use of the wheel in question. In the absence of any statute prescribing a different test, that adopted by the court is the one generally approved. When Congress enacted the law which authorized the Interstate Commerce Commission to provide rules and tests, it is not to be assumed that it was intended to lower the standard of caution which has so long prevailed and which is so universally recognized by the courts of this country. The moi-e reasonable inference is that the law was designed to enhance the safety of railway transportation by requiring greater precautions against the retention of defective machinery. The effect of the statute and the appropriate regulations which it authorized was to make the failure to comply with its standards negligence as a matter of law; whereas before this adoption such failure presented an issue of fact to be determined by the jury according to. the common-law standard. That, however, did not otherwise alter the legal duty of the railway company to still exercise ordinary care to keep its machinery in a reasonably safe condition. 1 Thompson on Negligence, § 13; Sutton’s Administrators v. Wood et al., 120 Ky. 23, 85 S. W. 201, 8 Ann. Cas. 894. The tests prescribed and approved by the commission were not expected to be the sole legal guides for determining whether or not ordinary care has been exercised by railroad companies in respect to their machinery ; by a special provision of the law carriers had the right to adopt rules requiring higher standards of fitness than those permitted by rules and tests. The rules of the commission were merely to determine when machinery had become so deteriorated that it must be removed from the service, and are not to be looked upon as licensing the retention of all machinery which might not be subject to condemnation, regardless of its effect upon the public safety. While it is not likely that loyal and competent government inspectors would adopt rules which permit the retention of machinery that common prudence would condemn as unsafe, yet their failure to condemn cannot operate as conclusive proof of a safe appliance. We are therefore of the opinion that the court did not err in refusing the special charge quoted. If the tests approved by the commission were more exacting than those recognized by common-law rules, the appellants have no right to complain at the refusal of the court to give the special charge. On the other hand, if those tests permitted the retention of machinery which men of ordinary prudence would condemn as unsafe, appellants were not entitled to the charge. For it is not to be assumed that Congress intended to authorize a lessening of the precautions for the safety of the public and the employés on railway trains.

The appellee offered in evidence a plaster cast of the wheel which it is claimed was defective. This plaster cast was made by one of the attorneys who represented the appellee in the trial in the court below. Over the objection of the appellant this attorney was permitted to detail the circumstances under which he took the plaster cast, and to testify that it was correctly taken. The objection urged was that the witness, being an attorney in the case, should not have been permitted to become a witness for proving such facts. It is argued that such conduct was a violation of the rules of professional ethics and should be rebuked by reversal of the judgment. Whatever may be said as to the professional propriety of an attorney engaging in that method of preserving and presenting evidence, we áre not disposed to go to the extent insisted upon by counsel for the appellant. We do not feel justified in visiting upon an unoffending client the consequences of an improper act on the part of an attorney where such act has not illegally prejudiced the rights of the opposing party in the trial of the ease. An attorney in a case is not by reason of his employment, rendered incompetent as a witness, except in certain instances. If his testimony is rejected it is upon the sole ground that he violated the rules of professional ethics.

The deceased left a widow and seven children. To the widow the jury apportioned $8,000, and th°e remainder was divided among the children, whose shares ranged from $250 to $4,500. It may be that the deceased, who was 48 years old at the time of his death and had an expectancy of something over 22 years, could not have earned, clear of his personal expenses, that amount of money, had he lived out his expectancy. But we do not understand the rule to be that the amount of damages recoverable in actions of this kind is limited to the loss of the actual earning power of the deceased. The children lose more than what their father would give them in dollars and cents; by the wrongful act of the railway company they were deprived of a father’s nurture and admonition, and it is left to the jury to place a pecuniary value upon that feature of their loss. While the verdict in this ease seems to be a liberal one, we do not feel justified in holding that it is so excessive as to require reduction.

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


author: MOTJRSUND, J.

text:
    WACO OIL & REFINING CO. v. TEXAS REFINING CO.
    (No. 6129.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 8, 1919.)
    Appeal and Error <&wkey;759 — Briefs—Copy of Assignments of Error.
    Assignments of error are insufficient where they consist of the motion for new trial, and the paragraphs thereof are not copied in the brief as required by court rule 29 (1⅜2 ®. W. x), but are radically revised or reconstructed.
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.
    Suit by Eugene Early and another, under the firm name of the Waco Oil & Refining Company, against the Texas Refining Company. Judgment for defendant, and plain-
    tiff appeals.
    Affirmed.
    Ingrum & Robinson, of San Antonio, for appellant. .
    Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee.
   MOTJRSUND, J.

