text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. MULKEY & ALLEN et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 24, 1913.
    Rehearing Denied June 28, 1913.)
    1. Carriers (§ 229) — Carriage of Live Stock — Measure of Damages.
    ' Where a carrier knew the ultimate destination of a shipment of cattle, although it did not carry them the whole way, the measure of damages for negligent injuries is the difference between the market value of the cattle in the condition in which they should have arrived at their destination and the market value in the condition in which they actually arrived.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.]
    2. Carriers (§ 230) — Injuries to Live Stock — Measure op Damages.
    In an action for injuries to a shipment of cattle, an instruction that the measure of damages is the difference between their market value as they should have arrived and as they did-arrive is erroneous, if there was no market value at the place of destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.]
    3. Carriers (§ 228) — Carriage op Live Stock-Market Value.
    In an action against a carrier for injuries to a shipment of cattle, evidence held to show that there was a market value for the animals at the place of destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    4. Carriers (§ 227) — Carriage op Live Stock — Actions — Pleadings — Sufficiency.
    In an action against a carrier for injuries to a shipment of cattle, the petition need not aver the measure of damages, for the measure of damages is a rule of law governing the admission of testimony, and need not be pleaded in order for the petition to state a cause of action.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    5. Trial (§ 194) — Instructions—Weight op Evidence.
    In an action against a carrier for injuries to a shipment of cattle which were fed for some time after the injury, an instruction that there could be no recovery for any apparent damage to the cattle if they afterwards recovered from the condition in which they appeared upon arrival at destination is properly refused as on the weight of the evidence, because singling out part of the evidence tending to show no loss.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439 — 441, 446-454, 456-466 r Dec. Dig. § 194.]
    6. Trial (§ 194) — Instructions—Weight of Evidence.
    In an action against a carrier for injuries to a shipment of live stock, a charge that one claim of negligence was that the cars were improperly bedded, and that if this fact was true-it constituted negligence, is not upon the weight of the evidence, in that it detailed facts relied upon by the plaintiff, for a plaintiff is entitled to have the facts upon which he relies as showing negligence submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    7. Carriers (§ 228) — Carriage of Live. Stock — Actions—Evidence.
    In an action against a carrier for negligent injuries to a shipment of live stock, where it appeared that they were fed for three or four months after the shipment and then were put upon the market, evidence as to whether the owners received full market value for them is. not admissible as tending to lessen the amount of damages, because not furnishing a correct basis for determining the injury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    8. Carriers (§ 228) — Cross-examination-Collateral Issues.
    Such testimony, although sought to be elicited on cross-examination of the plaintiff,, should be excluded, because leading to collateral and speculative issues.
    [Ed. Note. — For other cases, see Carriers,. Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by Mulkey & Allen and others against tie Missouri, Kansas & Texas Railway Company of Texas and another. Prom a judgment for plaintiffs, tie named defendant appeals.
    Affirmed.
    Alexander S. Coke and Eawtier & Pope, all of Dallas, for appellant. Wynne, Wynne & Gilmore, of Wills Point, H. C. Coke, of Dallas, DasAiell, Crumbaugh & Coon, of Terrell, and Woods & Morrow, of Kaufman, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes-

   RASBURY, J.

Appellees instituted this suit against appellant and tie Texas Midland Railroad, alleging that on December SO, 1910, they delivered to appellant 440 steers for transportation over appellant’s line of railroad from Roanoke to Greenville, Tex., there to be delivered to the Texas Midland Railroad for transportation on its line to Kaufman, appellant being informed at the time that the ultimate destination of the steers was Kaufman, and that they were being shipped to Kaufman to be fed and “finished” for the market; that prior to said time said steers had been on good pasture, with plenty of grass and water, and had been fed as well upon cold-pressed cotton seed cake since November 1, 1910, and.were in fine condition for the purpose contemplated; that they were four, five, and six year olds, and when loaded into the cars were in like condition, except some that were injured in the process of loading, caused by a defective loading platform maintained by appellant; that appellant, Missouri, Kansas & Texas Railway Company of Texas was negligent in transporting said cattle, since it consumed 26V2 hours in transporting said steers from Roanoke to Greenville, a distance of 100 miles, which was an unreasonable and unusual time, since the said distance could have been covered, by the exercise of ordinary care, in four hours, and which delay greatly damaged and injured said steers; that between said Roanoke and Greenville appellant negligently rammed and jammed its cars together, switched them about, knocking the steers down in the cars, throwing them against each other and the sides and ends of the cars, skinning, bruising, and injuring them to their great hurt and damage. Against the Texas Midland Railroad the same charges, in substance, were alleged, the delay on that road being that it consumed 6% hours in going a distance of 45 miles, when it should have made the run in 2 hours. It was further alleged that when the steers reached Kaufman five were down in the car, two dead, three so badly injured that they died shortly thereafter, the value of which was alleged to be $60 per head; that nine of said steers subsequently died as a result of the injuries received while on the cars, which were of the value of $60 per head; that the balance of the shipment, to wit, 426 head, were damaged $10 per head. It was also alleged that the bedding in the cars furnished by appellant was insufficient in that rotten straw was used for that purpose, which, in connection with the further fact that the floors of the cars were muddy, rendered same slippery and caused the steers to fall, and rendered it difficult for them to arise from the floor after falling, which further contributed to their injury; and that appellant “assumed” the duty of bedding the cars, and did with the assistance of appellees do so. The Texas Midland Railroad answered by general demurrer and denial, and specially denied the acts of negligence charged. Appellant answered by the general demurrer, certain special exceptions, the general denial, and specially assumed risk, and many acts of contributory negligence, a specific enumeration of which is unnecessary, in view of the issues presented upon appeal. All acts of negligence charged by appellees were specifically denied, and it was affirmatively alleged that the shipment was expeditiously handled between the points on its line, and that it used due care in transporting the steers over its lines, and that its liability ceased when the steers were delivered to the Texas Midland Railroad at Greenville. It was further alleged that the cattle were not shipped to Kaufman, there to be sold on the market, or to be shipped therefrom immediately to another market to be sold, but for feeding purposes and later shipped to market, and were in fact held by appellees at Kaufman for a period of 130 days, and then shipped to market and sold, and that if any were injured, they had fully recovered from such injuries and were sold by appel-lees for as much as they would have otherwise sold for. Appellant also specially pleaded the contract under which the steers were transported, reference to which will be made in our findings of fact. Other matters of defense were pleaded, but we have not included them in our statement for the reason that no issue arises here upon such pleas, or because same were not supported by testimony. There was a jury verdict in favor of the Texas Midland Railroad, and in favor of appel-lees for $4,360 against appellant. Judgment was entered accordingly. The Missouri, Kansas & Texas Railroad Company of Texas has appealed.

The verdict of the jury warrants the following conclusions of fact; The steers in question were purchased by appellees from Marion Sansom about two months before they were shipped to Kaufman. Sansom bought the steers in Dimmit county, Tex., where they were grown; after purchasing them he shipped them to Concho county, where they remained until some time in October, when he removed them to Denton county; when purchased by appellees the steers were in what is known as the Reynolds pasture in Denton county, a pasture containing about 2,100 acres of land, and the grass and water in the pasture were good and the pasture was not overstocked; when Sansom sold to appellees it was agreed and arranged that the steers should remain on pasture where they were until shipped to Kaufman, it being the intention of appellees to feed the cattle at Kaufman at the end of the pasturing period, and then ship them to market; the cattle when sold were strong and healthy and desirable as feeders; the steers were range raised, but not particularly wild, and eating their feed when sold; in addition to the grass afforded by the pasture the steers were fed cotton seed cake; the steers were five and six year olds, of average breed, healthy and safe for shipping and above the average weight for shippers; the steers were driven from pasture to Roanoke, and on December 30, 1910, were loaded in the cars at 3 o’clock p. m.; before and at the time the steers were loaded for shipment appellant knew that the ultimate destination of the cattle was Kaufman, although by their contract of carriage they were to haul the cattle only to Greenville, where by the contract of carriage appellant’s liability ceased, and where the Texas Midland Railroad took charge of the shipment on to Kaufman; the cars furnished had no bedding except that some of them had two or three bales of old wheat or oat straw; that some of them had dry dirt in them, and some of them a mixture of mulch and slush; that additional bedding was asked for, and the agent furnished some that was inferior for bedding purposes; that the bedding for the cars was insufficient for the shipment of the 'cattle; that the steers left Roanoke over appellant’s line at 3 o’clock p. m. December 30, 1910, and arrived at Green-ville at 5:15 p. m. the following evening; that between Roanoke and Greenville the steers were roughly handled, and unnecessarily rammed and jammed in the cars, but we will not attempt to recite the particulars as testified to by the witnesses; that on arrival at Greenville the steers were delivered to the Texas Midland Railroad, the latter road delivering the steers at Kaufman at 12 o’clock of the same day. The cattle upon arrival at Kaufman appeared in poor condition ; that two were dead at the time of the delivery; after unloading, 12 more head subsequently died; the remaining were damaged to the extent as found by the jury; that the herd were put in pens at Kaufman, and after feeding them for 100 or 120 days they were shipped to Ft. Worth, Kansas City, and St. Louis markets and sold.

