author: HENDRICKS, J.

text:
    REEYES v. FUQUA.
    (No. 937.)

    (Court of Civil Appeals of Texas. Amarillo.
    March 8, 1916.
    On Motion for Rehearing, April 6, 1916.)
    1. Courts <&wkey;36 — Jurisdiction — Probate Court.
    Probate courts are courts of general jurisdiction as to all matters within the scope of their powers, and all presumptions will be indulged as to their jurisdiction over such matters the same as in favor of the jurisdiction of any other court of record.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 142-144; Dec. Dig. &wkey;36J
    2. Judgement <&wkey;6 — Attack.
    Where a domestic judgment is attacked, it is necessary, in order to ascertain the rules applicable, to determine whether it was rendered by a court of general jurisdiction over the subject-matter, whether the attack is direct or collateral, whether the evidence is apparent on the face of the record, and, if not, whether outside evidence is competent, and whether the ground of the attack is one which goes to the power of the court or is a matter of procedure.
    [Ed. Note. — For other cases, see Judgment, Dee. Dig. &wkey;j5.]
    3. Executors and Administrators <&wkey;13— Appointment — Validity—Adjournment op Court.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3218, requiring all orders of the county court in probate matters to be rendered in open court and at a regular term, the fact that an order appointing a permanent administratrix was entered after the court had adjourned for the day, and without a formal reopening of the court, does not invalidate the appointment, especially as against attack in proceedings to sell property under a trust deed to satisfy a claim allowed against the estate on the approval of the administratrix.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 26; Dee. Dig. <&wkey;>13.j
    4. Executors and Administrators <&wkey;234— Allowance op Claims — Approval by Ad-ministratrix.
    Where the probate court allowed claims against the estate on the approval of a duly appointed permanent administratrix, the allowance was valid, though the same claims had been previously allowed on approval by the same parson as temporary administratrix under a void appointment, and the same verification of claim was presented to the permanent administratrix as to her as temporary administratrix.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 832-836%, 842, 842% ; Dee. Dig. &wkey;>234.]
    On Motion for Rehearing.
    5. Executors and Administrators <&wkey;234— Allowance op Claims' — Record.
    A record of claims allowed against an estate which showed an itemized list of the claims allowed to a certain creditor during, the temporary administration under a void appointment, followed by an entry showing an allowance of the total amount of those claims during the permanent administration, sufficiently shows that the claims were allowed during the valid permanent administration.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 832-836%, 842, 842% ; Dec. Dig. &wkey;234.]
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    Action by W. H., Fuqua against Mrs. Minnie Reeves, as administratrix, to foreclose a deed of trust. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    See, also, 183 S. W. 34.
    W. W. Kirk, R. M. Ellerd, and Mathes & Williams, all of Plainview, and Speer & Brown, of Ft. Worth, for appellant. Graham & Graham, of Plainview, and W. H. Kim-brough and Madden, Trulove, Ryburn & Pip-kin, all of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

On November 7, 1914, the appellee, W. H. Fuqua, filed his petition in the county court of Hale county, Tex., against Minnie Reeves, as administratrix of the estate of Oscar Reeves, seeking the enforcement and foreclosure, through the medium of the administratrix, of a deed of trust and the application of the proceeds of sale to certain indebtedness alleged to have been approved by the administratrix and allowed by the probate court in a permanent, as well as a temporary, administration of said estate.

Mrs. Reeves, for herself, and as “next friend” of her minor children, attempted to resist appellee’s petition by virtue of allegations attacking the appointment of Mrs. Reeves as temporary administratrix, the approval of appellee’s claim by her in such capacity, and the allowance by the court during said temporary administration, likewise attacking the appointment of Mrs. Reeves as permanent administratrix, and the approval by her as such, and the further allowance by the county court of said claims. The counts'' court sustained general and special exceptions to the answer, and upon appeal the district court likewise sustained exceptions to an amended answer. We do not doubt but what appellant’s resistance to the enforcement of appellee’s petition is a collateral attack. The object of plaintiff’s petition is to obtain a sale of the land on account of the administration and the allowance of said claims as a judgment; and defendant, in resisting the character of relief prayed for by appellee, by alleging that the two appointments of Mrs. Reeves as administratrix are void, and that the allowance and approval of the claims during both administrations are null, could not be considered as making a direct attack.