This is a suit by Eugene Early and William Foster, under the firm name of Waco Oil & Refining Company, against appellee, for $2,112, alleging that they entered into a contract with appellee on or about October 6, 1913, whereby they sold appellee 96,000 gallons of prime crude cotton seed oil f. o. b. at Wolfe City, Tex., at 45½ cents per gallon; that appellee breached the contract and refused to accept the oil, whereupon appellants sold same in. open market on October 10, 1913, at 43⅝ cents per gallon, or at a loss of $1,920 from the price agreed to be paid by appellee; that appellants were compelled to pay a broker $192 for making such sale. The petition contained the further allegation that appellants had a contract with the Hunt County Oil Company for said quantity of oil, providing for the delivery of four tanks in October, four in November and four in December, f. o. b. mill, in buyer’s tanks, to be paid for by sight draft with bill of lading attached; that appellee was fully informed of the terms of said contract and that it would have to pay the difference between the price at which plaintiffs had bought said oil and that to be paid by appellee; that, after closing the contract over the phone, appellant assigned the contract, without recourse, to appellee, and attached same to a draft for the sum due; and that appellee refused to honor said draft, and notified appellants it would' not take the oil.

Appellee answered by general denial, and a special plea that it made no agreement other than one to take the oil provided appellants procured for it a contract by the mill to sell the oil direct to appellee, the purchase price therefor to be due and payable on delivery thereof; that appellants failed to tender such a contract.

The court at appellants’ request filed his conclusions of fact and law in support of his judgment for appellee. Prior to the filing thereof the amended motion for new trial had been overruled. The record contains no assignments of error other than the paragraphs of said motion. The assignments of error appearing in the brief are not copies of the paragraphs of said motion. Some of them present questions raised in the motion, but each has been revised to such an extent as to disclose clearly a purpose to reconstruct the paragraph instead of to copy the same. Objection is made to the consideration of the assignments and the same must be sustained. Mansfield v. Mansfield, 198 S. W. 169, and cases therein cited. The nearest approach to a copy is made in the fifth assignment, but, even if it could be held that as to such assignment rule 29 (142 S. W. x) was complied with, the assignment is too general to merit consideration. There being no fundamental error apparent, the judgment must be affirmed. We will say, however, that the briefs disclose a case in which appellants undertook to establish á contract made over the telephone, and there is .a direct conflict in the testimony of the persons who had the conversation. The court was warranted in finding that Middleton, who spoke for appellee, intended to contract for the delivery to appel-lee of a contract for oil made by the mill directly with appellee, and not for the assignment of a contract by appellants which the mill had made with them, and that, as appellants’ spokesman did not so understand and agree, there was no meeting of the minds of the parties.

Judgment affirmed.


author: RAINEY, C. J.

text:
    JOWELL v. LAMB et al.
    (No. 8217.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 14, 1918.
    Rehearing Denied Jan. 18, 1919.)
    1. Appeal and Error >&wkey;346(l) — Decisions Appealable — Time.
    Where a temporary injunction was granted on September 18th, and on October 30th a motion to dissolve was overruled, an appeal taken November 7th is too late, for under the statute an appeal from the granting of a temporary injunction must be taken within 15 days, and the action of the court on October 30th in no way modified or changed the original injunction; hence, appeal not having been taken in time, it must be dismissed.
    2. Appeal and Error <&wkey;100(2) — Decisions Appealable.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644, no appeal is allowed from a judgment denying a motion to dissolve a temporary injunction previously granted.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Suit by A. B. Lamb and others against Bill Jowell. From a judgment overruling a motion to dissolve a temporary injunction granted in vacation, defendant appeals.
    Appeal dismissed.
    J. Webb Stollenwerck, of Hillsboro, for appellant.
    'Collins, Morrow & Morrow, of Hillsboro, for appellees.
   RAINEY, C. J.

This appeal isi from ' a judgment overruling a motion to dissolve a temporary injunction granted in vacation.

On the 18th day of September, 1918, Hon. Horton B. Porter, district judge of Hill county, in chambers, granted a temporary injunction against appellant, at the instance of ap-pellees, restraining appellant from planting a certain tract of land or any part thereof in grain or other crops which will mature during the year 1919, etc., until further order of the court. The writ was issued and made returnable September 18, 1918, ■ and returned the same day. Appellant filed a motion to dissolve and dismiss.