The court charged the jury at trial, in substance, that the measure of damages, if any, to be awarded appellees was the difference between the market value of the cattle in the condition in which they would have arrived at their destination, but for the negligence of the defendant, and their market value in the condition in which, by reason of the negligence, they did arrive at their destination. Appellant does not deny the well-settled rule, as stated by the trial court, but contends it has no application in the instant case, for the reason that by the terms of the contract of carriage between appellant and appellee, appellant only agreed to transport the catte to Greenville, where its duty ended, and not to Kaufman, their ulti'mate destination. The rule in this state is that, although the contract of one of several carriers is to transport a shipment to a point short of its ultimate destination, such carrier, in case of negligence, is nevertheless within the rule stated, since, having knowledge of the ultimate destination, the presumption arises that its contract contemplated that the measure of damages would be controlled by the market value at the ultimate destination of the shipment As stated in our conclusions of facts, the jury found that the appellant knew the destination of the cattle was Kaufman, and, the evidence being sufficient to support the finding, there was no error in the court’s charge. Railway Co. v. Cunningham, 51 Tex. Civ. App. 368, 113 S. W. 767, and cases cited; Railway Co. v. Lumbley, 56 Tex. Civ. App. 418, 120 S. W. 1050.

It is next contended by appellant that the rule for the measure of damages as stated by the trial judge was erroneous, for the reason that the evidence failed to disclose that cattle of like character and quality had been bought and sold in Kaufman often enough and in sufficient quantity to establish a market value for them there. The rule is correctly stated; and, if there is no testimony in the record showing a market value for the cattle at Kaufman, the charge is erroneous. Railway Co. v. Crowder, 152 S. W. 183, and case's cited. Hence under this' contention the issue narrows to ascertaining-whether the cattle in fact had a market valu< in Kaufman.

The witness J. F. Mulkey, after qualify ing as an expert and experienced dealer in cattle, testified that there was a market value for steers of the kind shipped, and that such cattle had frequently been bought and sold in Kaufman, and that there was a fixed market value of same, and on cross-examination stated that South Texas cattle similar to> those sued on had been sold on the market in Kaufman, but not during the year 1910. The witness A. J. Morrow testified, among other things, that cattle are bought and sold and judged with reference to their size.aud as to how they will “finish” as “feeders,” without regard to their origin, whether from north, south, east, or west. A number of other witnesses corroborated Mulkey as to there being a market value in Kaufman for similar cattle, and all the witnesses fixed a market value upon the cattle which supports the judgment, and which we do not review, since the point made by appellant is that the evidence, as adduced, is not in reference to South Texas cattle. It occurs to us that the rule stated by the witness Morrow is correct, and that, merely because the cattle were from a particular section of the state, it could not necessarily be inferred that they do not come within the rule that they were of like quality and character with other cattle sold in the market. As explained by said witness, the better rule would seem to be to judge the cattle, not by the section from which they come, but with reference to their size, weight, condition, etc., and how they will probably “finish” as “feeders.”

The next claim is that the charge upon the measure of damages was further erroneous because the petition did not, in terms, allege the rule to be as stated by the court, and hence not authorized by the pleading. The substance of the' pleading on the issue raised is that those of the cattle that died were of the value stated, and that the others were damaged as stated. It is true the pleading nowhere alleges that the damage claimed is the difference between the market value of the cattle in the condition in which they would have arrived, but for the negligence of the appellant, and their market value in the condition in which, by reason of such negligence, they did arrive. But this, in our opinion, is immaterial. The measure of damages, being a rule of law governing the admission of testimony, has no necessary place in the petition. To the rule the evidence must conform, and by it the jury be guided under instructions from the court; but, in stating a good cause of action, it is only necessary to relate facts which under the rule would entitle the case to go to the jury.' Railway Co. v. Jenkins, 89 S. W. 1106; Railway Co. v. Smith, 19 Tex. Civ. App. 114, 47 S. W. 278.

By its third assignment of error appellant complains of the refusal of the trial judge to tell the jury that appellees could not recover for any “apparent” damage to the cattle, and that if the injured cattle afterwards recovered from the condition in which they appeared upon arrival at Kaufman, they might consider such facts in arriving at the actual damage to the cattle. The court below correctly charged the jury on the measure of damages, and permitted the broadest kind of inquiry into the condition of the cattle at the time of their shipment, at the time of their arrival, as well as their condition and improvement while being fed and before they were sold. As -we understand it, ■ these are inquiries going to prove or disprove the actual damage, and may be, and doubtless were, considered by the jury in the instant ease; but we do not understand that proof of such matters is authority for the court to suggest to the jury in his charge that such facts have been proven and may be considered by the jury in estimating the actual loss. Their admission in evidence is the warrant for their consideration, but the court may not single out that particular fact, and especially direct the attention of the jury to the fact that that particular testimony may be considered. The rule is that the actual loss is recoverable; and what the actual loss is, is a question to be determined by the jury from all the facts taken and considered as a whole, without special reliance on any particular fact or circumstance. Railway Co. v. Word, 51 Tex. Civ. App. 206, 111 S. W. 753.

The court below, in presenting appellees’ theory of the alleged negligent acts of appellant, directed the jury’s attention to the fact that one claim of negligence was that the cars furnished were improperly bedded, and instructed the jury that if that fact and the other facts also pleaded by appellees were, in their opiniop, true, it would constitute negligence. Appellant contends such charge gives undue prominence to the testimony offered in support of the allegation. We think not. Instructions are not upon the weight of the evidence, because they detail the facts pertaining to a theory of recovery relied upon by the plaintiff, since plaintiff is entitled to have his case presented to the jury in connection with the very facts on which he relies to support it. Railway Co. v. Ruckman, 49 Tex. Civ. App. 25, 107 S. W. 1158. This rule in no sense conflicts with what we have just said in our last paragraph. In the one case there is a singling out of special proven facts, while in the other there is the recital of a set of facts which it is alleged constitute in law negligence.