“If an appeal is taken from a judgment or a writ of error, or if a motion is made to vacate or set it aside on account of some alleged irregularity, the attack is obviously direct; the sole object of the proceeding being to deny and disapprove the apparent validity of the judgment. But if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important, or even necessary to its success, then the attack upon the judgment is collateral and falls within the rule.” Black on Judgments, vol. 1, § 252.

The rule so clearly enunciated above in different language is, in substance, announced by the Supreme Court in the case of Crawford v. McDonald, 88 Tex. 630, 33 S. W. 325. In that cause a probate order of confirmation of the sale of property could not be attacked by aliunde evidence that the sale was not, in fact, made at the courthouse door, as required by law. A bond of a survivor in community is required to equal the appraised value of the community estate; a bond approved for less than the appraised value is not valid nor the qualification of the administrator void on collateral attack. Jordan v. Imthurn, 51 Tex. 287. If the record on collateral attack is silent as to the bond, it will be presumed the administrator gave one. Moody v. Butler, 63 Tex. 212. It has been the law of this state since 10 Tex. 467 (Moore v. Hardison), that an approval by an administrator of a claim barred by the statute of limitation does not bind the estate, but, once approved by the county court, “the quasi judgment so created can be treated as a nullity.” Howard v. Johnson, 69 Tex. 657, 7 S. W. 523. Such a judgment has to be set aside in a direct proceeding brought solely for that purpose, showing that the bar was complete when approved, and even then it is not sufficient to show that the claim is barred on its face, but it must be shown that no fact nor exception existed suspending the statute. Howard v. Johnson, supra, and authorities cited. The fraudulent representations of the holder of a barred claim inducing the allowance of the same will not change the rule. Eecles v. Daniels, 16 Tex. 136Martin v. Robinson, 67 Tex. 3.81, 3 S. W. 550. Since the acts of 1876 the approval of a claim by the county couft has the force of a final judgment (Vernon’s Sayles’ Civil Statutes, art. 3452), subject, of course, to be revised on appeal. Same article.

It is, of course, the settled law of this state that probate courts, under the Constitution, are courts of general jurisdiction as to all matters within the scope of the power conferred upon them. Weems v. Masterson, 80 Tex. 45, 15 S. W. 590. It also follows that all presumptions will be indulged as to the jurisdiction of probate courts over subject-matter confided to them the same as in favor of the jurisdiction of any other court of record. Their judgments and decrees cannot be collaterally attacked unless the record shows the want of jurisdiction where the subject-matter comes within that power.

“In the absence of such a showing, it must be presumed that the jurisdiction exercised in a given case was the exercise of lawful power.” Same case supra.

It is alleged that the order of the county judge appointing Mrs. Beeves temporary ad-ministratrix of the estate never became effective, because the order was not made under the seal of the court nor attested by the clerk thereof, and that the clerk of the court did not indorse on the order by certificate that the same had been recorded as directed by law, and because said order appointing her temporary administratrix clothed her with full power of a permanent administrator of the estate of a deceased person, instead of limited powers as by law directed. The order of the county judge appointing Mrs. Beeves temporary administratrix was also objected to because it did not appear to be under the seal of the court, nor attested by the clerk, and fails to show that the latter ever entered his certificate upon the original order of appointment as required by law, and because it gives to the temporary administratrix all the authority which could be given by the court to a permanent administrator. The original order bore no seal of the county court and was not attested by the clerk of the court, and bore no certificate of the clerk of that county showing that same had ever been recorded in the probate minutes of Hale county.

Article 3297 provides that:

“Whenever it may appear to th§ county judge that the interest of an estate requires the immediate appointment of an administrator, he shall, either in open court or in vacation, by writing under his hand and the seal of the court, attested by the clerk, appoint some suitable person-temporary administrator with such limited powers as the circumstances of the case may require.”

Article 3298 prescribes that:

The appointment “shall define the powers conferred, and befoi'e being delivered to the person appointed shall be recorded in the minutes of the court, and the clerk shall indorse thereon a certificate that it . has been so recorded, and until such record and certificate are made such appointment shall not take effect.”