On October 80, 1918, in vacation the motion to dissolve the temporary injunction was heard, and same was overruled. At the same time, the parties having appeared, the court heard the pleadings, the evidence and argument of counsel, and rendered judgment for plaintiffs, overruling said motion to dissolve, and that said injunction continue in “rorce pending trial.” Appellant excepted and gave notice of appeal.

On November 7, 1918, appellant filed'his appeal bond, reciting:

“Whereas, in the above styled and numbered cause, pending in the district court of Hill county, Tex., the court in vacation, to wit, on the 30th day of October, A. D. 1918, granted an injunction in favor of plaintiff and against the defendants, restraining said defendant from sowing grain on the 140 acres of land described in plaintiffs’ petition, and all costs, said injunction being a temporary injunction, to which action of the court the said Bill Jowell then and there excepted and gave notice of appeal,” etc.

—and further proceeded in proper form.

The bond purports to be one for an appeal from the order granting th'e injunction as though made October 30, 1918, when the injunction was granted on the 18th day of September, and the appeal in this case was attempted to be perfected on November 7, which is more than a month after the granting of the injunction. The statute requires that an appeal from the granting of a temporary injunction must be taken within 15 days from the granting of such order. The order granting the injunction was made on September 18, 1918, and was still in force on October 30th, when appellant’s motion to dissolve was acted upon and overruled by the court, and the court recited in' its judgment that the injunction would “continue in force pending trial,” which did not have the effect of beginning a new and original injunction from which an appeal would not at that time lie. The time for taking an appeal from the original granting of the injunction had long since expired. The action of the court on October 30th in no way modified or changed the injunction. Appellees attack this appeal for the want of jurisdiction in this court to entertain it. The appeal was not prosecuted in time, which leaves this court without jurisdiction; hence the appeal will have to be dismissed. The appeal cannot be. sustained on any other ground, as the judgment was on a motion to dissolve, which motion was overruled, and no appeal*is allowed from such a judgment. Vernon’s Sayles’ R. S., art. 4644; Powdrill v. Powdrill, 134 S. W. 272.

Having no jurisdiction to review and determine this case, the appeal is dismissed.
      ©^oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHEW et al. v. DE WARE et al.
    (No. 1903.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 12, 1918.
    Rehearing Denied May 2, 1918.)
    1. Boundabies <&wkey;3(6) — Coeners.
    An established original corner must control.
    2. Boundaries <&wkey;3(6) — Surveyor's Footsteps.
    The identification on the ground of the footsteps of the surveyor determines the true boundary.
    3. Waters and Water Courses <&wkey;lll — Lakes — Meander Lines.
    Where original boundary followed lake meander line and waters receded imperceptibly, the water’s edge was the boundary.
    Appeal from District Court, Marion County; J. A. Ward, Judge.
    Action by J. M. De Ware and others against W. D. Chew and others. Judgment on verdict for plaintiffs, and defendants appeal.
    Affirmed.
    The republic of Texas issued a patent on January 25, 1842, to Robert Potter for 22 labors of land situated in what is now Marion county on Ferry or Caddo Lake. The west boundary line of the survey calls for the lake. Since the time of the location of the survey, there has been, it appears, recession of waters of the lake. And, upon the contention that there is vacant public school land or domain between the west boundary line of the Robert Potter survey and the water’s edge of the lake, the state of Texas issued to W. D. Ohew two patents; one patent of June, 1910, calling for 344 acres; and one patent of November, 1913, calling for 178 acres.
    The appellees, owners under the Robert Potter survey, brought the suit in trespass to try title against the appellants, claiming under the W!. D. Chew patents. It was agreed in writing between the parties that the appellees owned and had the record title to all land claimed by them to all of sections 12, 13, and 24 of and under the Potter survey, except so much thereof as may extend beyond the west boundary line of the Potter survey. And the controlling issue in the case, as made in the trial, is the location of the west boundary line of the Robert Potter survey. If the present water’s edge of the lake is the west boundary line of the Robert Potter survey, then the appellees are entitled to judgment for the land sued for.
    The case was tried on special issues. The jury made findings of fact that: (1) The surveyor who originally located and surveyed the Robert Potter survey actually located and marked on the ground the northwest corner of the survey at a post oak marked R. P. near the water’s edge of Perry or Caddo Lake; and (2) intended at the time of the original survey to make the meanders and water’s edge of the lake the west boundary line of the survey; and (3) the west boundary line was surveyed and established, but unmarked, on the ground by the original surveyor. The jury made the further findings that: (1) The waters of the Perry or Caddoi Lake since the location of the Robert Potter survey slowly and gradually receded for about two years; (2) that the northwest corner of the Robert Potter survey was ten yards nearer the water’s edge of the lake at the time of the original location than at the present time; (3) that the waters of the lake were eight feet higher at the time of the location of the survey than since the recession and at the present time; and (4) that where the waters of the lake bordered the Robert Potter survey the recession of the waters was so slow and gradual as to be imperceptible at the time to the eye.
    On the verdict of the jury the court entered judgment for the plaintiffs. The findings of - fact made by the jury, having support in the evidence, are here adopted.
    Sehluter & Singleton, of Jefferson, for appellants.
    T. D. Rowell, of Jefferson, T. W. Davidson, of Marshall, and W. L. G-rogan, of Shreveport, La., for appellees.
   LEVY, J.