Upon trial of the case, while Fletcher Mulkey, one of the appellees, was testifying in his own behalf, appellant offered to show by said witness that when he sold the cattle on the market he got the full market value therefor, arid for that purpose asked the witness the following question: “When you sold these cattle In April or March, did you get full market value for them?” Upon objection by appellees the witness was not permitted to ariswer the question. Appellant, by its seventh assignment of error, asserts that the action of the court was error, and contends the testimony was admissible as bearing upon the question of the character of the injuries complained of. The injuries to the cattle occurred three or four months before they were sold; and, in passing upon the precise question, Mr. Justice Rice, in Missouri, Kansas & Texas Railway Co. of Texas v. Golson, 133 S. W. 456, after stating the general rule, says: “But we fail to perceive how the abstract statement as to what a part of said cattlq may have sold for three or four months thereafter at a distant market could have any tendency toward proving their condition or value at the time of their arrival at Nelagony.” See, also, to the same effect, Railway Co. v. Roberts et al., 126 S. W. 890. Mr. Chief Justice Brown, of the Supreme Court, in passing upon the same point, indicates that the admissibility of such an inquiry depends upon how far removed the time of the sale is from the time of the injury. He says such proof is not admissible to establish as the méasure of damages the market value of the cattle at the place where sold as the criterion by which to -determine the amount of recovery, but because it is permissible on cross-examination to ascertain the price at which the cattle were sold, since such testimony would tend to show that plaintiff’s opinion of the amount which the cattle had declined in value was not correct, and thus impeach the reliability of his judgment in making estimates of the damage sustained. Houston Oil Co. v. Trammell, 96 Tex. 598, 74 S. W. 899. In that case the cattle were sold within 50 or 60 days after receiving their injuries, and it would seem that the price for which they may have sold so soon after their injuries would tend strongly either to affirm or disprove plaintiff’s opinion as to the amount of the damages. In the instant case, however, the cattle were not sold until either three or four months after they received their injuries, and the price at which they were then sold could hardly be said to furnish a correct basis for determining the reliability of the opinion of those who saw them at the time of such injuries. Within the four months, with proper care and food, it is conceivable that the cattle not only could have entirely recovered from their injuries, but have gotten in a condition much superior to that before the injuries, and could command, in the market, a price in excess of what they would have commanded if they had never received any injuries.

Further, and as affording a better reason for rejecting the testimony, it may be said that such an inquiry at so remote a date would open a field of inquiry so widely speculative as to in effect destroy the rule itself.

Tfie fourth, fifth, eighth, ninth, and eleventh assignments of error have been carefully considered, and those that are not disposed of in other portions of this opinion are overruled, because they do not, in our opinion, present matter showing reversible error.

The judgment is affirmed.


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    MECASKEY v. RATLIFF et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 21, 1913.)
    1.Schools and School Districts (§ 103)— Tax Elections — Validity.
    Where a petition was presented, asking for an election in a school district to determine whether or not a special tax should be levied in such district, and whether or not bonds should be issued, and the order for holding the election to vote on levying the tax substantially complied with the statute, except that it did not express the purpose of the tax nor designate at what points in the district the election was to be held, but it was not claimed that any voter was misled or misinformed or prevented from voting, the election to determine whether or not the bonds should be issued, the order for which did designate t’he place for holding the election, was held at the same time, and two more votes were cast on the question of a special tax than on the question of bond issue,' the failure to designate the place where the election should be held or to state the purpose of the tax was not fatal; it being improbable that the electors misunderstood the purpose, as no tax was authorized by law except for school purposes.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    2. Schools and School Districts (§ 103)— Tax Elections — Validity.
    Under Rev. Civ. St. 1911, art. 2829, relative to school district elections, providing that each person who favors taxation for school purposes shall have written or printed on his ticket “for school tax,” and each' person opposed “against school tax,” an election held to determine whether a special tax should be levied was not invalidated because some of the ballots read “for tax” “for the tax” “against tax” and “against the tax,” where it was apparent that the voters knew that the tax as to which they were voting was a special school tax.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    3. Schools and School Districts (§ 103)— Tax Elections — Validity.
    Rev. Civ. St. 1911, art. 2829, relative to special school district elections, provides that the county judge shall appoint a presiding officer for each voting place to hold the election, who shall make due return thereof, as required by law, for holding a general election. Article 3024, a part of the general election law, provides that, when the ballots have been counted, the manager of' the election shall make out triplicate returns, which, together with a poll list and tally list, shall be sealed up in an envelope and delivered by one of the precinct judges to the county judge, that another of such returns shall be delivered by one of the managers to the clerk of the county court, and that the other of such returns shall be kept by the presiding officer of the election. Article 3027 provides that, immediately after counting the votes, the presiding officer shall place all the ballots voted, together with one poll list and one tally list, in a wooden or metallic box, and securely fasten the box with nails, screws, or locks, and within a designated time deliver the box to the clerk of the county court. Article 3031 provides, that no election returns shall be opened or estimated, unless they have been returned in accordance with the provisions mentioned. Held that, where the only returns made were placed in paper boxes tied with cotton strings, which contained the ballots and list or tally sheet showing the votes cast, but no attempt was made to show that the boxes had been tampered with, or that the votes had been improperly counted and credited, or that the returns made led to any uncertainty or confusion in declaring the result by the commissioners’ court, the failure to comply with the statute did not invalidate the election; since the provisions mentioned were directory only, and departures therefrom constituted but irregularities, not invalidating the election, unless they served to mislead or prevent t'he electors from a free and fair exercise of the right of suffrage, or from having the votes fairly estimated and declared.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Proceeding to contest a school election by J. IT. Mecaskey against L. D. Ratliff and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    R. E. Carswell, of Decatur, for appellant. McMurray & Gettys, of Decatur, for appel-lees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

This is a contest of an election held in common school district No. SO of Wise county on the 22d day of June, 1912, to determine whether or not bonds should be issued by said district for the purpose of erecting a schoolhouse, and for the purpose of determining whether or not a tax of 20 cents on the $100 should be levied in said district for school purposes, and to provide for .the payment of the principal and interest of said bonds. The election was duly declared by the commissioners’ court to have been in favor of the bonds and special tax; but appellant contests it on the ground that the order therefor was insufficient, that the ballots were irregular, and that the returns of the election were not as prescribed by the law. The trial court’s conclusions of fact and law are against contestant on all points presented.

The order complained of recited that a petition of the majority of the property taxpaying qualified voters of the district had been presented, asking for an election in district No. 80 to determine whether or not a special tax of 20 cents on the $100 valuation of property should be levied in the district. The order then proceeded to command an election on the 22d day of June, 1912, “in said district No. 80 to determine whether or not a special tax of 20 cents on the $100 valuation of property shall be levied in said district, and that George Gentry is appointed to hold said election.” The order was duly issued by the county judge, and no complaint is made of a want of due notice thereof; but it is insisted that the order is insufficient in that it does not express the purpose of the tax, and does not designate at what point or points in the district the election is to be held. The order seems to substantially comply with Revised Statutes, art. 2828, relating to the subject, save that no specific point in the district is named at which the polls shall be opened. The evidence shows that the petition for the special tax was in accordance with forms prescribed by the educational authorities, no complaint is made of any insufficiency of the notice of.election, or that any one or more of the voters in the district were misled or misinformed, or were prevented from voting, in view of all which it seems wholly improbable that the electors misunderstood the purpose of the tax. No special tax of the kind was authorized under the law save for school purposes, and the voters must have understood it as it was treated by the county judge and commissioners’ court. Nor do we think it can be said the failure of the order to name a specific place within the district where the polls should be opened is of itself sufficient to nullify the election. The evidence shows that, at the same time the order for special tax was made, an order was also made, as stated, for an election to determine whether or not the bonds should be issued. The order for the bond issue stated the specific point at which the election should be held, and the evidence shows that the election for the special tax was held at the same time and at the same place by separate sets of election officers. It further shows that the total vote on the question of special tax was 42, that the total vote on the question of bond issue was 40, and it seems quite evident that the failure of the order to be more specific in designating the place where the election should be held in no wise affected the result.

The only complaint of the ballots is that, on the issue of special tax, some of them were “for tax” and others “for the tax,” some “against tax” and others “against the tax.” The statute (article 2829) provides that: “Each person who favors taxation for school purposes shall have written or printed on his ticket ‘for school tax,’ and each person opposed to such taxation shall have written or printed on his ticket ‘against school tax.’ ” In the light of the court’s conclusions and of the evidence, it is apparent that the voters knew that the tax for which they were voting for and against was a special school tax. The petition therefor so designated it, as did also the order, and presumably the notice for the election, and it would be extremely technical and entirely contrary to the trend of the decisions hereinafter cited to say that the election in question should be nullified, and the will of the people defeated, because of the immaterial variations, from the statute in the ballots under consideration.