In the case of Alexander v. Barfield, 6 Tex. 401, 402, where the Chief Justice of the county, without any particular specification or definition of the powers conferred, broadly empowered the temporary administrator “to transact all business as administrator of said estate, until one may be appointed,” Justice Lipscomb held that:

“The court below could not regard the pro tern, appointment of administrator as of any validity, and could only treat the same as a nullity.”

There were other reasons which evidently actuated Justice Lipscomb in holding the appointment void, for he said:

“The requisitions of the law have not been regarded in scarcely a single essential particular” as to the particular appointment.

It is true he stresses the plenary authorization of power.

It is noted that appellant’s answer is a broad allegation that the temporary adminis-tratrix was clothed by the appointment with “full power of a permanent or regular administrator of the estate of the deceased person, under the laws and statutes of Texas, instead of limited powers as by law directed.” The actual order of appointment enumerates several specifications of power. However, the order closes with an attempted delegation of the general power of a permanent administrator.

If the case of Alexander v. Barfield, supra, has the effect contended, it may be doubted if it were applicable and could control this ease. That case merely shows an order which attempted to confer general powers; while the statute says the order “shall define the powers conferred.” Here there are several specifications of power defining the powers conferred, and the broad, general power might be considered as mere surplus-age. Article 3298, prescribing that the order of appointment shall be recorded, and that the “clerk shall indorse thereon a certificate that it has been so recorded, and until such record and certificate are made such appointment shall not take effect,” construed by appellant as mandatory, and that the prerequisites are necessary to make the appointment effective, and void if absent, has this force. Articles 3439 and 3441 prescribe the character of authentication of claims for allowance or approval. Article 3442 prescribes:

“If any such claim is allowed or approved without such affidavit as is required by the preceding articles of this chapter, such allowance or approval shall be of no force or effect.”

The San Antonio court held, in the case of Lanier v. Taylor, 41 S. W. 516, that a claim with an affidavit which was not signed by the claimant was a nullity. The Supreme Court, in the case of Anderson v. Cochran, 93 Tex. 583, 57 S. W. 29, used language to the same effect.' It is true that in those cases the claims were rejected, and were never merged into a quasi judgment in the probate proceedings. Justice Williams, in the case of Nelson v. Bridge, 98 Tex. 533, 86 S. W. 7, specifically said, however, though the point was not necessary to the decision of that case, that an allowance by the court of a claim without affidavit is prohibited and will be void and of no effect.

Notwithstanding all this, so insistently urged by appellant, we do not think it is necessary to decide the questions presented as to the temporary administration, on account of the fact of a permanent administration over the same estate.

The petitioner, Fuqua, alleges a regular appointment of Mrs. Reeves as the permanent administratrix, the presentation to, and approval by her, of the notes as such ad-ministratrix, and an order of allowance by the county court of the claim. The only two features in connection with the permanent administration alleged by the appellant we think necessary to discuss resisting the enforcement of the deed of trust are as follows:

Paragraph 6: “Respondent denies that part of paragraph 2 of plaintiff’s petition wherein the same alleges that she was appointed regular administratrix of said estate on the 16th day of July, 1909, and says that, if such order to that effect was made on that date, same was not made in open court, as directed by law, but was made after court adjourned for that date, and for that reason such order was void,” and all her acts thereafter are nullities.
Paragraph 11: It is alleged that the “approval of said claim by the probate court of said county on July 16, 1909 (during the permanent administration), was an act and an approval by said court of said claim connected with and based upon her alleged allowance of same on June 2, 1909, during said purported temporary administration,” etc.

“Where a domestic judgment is sought to be impeached, in order to determine the rules of law governing the particular proceeding, it becomes necessary to consider: (1) Whether such judgment was rendered by a court of general jurisdiction over the subject-matter of the suit or proceeding which same was rendered; * * * (3) whether the attack is direct or collateral; (4) whether the evidence adduced to support the attack is apparent on the face of the record of the proceedings in which said suit was rendered, and,-if not, whether evidence aliunde is competent; and (5) whether the ground of the complaint is one which, if true, goes to the power of the court to render the judgment, or is a mere matter of procedure.” Crawford v. McDonald, 88 Tex. 630, 33 S. W. 327.