(after stating the facts as above). The original locating surveyor of the Robert Potter survey, as found by the jury, actually established on the ground and marked for identification the northwest corner of the survey at a post oak tree marked “R. P.” near the water’s edge of Perry or Caddo Lake. An established original corner must govern and control. Accordingly, the other calls in the patent for the west line will be followed from the established northwest comer. These calls are for the meanders of the lake, and, as found by the jury, the original locating surveyor of the Robert Potter survey intended to make the water’s edge and the meanders of Perry or Caddo Lake the west boundary line of the survey. The identification on the ground of the footsteps of the surveyor determines the true boundary. Hughes v. State, 57 Tex. Civ. App. 306, 123 S. W. 177. Therefore the west boundary line of the Robert Potter survey will in this case follow the meanders of the lake; for, as found by the jury, the receding of the waters of the lake on the west boundary line of the survey was slow and gradual, and where the change is gradual and imperceptible the boundaries extend to the waters. 5 Cyc. 904; Tiedeman on Real Property, § 489; 1 R. C. L. p. 230.

We have carefully examined all the assignments in the case, and conclude that no error exists that warrants a reversal of the judgment.

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


author: SONFIELD, P. J. PHILLIPS, C. J.

text:
    ORANGE LUMBER CO. v. ELLIS.
    (No. 3-2546.)
    (Commission of Appeals of Texas, Section A.
    Jan. 15, 1919.)
    Error to Court of Civil Appeals of First Supreme Judicial District. Action by J. S. Ellis against the Orange Lumber Company. A judgment for plaintiff was reversed by the Court of Civil Appeals (153 S. W. 1180), and upon an affirmance of the judgment of the trial court on rehearing, defendant brings error.
    Affirmed, as recommended by the Commission of Appeals.
    Adams & Huggins, of Orange, and Baker, Botts, Parker & Garwood,, of Houston, for plaintiff in error.
    Holland & Holland, of Orange, for defendant in error.
   SONFIELD, P. J.

Suit by J. S. Ellis against the Orange Lumber Company for personal injuries sustained by him while in the employ of defendant. A trial by jury resulted in a verdict and judgment in favor of plaintiff. On appeal, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause, 153 S. W. 1180. Pending motions for rehearing by both parties, the Court of Civil Appeals certified certain questions to the Supreme Court, among others, whether, upon the facts presented in the certificate, there was error in refusing a requested charge, to the effect that under the undisputed evidence the plaintiff assumed the risk of the accident, which resulted in his injury, and instructing the jury to return a verdict for the defendant; or did the facts so stated present the issue of assumed risk, which should have been submitted to the jury, as was done? The court answered that, upon the facts Certified, the issue was properly submitted to the jury. 105 Tex. 363, 150 S. W. 582. Based upon the answer to this and the other questions certified, the Court of Civil Appeals granted the motion of appellee (plaintiff) for rehearing and affirmed the judgment of the trial court. A writ of error was granted by the Supreme Court; the court being inclined to the opinion that upon the record disclosed, which was regarded as somewhat different from the facts certified, the plaintiff assumed the risk. Upon a careful examination of the record, we find no facts disclosed which, under the principles of law announced by the Supreme Court in its answer to the questions certified, would lead to the conclusion that the plaintiff, as a matter of law, assumed the risk. We therefore recommend that the judgment of the Court of Civil Appeals, affirming that of the district court be affirmed.

PHILLIPS, C. J.

The judgment recommended hy the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.