A more serious complaint, perhaps, is that made of the returns. Revised Statutes, art. 2829, relating to special elections of the kind under consideration, provides that: “The county judge shall appoint a presiding officer for each voting place to hold said election, who shall make due return thereof as is required by law for holding a general election,” etc. The general election law (article 3024) provides that, when the ballots have all been counted, the manager of the election in person shall make out triplicate returns of the same, certified to be correct, and signed by him officially, which, together with poll list and a tally list, shall be sealed up in an envelope, and delivered by one of the precinct judges to the county judge of the county, that another of said returns shall be delivered by one of the managers to the clerk of the county court of the county, and that the other of said returns shall be kept by the presiding officer of the election.” Article 3027 provides that: “Immediately after counting the votes by the manager of the election, the presiding officer shall place all the ballots voted, together with one poll list and one tally list, into a wooden or metallic box, and slaall securely fasten the box with nails, screws, or locks,” and within a designated time after the election deliver said box to the clerk of the county court of said county. Article 3031 provides that: “No election returns shall be opened or estimated, un less the same have been returned in accordance with the provisions” of the title containing the articles of the statute cited.

In the case under consideration there was no return made in separate envelopes to the county clerk or to the county judge, as provided in article 3024. The only returns made were placed in paper boxes tied with cotton strings, said boxes containing the ballots and a list or tally sheet, showing the total number of votes cast for and against the bond issue and for and against the special tax. No attempt was made to show that the boxes had been tampered with, or that the votes had been improperly counted and credited, or that the returns as made led to any uncertainty or confusion in declaring the result by the commissioners’ court, and it seems to have been expressly held in this state that requirements of the election law, such as we have referred to and cited, are but directory, and that departures therefrom constitute but irregularities of the officers in the eon duct and return of the election, which, unless they have served to mislead or prevent the electors from a free and' fair exercise of the right of suffrage, or from having the votes fairly estimated and declared, will not vitiate an election. The statutes do not so declare, and the object of every popular election is to ascertain the will of the people on the issue submitted to them, and mere in-formalities that afford no just ground for the conclusion that this had not been done will not render the election void. See Fowler v. State, 68 Tex. 30, 3 S. W. 255; McKinney v. O’Connor, 26 Tex. 5; King v. State, 30 Tex. Civ. App. 320, 70 S. W. 1019.

We conclude that the trial court’s conclusions of fact and law should be adopted, and the judgment affirmed.


author: CONNER; C. J.

text:
    CLAYTON v. PHILLIPP.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 17, 1913.)
    1. Fixtures (§ 4) — Intent in Making Annexation.
    Although the general rule is that a house attached to realty is a part thereof, if it is understood when the house is erected that it might be severed therefrom, it remains personalty.
    [Ed. Note. — For other cases, see Fixtures, Cent. Dig. §§ 3, 6; Dec. Dig. § 4.]
    2. Fixtures (§ 9) — Form — Conversion — House Attached to Realty — Agreement.
    Where the owner of a lot on which a house was located, during several years of ownership, recognized the house as belonging to another, and paid rent for it, it constituted the house personal property, and susceptible of separation and removal from the realty at the will of the parties.
    [Ed. Note. — For other cases, see Fixtures, Dee. Dig. § 9.]
    3. Vendor and Purchaser (§ 228) — Property Conveyed — Fixtures.
    Where a purchaser of a lot has full knowledge at the time of the purchase that a house located thereon belongs to a third person, and is not intended to be conveyed by the deed, he acquires no greater rights or interest in the house than his grantor possessed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. § 228.]
    4. Evidence (§ 424) — Parol Evidence — Admissibility — Contradicting Deed.
    In an action against a purchaser of realty for the conversion of a house located thereon, evidence that at the time of the purchase the purchaser was notified that the house was not a part of the realty, and was not intended to be conveyed with the deed, was not inadmissible as contradicting the legal effect of the deed; the owner of the house being a stranger to the deed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1966-1968; Dec. Dig. § 424.]
    5. Trover and Conversion (§ 47) — Fixtures — Damages—Value oe Property.
    In an action against the owner of realty for the conversion of a house located thereon, the true measure of damages was the market value, if any, or, in the absence of any market value, the actual value of the house itself, uninfluenced by the value of its location.
    [Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 265, 268, 272; Dec. Dig. § 47.]
    Appeal from Taylor County Court; rl\ A. Bledsoe, Judge.
    Action by Earnest Phillipp against George Clayton. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Cunningham &- Oliver, of Abilene, for appellant. J. W. Moffett, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER; C. J.

Appellee recovered a judgment for the sum of $25 as rent of a certain house located upon a lot owned by appellant, and for the further sum of $100 for the final conversion of said house.

Numerous assignments of error have been presented, but the greater number in one form or another present the single question of whether the house for the conversion of which appellee sued was personal property, or part of the realty upon which it was located. It is undisputed that appellant is the owner of the lot; he having purchased the same from C. H. Mathis early in the year of 1911. It is further undisputed that Mathis, during a continuance of ownership for several years, recognized the house as belonging to appellee, Phillipp, paying appellee rent for the use of the same, and that at and before appellant’s purchase, he was fully notified that appellee was the owner of the house, and that the conveyance of the house was not intended by the execution of the deed to him. While it is the general rule that a house attached to realty, as the one in question was, constitutes part of such realty, yet such rule is not without exception. It is equally well settled in such case that if, at the time of the erection of the house, it was understood and agreed that it might be severed therefrom and removed, its character of personal property remains as distinct as that of the material out of which it was erected. The long-continued recognition of the ownership of the house involved in this controversy by Mathis, certainly as between Mathis and appellee, constituted the house personal property, and susceptible of separation and removal from the realty at the will or upon agreement of the parties, and if necessary to this conclusion, it will be presumed that at the time of the original location of the house upon the lot, it was not intended that ‘it should become a fixture, but that, on the contrary, it was to retain the character of personal property. Appellant Clayton having, as stated, full notice of ap-pellee’s ownership and of the character of the house, can have no greater right than his vendor. The county court, therefore, was not without jurisdiction over the subject-matter of the controversy, and all other assignments involving the question stated are accordingly overruled.

It seems clear that the testimony of witnesses, to the effect that during appellant’s negotiations for the purchase of the lot upon which appellee’s house was located he was informed that appellee was the owner of. the house, is not subject to the objection that it was inadmissible because it contradicted the legal effect of appellant’s deed. Appellee was not a party to that deed, and he was not in any way bound thereby.

The objection, however, that the verdict and judgment is excessive on the issue of the house’s value we think is well taken. It is perfectly apparent from the testimony that, aside from its fixed location on Pine street, the house was not worth to exceed $50; this being the highest estimate. The value of the house is not to be enhanced by a consideration of a right for its continuance where located; for appellee had no such right. Appellee’s true measure of damage was the market value, if any, or the actual value in the absence of a market value, of the house at the time and place and in the condition it was when converted, excluding altogether any right on appellee’s part for a continuance of such location against the lot owner’s consent. The error noted, however, will not require a reversal in event of appellee’s willingness to remit the excess suggested. It will, accordingly, be ordered that the judgment be reversed, and the cause remanded, unless appellee within 20 days shall file a remittitur of $50, in which event it will be affirmed for the remainder; no other error having been developed by a consideration of the record.


text:
    MARTIN v. GRAY et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 21, 1913.)
    1. Appeal and Error (§ 742) — Statement of Facts — Necessity.
    Assignments of error, which are not followed by a statement of facts pointing out the error, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Vendor and Purchaser (§ 292) — Diens — Rights of Indorsee — Proceeds of Security.
    ■ Where the payee of a series of notes severally transfers them all to different persons, the transferees are entitled to share equally in the proceeds of the security.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 826-828; T)ec. Dig. §

    3. Vendor and Purchaser (§ 292) —Liens — Rights of Indorsee — Proceeds of Security.
    Where the original payee retains part of a series of notes, and transfers the’ remainder by usual indorsement or guaranty, the rights of the original payee to the proceeds of the security are postponed until the transferred notes have been satisfied, but this rule does not apply where the indorsement was without recourse.
    [Ed. Note. — For other cases, se'e Vendor and Purchaser, Cent. Dig. §§ 826-828; Dec. Dig. § 292.]
    4. Vendor and Purchaser (§ 292) — Vendor’s Lien — Assignment of Lien.
    Where the payee of a series of vendor’s lien notes indorsed a part' of them to another without recourse, but at the same time executed an assignment, which stated that the notes were prior incumbrances upon the land, and warranted the title to be perfect in the grantee, except for the incumbrance of the assigned notes, the notes so transferred are entitled to priority over those retained in the distribution of the proceeds of the land sold to foreclose the lien.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 826-828; Dec. Dig. §