We assume the rule to be that every presumption will be indulged on collateral attack to support the action of a probate court having general jurisdiction over the estates of decedents in appointing an administrator in the absence of any facts showing a want of jurisdiction. State v. Zanco’s Heirs, 18 Tex. Civ. App. 127, 44 S. W. 527; Templeton v. Ferguson, 89 Tex. 47, 33 S. W. 329; Chapman v. Brite, 4 Tex. Civ. App. 506, 23 S. W. 514.

The allegations of appellant to the effect that her appointment as permanent administratrix was not made in open court, but was made after f'eourt adjourned for that date,” constitute a collateral attack upon the order of appointment. This does not mean, of course, that court had adjourned for the term, but had merely “adjourned for that date.” The probate court had the jurisdiction to make the appointment, and we are entitled to assume from the allegations in the answer that the order of appointment imports verity that the court was acting judicially within its scope and power. Just what is meant that the order was not made in open court is a little hard to construe for this reason: There is no doubt but that courts often adjourn for the day and indulge in loose practice of making orders without formally going to the bench, without literally opening the court, according to the practice governing such matters. To hold that administrations were void upon collateral attack on account of orders informally made, but made, however, apparently judicially, by the county judge, within his jurisdiction, without a formal reopening of court, and not strictly in open court, as understood according to the course of procedure, would, no doubt, disrupt many administrations and invalidate many sales of property. Unless the question is severely and in reality jurisdictional, the rule of judicial verity, unless a direct attack is made, is based upon tlie public policy of preventing sucbi results.

Justice Denman, in tbe case of Crawford v. McDonald, 88 Tex. 631, 33 S. W. 328, after discussing the character of judgments void on account of lack of jurisdiction, says:

“There is, however, another rule of law equally well settled upon principles of public policy which precludes inquiry by evidence aliunde the record in a collateral attack upon a judgment of a domestic court of general jurisdiction regular on its face into any fact which the court rendering such judgment must have passed upon in proceeding to its rendition.”

We have been unable to find, after rather diligent search, any decision directly affecting the particular question.

We have a statute (article 3218) which prescribes that all decisions, orders, decrees, and judgments of the county court in probate matters shall be rendered in open court and at a regular term of such court for civil and probate business, unless in cases where it is otherwise specially provided.

Article 3219 prescribes that such decisions, orders, and judgments shall be entered on the record of the court during the term at which the same are rendered, and any such “decision, order, decree or judgment, shall be a nullity unless entered of record.” This latter article, declaring judgments and orders a nullity unless entered of record, has been several times construed (Blackwood v. Blackwood, 92 Tex. 478, 49 S. W. 1045; De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16; Kelsey v. Trisler, 32 Tex. Civ. App. 177, 74 S. W. 64), and, if not so entered, are void (same cases). It is noted, however, that neither article — that is, 3218 nor 3219 — prescribes that, if an order or judgment is not rendered in open court, the same shall be void. Of course, the commandment in article 3218 requiring the judgment or order to be rendered at a regular term of the court, if violated, might render a probate judgment a nullity. However, this is a mere declaration of the common law upon the subject. Black on Judgments, vol. 1, § 179. It is jurisdictional, affecting the power of the court. If an order is entered after a probate court is formally adjourned, without a formal reopening, we are unable to construe that such an act could be considered void, at least in this character of proceeding.

In the case of Templeton v. Ferguson, supra, the validity of the administration was attacked on the ground that the record showed that there were no debts due from the estate. The record, however, did not negative the existence of the facts authorizing the court to make the particular order, and the law, said Justice Denman, conclusively presumes that such facts were established by the evidence before the court when the judgment was rendered; the record being silent as to the existence of debts. Justice Bonner said that the question must be tried by the recitals in the record, and, if it does not affirmatively appear that jurisdiction is lacking, “upon grounds of public policy, the record purports absolute verity and is conclusive.” Murchison v. White, 54 Tex. 78.

The case of Nelson v. Bridge, 98 Tex. 523, 86 S. W. 7 (cited by appellees as one of strong application to this case), in construing the mandatory language of the statute that letters testamentary shall not be issued where a will is probated after the lapse of four years from the death of the testator, is based upon the consideration of several statutes construed in pari materia, and wherein it is asserted that the Legislature, by the particular article, did not intend mandatory force, and the probate void, because other statutes showed to the contrary.