    5. Evidence (§ 461) — Parol Evidence Affecting Writings — Intention of Assignor.
    In such a ease, parol evidence was inadmissible to show that the assignor did not intend to confer priority by the assignment.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. § 461.]
    Appeal from District Court. Comanche County; J. H. Arnold, Judge.
    Action by C. W. Martin against J. C. Gray and another to foreclose a vendor’s lien, securing certain nptes. From a judgment allowing foreclosure, but providing that the holder of other notes should share in the proceeds of the sale, plaintiff appeals.
    Judgment reformed and affirmed.
    A. J. Clendenen, of Ft. Worth, for appellant. Smith & Palmer, of Comanche, for ap-pellees.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

This suit was instituted by C. W. Martin against J. C. Gray and Walter Gray as makers of 10 promissory notes, executed by them and made payable to Mrs. M. S. Gaines, aggregating at the date of the trial $4,665.12. The notes had been given for part of the purchase money of a certain tract of land described in the petition, and the plaintiff sought to foreclose the vendor’s lien. It was alleged that the notes sued upon were 10 of a series of 15 notes executed by the Grays, and payable to Mrs. M. S. Gaines, and that she had retained the first five of the series at the time of her transfer of those sued upon by the plaintiff.

The plaintiff further sought to avail himself of the benefits of a chattel mortgage that had been given to Mrs. Gaines by the Grays to secure the principal of the first note in the series, and the interest on the whole, and there has been an effort to raise some question with reference thereto, hut inasmuch as the assignments relating to the chattel mortgage are not followed by any statement pointing out error, no further notice of the chattel mortgage or of questions relating to it will be taken.

The matferial question presented for our consideration is one of priority of lien. It appears from the court’s findings of fact and the undisputed evidence that plaintiff’s title to the notes su.ed upon rests upon an in-dorsement “without recourse,” signed by Mrs. M. S. Gaines, and the following written instrument, executed at the same time: “Hills-boro, Texas, October 20, 1911. For a valuable consideration I hereby sell and transfer to G. W. Martin 15 notes of $180.00 each signed by W. L. Hardin, 4 notes aggregating $360.00 signed by D. X. Reed, 5 notes signed by S. R. High aggregating $750.00, 9 notes signed by Mike McCann, aggregating $2,362.12, 4 notes signed by A. W. Payne amounting to $560.00, 10 notes signed by J. G. and Walter Gray aggregating $3,802.00, all of said notes being a vendor’s lien on lands for which they were given and being the prior incumbrances on said land, and I hereby warrant the title to said land to be perfect to the grantees to all said land in the deeds given when these notes were made subject only to the incumbrance on same to secure the payment of the above-described notes. M. S. Gaines.” The trial court received the evidence of Mrs. Gaines, to the effect that at the time of the execution of this instrument she did not intend thereby to confer upon plaintiff priority of lien over her own notes, it being her purpose that the notes transferred to the plaintiff and those retained by her should share ratably in the security, and the court so found and adjudged. It is undisputed, however, that at the time of the execution of the instrument quoted nothing of the kind was said. In other words, the right of Mrs. Gaines, if any, to share ratably in the security must rest alone upon the indorsement mentioned and the written instrument quoted.

It seems'to be finally pretty well settled, where a payee of a series of notes severally transfers them all to different persons, that the transferees are entitled to equally share in the proceeds of the security, but, where such original payee retains part of the series transferring the remainder by the usual indorsement or guaranty, that then the notes so retained by the payee will be postponed in the enforcement of the lien in favor of those to whom part of the series may have been so transferred. But the later rule is not applied, nothing else appearing, where the payee, as here, transfers part of a series of notes without recourse. See Fitch v. Kennard, 133 S. W. 738; Walcott v. Carpenter, 132 S. W. 981; Perry v. Dowdell, 38 Tex. Civ. App. 96, 84 S. W. 833; Anderson v. Perry, 98 Tex. 493, 85 S. W. 1138; Dilley v. Freedman, 25 Tex. Civ. App. 39, 60 S. W. 448; Lewis v. Ross, 65 S. W. 504; Douglass v. Blount, 93 Tex. 499, 56 S. W. 334.

In the case before us, however, as already seen, in addition to the indorsement without recourse the payee, retaining part of the series, executed a formal written assignment, and its consideration leads us to the conclusion that its legal effect was to confer upon the plaintiff in the suit priority in right to participate *in the proceeds of the land upon which the lien of the notes rested. By the terms of the instrument the notes in controversy were expressly declared to be “prior incumbrances,” and were expressly made “subject only to the incumbrances on same to secure the payments of the above-described notes,” among which were those in controversy. These terms are inconsistent with the claim of the appellee Gaines that the notes retained by her were to be of equal dignity with those transferred and entitled to a ratable participation in the sale of the security.

The court, therefore, erroneously admitted the parol evidence tending to vary the legal effect of the instrument, and erred in his judgment in awarding to appellee Gaines the right to a proportionate share of the proceeds of the land ordered sold in the enforcement of the vendor’s lien.

In other respects we find no error in the judgment, and the court’s conclusions of fact, not in conflict with what we have said, will be approved, but the judgment will be reformed and affirmed so as to give appellants the priority of lien claimed by him.

Judgment reformed and affirmed.


author: DUNKLIN, J.

text:
    ROSS v. KELL et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 31, 1913.
    Rehearing Denied June 28, 1913.)
    1. Witnesses (§ 131) — Incompetency — Transactions with Deceased — Will Contest.
    Under Rev. Civ. St. 1911, art. 3690, making parties in certain actions incompetent to testify as to transactions with or statements by testator, it was improper in a will contest to permit contestant to testify that he loaned testator certain money, which he always agreed to repay.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 565; Dec. Dig. § 131.]
    2. Wilis (§ 282) — Contest—Instructions— Pleading.
    Where in contestant’s pleading in a will contest, specific allegations that false representations were made to the testator were followed by an allegation that the aforesaid undue influence overcame his free agency, and it dearly appeared that the misrepresentations were the only predicate for the allegation of undue influence, such pleading was insufficient to present the issue of undue influence; and hence it was error to instruct upon such subject.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 640; Dec. Dig. § 282.]
    Appeal from District Court, Hood County; W. 'J. Oxford, Judge.
    Suit by J. B. Ross to probate the will of M. Kell, deceased, and M. L. Kell and another contest. From a judgment sustaining the contest, proponent appeals.
    Reversed and remanded.
    Hiner & Wilson, of Granbury, and Stephens & Miller, of Ft. Worth, for appellant. R. L. Stennis, of Weatherford, J. C. Wilson, of Ft. Worth, Estes ,& Estes, of Granbury, and Jno. Davenport, of Wichita Falls, for ap-pellees.

      Tor other cases see same topic and section Number in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes,

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.

   DUNKLIN, J.

J. B. Ross instituted this suit in the county court of Hood county to probate a certain instrument in writing purporting to be the last will and testament of M. Kell, deceased; Ross being named as independent executor of the will. Texanna Kell and Mrs. Christina Foreman, daughters of the deceased, were the principal beneficiaries of the will. Mat L. Kell and T. J. Kell, two of the sons of the deceased, contested the application for the probate of the instrument, but in the county court the contest was overruled, and the .will duly admitted to probate. The contestants appealed the case to the district court of Hood county, in which court J. S. Kell, another son of the decedent, also appeared as a contestant, adopting the pleadings of the other two contestants. A trial in the district court before a jury resulted in a judgment sustaining the contest, from which judgment proponent Ross has prosecuted this appeal.

By the terms of the will two lots in the town of Granbury, apparently of little value, were devised to Henry C. Kell, another son of testator, but soon after the execution of the will testator executed to Hehry C. Kell a bill of sale to a stock of horses and cattle.