The assertion that the alleged approval of the claim by the probate court during the permanent administration was based upon the approval of the same claim by the court in the temporary administration, and was therefore void, is equally inefficient in this proceeding. The allegations of the whole answer, when considered, show that the court in reality judicially approved Fuqua’s claims during the permanent administration. In their very nature such allegations are vague, and one is puzzled what the pleader means on the face of the averments. If the court judicially approved the claim during the permanent administration, unless in some manner it could be said that it was based upon the acts of the temporary administrator as a precedent condition, or as an accompanying prerequisite validity, when the court approved the claim under the statute cited (article 3452), in its very nature the order approving the claims had the force and effect of a final judgment. When we revert to the record actually introduced, we can understand what the pleader means. The same authentication presented to Mrs. Reeves, as the temporary administratrix, as verification of the particular claims, was used and presented to her as permanent administratrix, with reference to the same claim, but, however, shown to have been approved in conformity with the statute by her as such permanent administratrix.

We believe it is wholly unnecessary to go into the question of other alleged irregularities in reality affecting matters of procedure only, but not addressed to the jurisdiction of the court, and also questions of alleged fraud, for the reason that in this character of proceeding it is apparent that the orders during the permanent administration could not possibly be affected. We likewise think the questions of evidence raised by bills of exceptions are wholly immaterial.

The judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant’s counsel, in the presentation of an able motion for rehearing, have shaken

the opinion of this court on the question of collateral attack, citing the following authorities: Heath v. Layne, 62 Tex. 687; Fortson v. Alford, 62 Tex. 578; Edwards y. Halbert, 64 Tex. 667; Alford v. Halbert, 74 Tex. 846, 12 S. W. 75; Ruenbuhl v. Heffron, 38 S. W. 1030; Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Cruger v. McCracken, 87 Tex. 586, 30 S. W. 537.

On the question of the approval by the probate court of Fuqua’s claims during the permanent administration it is contended that this record does not show that the probate court rendered judgment or an order approving said claim, and that the same was entered of record as prescribed by article 1853 of the Revised Statutes of 1895. The statute provides:

“All such decisions, orders, decrees and judgments shall be entered on the records of the court, * * * and any such decision, order, decree or judgment shall be a nullity unless entered of record.”

Appellant says:

“This entry on the record must be found on the minutes of the probate court or upon the claim docket. The question is: Has appellee proven by an entry on said record, that is, on either the minutes of the court or the claim docket, an order, judgment, or decree of the court approving or adjudicating said claim?”

The claim docket presented in this record bearing upon this question presents during the temporary administration all the different claims of appellee involved in this suit, showing the amount, the date of claim, when due, and the date when the interest begins, the rate of interest, and the allowance of same. The first claim presented on said page is the one for $45,832.66 that is exhibited as a part of the records of the temporary administration. Opposite this item is the following, evidently exhibiting an action upon the claim docket during the permanent administration :

On page 43 of the statement of facts we find the following:

“Plaintiff introduced all these reports and orders from the probate minutes as showing the dealings of respondent, Mrs. Reeves, as ad-ministratrix, and the probate court of Hale county, with the different claims, the use of the property for the payment of claims, and the claims, that were recognized and approved by her, as follows:
“ ‘No. 99. In re Estate of Oscar T. Reeves, Deceased. In the County Court - of Hale County, Texas, July Term, 1909.
“ ‘Now comes Mrs. Miinnie Reeves, adminis-tratrix of said estate, and shows to the court that she has on hands about $20,000, most of which is available for paying off the claims against said estate, and that the money is lying idle in bank; that one claim for a large amount, about $90,000, has been proved up and allowed against the estate in favor of W. H. Fuqua; that there are a few, if any, other claims to be presented against said estate, and they will not be for large amounts. She therefore prays that she may be authorized to pay on said Fuqua claim such sums from time to time as she may deem proper.
“ ‘Madden, Trulove & Kimbrough and E. Graham, Attorneys for Mrs. Minnie Reeves, Admx.
“ ‘No. 99. In re Estate of Oscar T. Reeves, Deceased. In the County Court of Hale County, Texas, July 23, 1909.
“ ‘On this day came on the application of the administratrix for authority to make payments on the claims of W. H. Fuqua, and it appearing to the court that said Fuqua has proved up his claim for a large amount, that there are probably few other claims to be presented against said estate, that the administratrix has in her hands idle in bank about $20,000 and the court being in all things satisfied it is ordered that the administratrix of this estate be authorized to make such payments on said Fuqua claim from time to time as she may deem proper.’ ”

If the order of the court approving the claim is sufficiently shown upon the record, as we now view the controversy, it is immaterial whether the resistance to the enforcement of the deed of trust is a direct or collateral attack. The notation upon the claim docket of the approval July 16, 1909, of an amount approved, to wit, $92,190.97, we are prone to consider, especially if permitted to take it in connection with what is shown upon the docket during the temporary administration as an order of approval of a claim to that amount. The pleading says that to base it upon the memoranda during the temporary administration makes it void, because the temporary administration is a nullity. This argument is specious, in this: If you once assume that the memorandum last quoted was made on the claim docket during the permanent administration, the court evidently intended to approve a claim or claims amounting to $92,190.97. If the claims on the same page of the docket are of that amount, or approximately so as to make a discrepancy immaterial, it is evident that the probate judge intended to approve those claims during the permanent administration, and the question is not what he based the same upon, but whether there was an actual order of allowance. We think this, taken in connection with the last order quoted, is sufficient to show an order of allowance by the probate court entered of record within the purview of the statute as that the judgment is valid, and not void; it is only the order characterized a nullity, if not of record. Other matters in connection therewith are sufficiently proven.

The motion for rehearing is overruled.
      ig^sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    DOWDY v. SOUTHERN TRACTION CO.

    (No. 7461.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 26, 1916.
    Rehearing Denied April 1, 1916.)
    1. Carriers <@=>314(2) — Actions — Negligence-Pleading — Specific Acts.
    A pleading in a passenger’s action for injuries that “as the proximate result of negligence, carelessness and recklessness of defendant in building, erection and maintenance of the road” it was necessary for plaintiff to alight and walk some miles in the rain, contracting illness of serious character, is one of specific acts of negligence, and not general.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. § 1275%; Dec. Dig. <@=>314(2); Negligence, Cent. Dig. § 182.]
    2. Negligence <@=>119(4) — Pleading —Specific Acts — Burden of Proof.
    Where specific acts of negligence are relied upon, the plaintiff has the burden of proving such specific acts.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 208; Dec. Dig. <@=>119(4).]
    3. Carriers <@=>315(3) — Injuries to Passengers — Actions—Negligence.
    Where the passenger alleged specific acts of negligence and failed to prove them, he could not invoke in his behalf the maxim “res ipsa loquitur,” based on the happening of an accident, but he was required to prove the specific-negligence alleged.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1281; Dec. Dig. <S=>315(3).]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by J. H. Dowdy against the Southern Traction Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Thos. 8. Plowman, of Talladega, Ala., and Parks & Hall, of Dallas, for appellant. Templeton, Beall & Williams, of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellant sued appellee for damages for personal injuries charged to have been the result of the negligent acts of appellee’s servants. There was a jury trial, resulting in a verdict and judgment for ap-pellee, to review which this appeal is prosecuted.

Appellant advances, under appropriate assignments, several propositions as grounds for reversal. For counter proposition to all issues so raised by appellant, appellee asserts that appellant having alleged in his petition that his injuries were caused by certain specific acts of negligence on the part of ap-pellee, it was necessary, in order for him to recover at all, to prove the negligence alleged; that he failed to do so, and, as a consequence, all other issues are immaterial, and the case should be affirmed.

In connection with the issue thus raised it appears from appellant’s petition that on December 2, 1914, he was a passenger upon ap-pellee’s car en route from Dallas to Waco. The negligence of appellee, after appellant became a passenger and which it is alleged resulted in injury to appellant, is disclosed by the following paragraph from his petition:

“That while the plaintiff was en route as a passenger upon the defendant’s car as aforesaid and when he reached a point as a passenger thereon, at a distance of about to wit, four miles from the said town of Hillsboro as the said passenger car advanced toward the said town of Hillsboro, the said ear as the proximate result of the negligence, carelessness and recklessness of the defendant in the matter of the building, erection and maintenance of its track, roadbed and bridges and the careless and negligent operation of the said car [it] came to a stop at a bridge upon the defendant’s line of railroad, the bridge, track and construction being insufficient and out of repair, and the front end of the said' ear tilted downward and the back end thereof tilted upward to a great angle and the bridge and construction work and the dumps and other general construction of the track, having given way to such an extent that it became extremely dangerous to the life of the plaintiff and other passengers similarly situated, to remain thereon.”