■ The tenth and eleventh paragraphs of the will are as follows:

“Tenth: My deceased wife and myself having already advanced to my son Mat L. Kell, 160 acres of land known as the Bruing-ton place in Hood county, Texas, by deed duly recorded in the Deed Records of said county, which land was valued at about the sum of eighteen hundred dollars ($1,800.00), and also having advanced to him two black mares of the value of one hundred dollars, and also having advanced to him four hundred and fifty dollars in cash with which to. assist him in making payments on lands purchased by him and owned by him in Hood county Texas, all of which advancements were made to him out of the community estate of myself and deceased wife, M. O. Kell, it is therefore my will and desire that the said Mat L. Kell have no part or lot in the estate possessed by me at the time of my death, he having already received such portion thereof, and of his mother’s estate that I desire him to have.

“Eleventh: I have already advanced to my son T. J. Kell, the sum of seven hundred and fifty ($750.00) dollars which he received from the sale of certain property in Floyd county, Texas, as an advancement 'to him out of his interest in his mother’s estate, and have also advanced to him out of his interest in his mother’s estate eight head of horses of the value of sixty-five dollars per head which advancements are about equal to the interest he would be entitled to in his mother’s estate; and it is my will and desire that he-have no lot or part in my estate at the time-of my death.”

In the contest filed it was alleged that testator was 85 years of age at the time the-will was executed; that by reason of his extreme age and the impaired condition of his health he was not possessed of sufficient mental capacity to make a valid will. As a further ground for the contest it was alleged that the facts recited in the two_ paragraphs-of the will above quoted were false, and that the testator had been induced to believe that the same were true by fraudulent representations made to him by Henry C. Kell, and that by reason of such misrepresentations, testator had been induced to exclude Mat L. Kell and T. J. Kell from shares in his estate-The pleading then continues with specific allegations that Mat L. Kell had purchased and paid for the 160 acres of land known as the “Bruington place,” and the two black mares, mentioned in the tenth paragraph of the will, and further that testator had never at any time advanced to said Mat L. Kell the-$450 mentioned in the same paragraph as an advancement, and that neither the money nor the horses mentioned in the eleventh) paragraph of the will were ever in fact advanced to T. J. Kell.

Error has been assigned to the admission, over proponent’s objection, of the testimony of contestant Mat L. Kell that witness had loaned his deceased father the sum of $485 some 20 years ago with which to assist the father in building his residence, and that the father had always agreed to repay to-witness said sum, and had recognized the justness of the claim. The objection was predicated in part upon the provisions of article 3690, Revised Statutes 1911, which reads: “In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall- be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Appellees insist that the evidence was not prohibited by the statute, and cite in support of their contention the cases of Martin v. McAdams, 87 Tex. 225, 27 S. W. 255; Simon v. Middleton, 51 Tex. Civ. App. 531, 112 S. W. 441.

In Martin v. McAdams, it was held that it was permissible to’ prove the handwriting of a testator by one of the devisees under the will. The statute above quoted was invoked to support the objection made to that testimony. In deciding that case our Supreme Court held that the testimony of the witness that the will was in the handwriting of the testator was not testimony to any statement by him, nor .to any transaction. with him, and in discussing the case the Supreme Court used the following language: “The making of a will is a transaction, but it is not a transaction of the testator with the devisees or legatees. The only participants in it are the testator and those whom he may call upon to witness that it is his last will and testament. The devisees may have nothing to do with it, and may in fact be ignorant of its existence, until after the death of the testator.”

In the case of Simon v. Middleton, supra, the Court of Civil Appeals for the Fourth district held that it was permissible to prove, by a daughter of the testator, that her father had made certain statements to her, which statements were material to sustain the contest of the will; one of the grounds of contest being the exercise of undue influence upon the testator. The objection urged to that testimony was based upon the statute above quoted. The decision turned upon the conclusion that the suit was not one “arising out of any transaction with such decedent,” and hence the statute did not apply. That decision seems to have been predicated upon the quotation above given from the case of Martin v. McAdams. The judgment of the trial court in that case was reversed, and the cause remanded, and an application for writ of error to the Supreme Court in that suit was dismissed for want of jurisdiction.

The case of Brown v. Mitchell, 75 Tex. 9, 12 S. W. 606, likewise was a case of contest of a will upon the grounds of lack of mental capacity in the testator to make a valid will, and upon the further ground that its execution was procured by the exercise of undue influence upon the testator. In that case our Supreme Court, after holding that the first ground stated was the real issue in the case, used the following language: “Appellant proposed to testify in his own behalf to many declarations made to him by his-wife before and after the will was made, which would have been admissible coming from a disinterested witness, but they were-objected to on the ground that they were-statements by the deceased which could not be proved by his evidence. This is, in effect, an action by the heirs of the deceased arising out of a transaction with her, if they sustain to her the relation claimed, and we-are of opinion that appellant cannot be permitted to testify to any statements made by her having bearing on the validity of- the-will in controversy. Itev. Stats, art. 2248.” In the case of Sanders v. Kirbie, 94 Tex. 564, 63 S. W. 626, which was a suit to set aside a will on the ground of undue influence exercised upon the testator, the question certified to the Supreme Court by the Court of Civil Appeals was whether or not certain testimony of some of the devisees under the will relative to statements by the testator was admissible, over the objection predicated upon the statute above quoted, and in that case our Supreme Court used the-following language: “The question assumes-that article 2302, Revised Statutes (which is the same as above quoted), under which it arises, applies in cases like this, and this-seems to be warranted by decisions of this court in which the provision has been so applied. Brown v. Mitchell, 75 Tex. 15 [12 S. W. 606]; Lewis v. Aylott, 45 Tex. 202.”

We think the decisions in the two cases last cited are decisive of the question now under discussion, adversely to the appellee’s contention, and that the testimony above referred to was improperly admitted.

Other assignments of error are presented to the admission of testimony of like character to that discussed above, but the bills of exception upon which the assignments are predicated are very long, showing a great bulk of testimony, all of which was objected to as a whole, and some of which, possibly, was not subject to the inhibition of the statute above quoted. In view of another trial, it will be unnecessary to do more than to call attention to this fact, without endeavoring to separate that portion to which the statute would apply, as what has been said already will sufficiently indicate our views. Jamison v. Dooley, 98 Tex. 206, 82 S. W. 780; G., H. & S. A. Ry. Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894.

The following is a portion of the charge given by the trial court: “Moreover, gentlemen, if you believe from tbe evidence in this case that at tbe time M. Kell executed said instrument, dated February 6, 1911, wbicb purports to be bis last will, bis mind was, either from sickness, disease, or mental decay, or from overweaning confidence, subject to tbe domination and control of bis son Henry O. Kell, or of any other of tbe beneficiaries in said will, and that be, the said Henry 0. Kell, or any other of the beneficiaries in said will, exercised such power and control over tbe mind of tbe said M. Kell, and over his will, in tbe disposition of bis property by said instrument, as to destroy tbe said M. Kell’s liberty and free agency, and to cause such disposition of bis property to be made to suit tbe will and wishes of Henry 0. Kell, or any other of tbe beneficiaries in said will, and .not such disposition of his property to be made as tbe said M. Kell at said time really willed and' wished, then, in that event also, you will find for tbe contestants, and against tbe probate of said will.” Error has been assigned to tbe charge, in part, on tbe ground that there was no issue of undue influence presented by contestants’ pleadings. Tbe effect of the alleged fraudulent representations upon tbe testator is characterized-in contestants’ pleading as undue influence, but it is perfectly clear that those misrepresentations were tbe only predicate for tbe charge of undue influence. Following specific allegations that the false representations were made, by Henry 0. Kell, tbe pleading contains this paragraph: “Contestants say that aforesaid false representations, made by said Henry C. Kell and others to contestants unknown to said M. Kell, and the aforesaid undue influence exerted by said Henry. C. Kell and others to contestants unknown upon said M. Kell, overcame and destroyed the free agency and independent volition of the mind of said M. Kell, and caused him to make a will wbicb, but for said false representations and undue influence, however, would not have made, and contestants say that said will, if executed by said M. Kell, was not the will of said M. Kell, deceased, but it is and was tbe fruits and results "of an unsound mind, and of said false representations and said undue influence so exerted upon said M. Kell by said Henry C. Kell.” Aside from tbe issue of lack of testamentary capacity in tbe testator to make a will, tbe charge should have been confined to the specific allegations of fraud practiced upon the testator by Henry C. Kell, and we are of opinion, further, that tbe issue of fraudulent misrepresentations by tbe heirs of tbe testator other than Henry C. Kell was not presented by the pleadings.

- Other assignments of error questioning the sufficiency of the evidence to support the contest will not be considered, in view of another trial, at which time the testimony may be entirely different.

For the errors indicated, the judgment is reversed, and the cause remanded.


author: FLY, C. J.

text:
    RISHWORTH et ux. v. MOSS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    May 28, 1913.
    On Motion for Rehearing, June 25, 1913.)
    Physicians and Surgeons (§ 15) — Operation on Children — Authority.
    A child 11 years of age was taken by her adult sister to a surgeon, who without the knowledge of the child’s parents, who could easily have been communicated with, permitted the surgeon to anaesthetize the child for the removal of adenoids. There was no emergency, nor was the life of the child dependent on the operation, and during the performance thereof the child died. Held, that the child had no authority to consent to the performance of the operation on its own behalf, and the sister’s authority to authorize such operation depended on whether the parents’ authority had been delegated to her; and, in the absence of any evidence to that effect, the performance of the operation by the physician was unlawful, so as to warrant recovery for the death of the child, independent of the question of negligence in the performance of the operation.
    [Ed. Note. — For other cases,- see Physicians and Surgeons, Cent. Dig. § 32; Dec. Dig. § 15.]
    Appeal from District Court, Bexar County; A. W. Seeligson, Judge.
    Action by W. H. Rishworth and wife against Robert E. Moss and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    H. C. Carter and Perry J. Lewis, both of San Antonio, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   FLY, C. J.

Appellants filed a suit against Robert E. Moss and L. R. Beck, alleging that an operation was performed by appellees on their 11 year old daughter, Imogen, for “excessive growth in and on each side of her mouth to the rear and at or near the pharynx,” which is known as adenoid growth of the tonsils, that appellants had not requested, said operation, and knew nothing of it until informed that their child had died on the operating table, and it was further alleged: “That no person whomsoever had any authority to permit defendants to perform any operation whatever upon their child, and plaintiff and his wife had no knowledge whatever that any such operation was contemplated by any one, especially by defendants, or would take place at any time.” Negligence was also charged in the manner of the operation. The appellees answered by general and special demurrers and general denial. Judgment was for appellees.

The evidence tended to show that the operation was undertaken afc the instance and request of an adult sister of the deceased child, and that she was present when chloroform was administered and the operation performed by appellees. Tbe child never recovered consciousness after being anaes-thetized. It was not alleged or, proved by ap-pellees that appellants, or either of them, had any knowledge of the operation until after the death of the child, or that they, or either of them, consented to or authorized the operation. Under that state of facts the court instructed the jury: “If you believe from the evidence that the daughter of the plaintiff took the child to Dr. Moss for the purpose of being operated upon, and you believe that the defendants in good faith performed the operation with ordinary care, your verdict must be for the defendants, and this, too, notwithstanding there was no consent from the parent that the operation should be performed.”

No briefs for appellants have been filed in this court, and the judgment must be affirmed unless there is fundamental error in the charge herein copied. Under the peculiar facts of this case, in which it is not-contended that there was any great emergency, and that the life of the child was dependent upon an operation before the parents could be communicated with, if appellees were guilty of a tort in operating upon an infant without the knowledge or consent of her parents, the charge of the court went to the very foundation of the action, and deprived appellants of their right of trial by jury. That charge placed the liability of appellees on the same basis that it would have been if appellants had been present and consenting to the operation; that is, on the basis of negligence in the operation. That declaration of the law by the court struck at the very foundation of one of the issues presented by the pleadings, and in effect stated to the jury that the consent of the parents was not required if the minor was taken to the physicians by the daughter of appellants. In other words, the consent of the daughter to the operation was as effective as that of the parents, although they had never lodged any such authority in the daughter, and the operation was. performed without their knowledge or consent. It that the law? We are of the opinion that it is not.

If the adult daughter had gone with the child to a dry goods store in the city of San Antonio and had purchased a bill of goods, no one would contend that her father would be liable for the bill, in the absence of authority from him to purchase the goods. If she had signed his name to a promissory note, he would not be liable in the absence of authority given to her to execute the note. In any kind of transaction involving property the daughter could not bind her parents, unless she acted under and by authority from them, either express or implied. The right of the child to bind the parent depends, not upon any principle peculiar to the relation of parent and child, but upon principles appertaining to the law of agency. The relationship can be used only in drawing the inference of agency upon slighter facts than as to other parties not so related. Tiffany, Per. & Dom. Rel. § 119. It follows that if the adult daughter in this instance had any authority to employ a physician to operate on her minor sister, she had that authority, not by reason of her relationship to the child or the parents, but by virtue of an agency, express or implied, from her parents, or at least one of them. Her authority must be viewed in the light of the rules and principles of the law of agency, rather than those rules connected with and arising out of domestic relations. It is not claimed that the daughter had been authorized to employ physicians, and the cause was not submitted to the jury on any such theory, but it was submitted on the broad proposition that the fact that the minor was taken to the physicians by an elder sister authorized the physicians to operate on the infant without the consent of the parents. Upon that theory, while the elder daughter could not bind her parents as to property transactions, she could bind them in matters in which the future happiness, yea the very life and limbs of their infant children, were concerned.

In the case of Bakker v. Welsh, 144 Mich. 632, 108 N. W. 94, 7 B. R. A. (N. S.) 612, 8 Ann. Cas. 195, a boy 17 years old, in company with two sisters and an aunt, consulted a physician as to a tumor on his ear. He then returned to his father’s farm and after-wards went to the doctor in company with his sister, and an ansesthetic was administered, and he died before the operation was performed. His father sued for damages; one ground being want of consent of the father. A verdict was instructed for the defendant, and the Supreme Court of Michigan affirmed the judgment on the ground that “there is nothing in the record to indicate that, if the consent of the father had been asked, it would not have been freely given. There is nothing in the record to indicate to the doctors, before entering upon the operation, that the father did not approve of his son’s going with his aunt and adult sisters, and consulting a physician as to his ailment and following his advice.” The decision of the court is entirely unsatisfactory, and without valid reason for its rendition. The facts were such as to call for the intervention of jury, and should have been decided by the jury upon the facts. However, the facts in that case show that after consultation with the doctors the boy went back to his country home, presumably to consult with his father, and by a stretch of imagination the doctors might have concluded that the father was willing that the operation should be performed.

In the case of Mohr v. Williams, 95 Minn. 261, 104 N. W. 12, 1 D. R. A. (N. S.) 439, 111 Am. St. Rep. 462, 5 Ann. Cas. 303, a surgeon operated on the left ear of the patient, a woman, when she had requested an operation on the right ear. She had never felt anything wrong about the left ear. The Supreme Court of Minnesota held: “As remarked in Jaggard on Torts, 437, every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary under the general doctrine of privilege; and any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery. In the case at bar, as we have already seen, the question whether defendant’s act in performing the operation upon plaintiff was authorized was a question for the jury to determine. If it was unauthorized, then it was, within what we-have said, unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful.”

All of the eases proceed upon the theory that before an operation can be lawfully performed, it must he preceded by the consent of the person capable of consent, or of the person empowered to consent to such operation upon the person of one incapable of giving consent. In the ease of Luka v. Lowrie, 171 Mich. 122, 136 N. W. 1106, 41 L. R. A. (N. S.) 290, a much later case than Bakker v. Welsh, herein cited, the Michigan court, while justifying the operation upon the ground of emergency, recognized the necessi-. ty of obtaining the consent of the parents in order to justify an operation upon an infant.

In the case of Pratt v. Davis, 224 Ill. 300, 79 N. E. 562, 7 L. R. A. (N. S.) 609, 8 Ann. Cas. 197, an epileptic married woman had an operation performed on her, at the instance of her husband, and then went home. After-wards, in company with her brother-in-law, she returned to the sanitarium, and the doctor performed another operation ■ on her. She did not improve, but became insane. Suit was instituted to recover damages on the ground that the operation was performed without the consent of the woman. The evidence indicated that the woman was incapable of consenting to the operation, and that her husband did not consent, and the court affirmed a judgment for $3,000 in favor of the plaintiff.

The law, as enunciated by the few courts which have passed thereon, is not as clear and satisfactory as it should be in cases of this character, but it seems to be reasonably established that a physician is liable for operating upon a patient unless he obtains the consent of the patient, if competent, and if not,. of some one, who under the circumstances would be legally authorized to give the ■ requisite consent. Of course consent may be presumed from circumstances, without direct proof, but there must be consent in every case, except in an emergency when to delay to obtain consent would endanger the life or health of the patient. A child of tender years being incapable of legally consenting to the administration of an anaesthetic and a surgical operation, consent must be obtained from the person clothed with authority to consent by the law, which would be the parent or guardian, in case there be such person. Under the circumstances of this ease, the sister, whether adult or otherwise, would have no more authority by virtue of such relationship than would any other person, and it was fundamental error upon the part of the court to instruct the jury that the presence of the elder sister, as a matter of law, justified the physicians in performing the operation. The parents were easily accessible by telephone or telegraph, and there was no emergency.

The question of consent of the parents was one of fact to be submitted to the jury, and the issue as to the skill and care that was exercised was one to be submitted in the alternative if consent was given. In the absence of consent to the operation the utmost skill and care in its performance would, not justify the operation.

The effect of the charge was to withdraw one phase of the case entirely from the jury, and to preclude recovery except upon the basis of proof of a negligent operation. If errpr at all, which we think it is undoubtedly, it is a prominent error, fundamental in character, and determining a question upon which the right of the case depends. Harris v. Petty, 66 Tex. 514, 1 S. W. 525; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518. The error was one of law, and was fundamental in its character; and, although no brief is filed in this case by appellants, ap-pellees have filed a paper denominated a brief, seeking an affirmance of the judgment, which has devolved upon this court a search for fundamental error.

The judgment is reversed, and the cause-remanded.

On Motion for Rehearing.

Without attempting to enter into a discussion of what is fundamental error, we think it “clear, manifest to the understanding, plain, evident, obvious, appearing to the eye or mind,” that it is error to instruct a jury that a minor child, 11 years of age, can be operated upon by a surgeon, without the consent of the parents, if the child was taken to the surgeon’s office by an adult sister. The charge does not place immunity for the-physician on the ground of consent of the child itself, nor on the emergency of the occasion, but merely on the proposition that “the daughter of the plaintiff took the child to Dr. Moss for the purpose of being operated upon.” We hold that such an instruction is absolutely and fundamentally wrong. Such an error can be considered by an appellate court in the absence of a brief. The-■charge was assigned as error, although ap-pellees state that this court held that it would be considered, “even though not assigned as error.” The charge as given is not the law in any case, no matter what the facts might be, and this court rendered its ■decision on the broad proposition that the mere fact that á child of tender years is taken to a surgeon’s office by an elder sister, without the consent of the parents of the c^iild, will not justify an operation upon the child. We did not hold that the charge was •erroneous, as stated by appellees, because “a .minor, by reason of his minority, has no right to give his consent for needed medical ■attention, and that without having the consent of the parent.” No such points are pre-sented in the charge of the court.

We do not wish it understood, however, that this court has intimated an indorsement ■of the proposition that an infant of tender .years is given by law any authority or power ■to judge of the necessity of having a .dangerous operation performed upon its body without the consent of its parents. An operation performed upon an infant in case of an emergency, without the consent of the parents, cannot be justified on the ground of the consent of such infant, but upon the ground of the emergency. The physician in the case of an emergency, where the life of the infant is at stake, is justified in performing an operation without the consent of parent or guardian. not on the ground that the infant can •contract for necessaries, but upon the ground that the emergency exists, and the question ■of emergency would be one of fact to be ■considered by a jury. If, however, it could be held that an infant could contract for a •surgical operation, on the ground that it was necessary, it would always be a question of fact as to whether it was necessary, and that the parent or guardian had refused to have it done. The law does not give the girl un■der 15 the power to consent to the use of her person, and it would seem to be a dangerous proposition to authorize children of the age ■of the dead child to decide whether an operation is necessary, in defiance of the consent •of its parents. As before stated, however, the question of the operation being necessary, • or with the consent of the infant, was not an issue in the case. The charge exonerated the ■surgeon from all blame on the ground alone .that the infant went to his office in the company of a sister. Upon that issue alone it must be tested.

Appellees give a synopsis of the pleadings and state: “That the general denial put in .issue all of the allegations of plaintiffs’ petition cannot be denied, and therefore the •fact of plaintiffs giving their consent or of .authorizing any one to have the operation .performed was clearly put in issue.” That is undoubtedly true, but the court ignored the issue and instructed the jury, as a matter of law, that if the sister took the child to the office of appellees, the verdict must be in favor of the latter “notwithstanding there was no consent from the parents that the operation could be performed.” In that ■proposition lies the fundamental error, because it goes to the very foundation of the action. The pleadings did not justify any such charge, but it was directly .in the face of the issues raised therein. The consent of no one was required by the charge, neither the parents, the child, or the nurse, and yet this court is' asked to consider the pleadings, and not the evidence, and then presume that the charge is correct. It could not be under the issues made by the pleadings. When the facts are consulted the error is merely, intensified. There is not one word in the charge as to the mature daughter acting as the agent of the parents, and no' such issue was raised by the pleadings.

The case cited by appellees (State v. Housekeeper, 70 Md. 162, 16 Atl. 382, 2 L. R. A. 587, 14 Am. St. Rep. 340) was one in which an operation was performed upon a married woman for cancer of the breast, and the husband sued for damages because the operation for cancer was without his consent, although he had consented to an operation for tumor. He was present and assisted in preparing for the operation. The consent of the wife to the operation was deemed sufficient on the ground of pressing necessity. The court said: “Surely the law does not authorize the husband to say to his wife: ‘You shall die of the cancer; you cannot be cured, and a surgical operation, affording only temporary relief, will result in useless expense.’ The husband had no power to withhold from his wife the medical assistance which her case might require.” A married woman’s power over her person cannot be 'classed with that of an infant of tender years over her person; but, even in the case of a married woman, it appears from that ease there must be an emergency, and a failure upon the part of the husband to respond to the call of the emergency. Under article 4624, R. S. 1911, the wife is given authority to contract for necessaries furnished herself or children, and for all expenses incurred for the benefit of her separate property. The infant has no such statutory authority.

Undoubedly “if the evidence had shown that the daughter was intrusted with the care and custody of the child, with instructions to use her best judgment in doing what was necessary for the child’s health and benefit,” the charge would not have been “directly responsive to the pleadings and the evidence.” It is not pleaded that the elder daughter had “the care and custody of the child, with instructions to use her best judgment in doing what was necessary for the child’s health and benefit,” and the cause was not submitted upon any such theory. Such allegation, if supported by evidence, might have made the sister an agent of the parents, whose consent to the operation might have been their consent, but the question of agency of the sister and consent of the parents was brushed aside by the charge, and justification of the physicians was rested on the naked fact that the child was taken to the office by the sister. To speculate upon the theory that the charge might have been directly responsive to the evidence would be no more justifiable than to imagine that the child had no operation performed upon it at all and was still living.

Appellees object to the court stating that the operation was performed at the instance and request of the sister, and the court might, with propriety, withdraw that statement, confine itself to the pleadings, and state that the sister was merely present when the operation, was performed.

It was alleged in the petition “that no person whosoever had any authority to permit defendants to perform any operation whatever upon their child, and plaintiff nor his wife had any knowledge whatever that any such operation was contemplated by any one, especially by defendants, or would take place at any time.” No such issue was presented to the jury.

The motion is overruled.