Following the pleading quoted, were allegations showing that due to the dangerous situation of the ear it was necessary for appellant to disembark in the dark in a downpour of rain and walk therein to the town of Hillsboro four miles distant, and as a result of which he was injured in his health by the enforced exposure to the cold and rain. Upon trial and hearing upon the issue we are discussing, appellant and others testified that when the car reached a point about four miles from Hillsboro where the track bridges a ravine and as it was running upon the bridge the forward end of the car sank downward, and the rear end tilted up, due to the washout of the embankments, to an angle of about 45 degrees, where it remained fixed; and that while the car was in a dangerous position all passengers disembarked safely. There was no proof whatever concerning the cause or reason for the track and embankment giving way or to what it was attributable. The allegations of negligence copied about is all the pleading in that respect, and, as stated, no evidence was introduced in support of the same. Accordingly, the inquiry is: Does the petition allege ' specific acts of negligence, and, if so, was it necessary for appellee to prove same in order to recover at all? We answer both inquiries affirmatively.

A careful examination of the petition narrating appellee’s negligence will disclose a general charge of negligence as well as a charge that the injury resulted from specific acts of negligence. It is alleged generally that the injuries proximately resulted from “the negligence, carelessness and recklessness” of appellee in the “building, erection and maintenance of its track, roadbed and bridges.” Following such general allegations is the specific charge that appellant’s injuries resulted from “the careless and negligent operation of the said ear,” together with the further allegation that the car was- caused to tilt and appellant, as a consequence, compelled to alight therefrom and subjected to the injuries detailed because of “the bridge, track and construction being insufficient and out of repair.” In short, the specific acts of negligence were averred to be the careless and negligent operation of the car, the insufficient construction of the track and bridge, and the fact that it was out of repair. These allegations speak for themselves, and to assert that they charge specific acts of negligence is but to accord to the language used its ordinary significance. And the rule is that where specific acts of negligence are relied upon, it is incumbent upon the plaintiff, in assuming as he does the burden cast by law, to prove the acts as alleged. The rule is fundamentally correct and uniformly enforced.

Appellant in effect concedes as much, but seeks to avoid the application of the rule in the instant case on the ground that the evidence discloses presumptive negligence as comprehended within the maxim res ipso loquitur. Conceding for the purpose of the discussion, but not determining the question, that proof of the mishap which necessitated appellant leaving the car was res ipsa loqui-tur, in the absence of explanation by those in management of the appellee, the precise question has nevertheless been decided adversely to appellant’s contention. M., K. & T. Ry. Co. of Tex. v. Thomas, 132 S. W. 974. In the case cited the court quotes approvingly from Gibler v. Quincy, etc., Ry. Co., 148 Mo. App. 475, 128 S. W. 791, that:

“The rule permitting a presumption of negligence to suffice for plaintiff proceeds on the theory that it is easily within the means of defendant to show there was no dereliction on his part, if such be the fact, while the plaintiff would labor under a great disadvantage if the burden to show the particular acts of negligence continued with him. * * * But when the petition contains a general allegation of negligence, and proceeds to aver specific matters of fact as to the manner in which the mishap occurred, the specific averments are preferred and take precedence over the general allegation as to the same subject-matter, and plaintiff is. therefore required to prove the specific allegations of fact as laid.”

If appellant had alleged that appellee was negligent in permitting the car to run upon the bridge in the manner it did, and as a consequence he was compelled to disembark therefrom and as a result of such enforced disembarkation he was exposed to the inclement weather and injured as alleged, and that he was unable to prove the particular-act or omission which brought about the result, the rule could have been invoked and it would have been for the jury, under appropriate instructions by the trial court, to determine whether from all the circumstances,, the fact itself bespoke negligence. Having chosen, however, to allege the specific acts and omissions that brought about his injuries, appellant was compelled to prove them, and, having failed to do so, the case should not have been submitted to the jury.

Because of the conclusion reached on the issue we have just discussed, the other issues raised by the brief of appellant have not been considered, and we are not to be understood as having disposed of them in any respect.

The judgment is affirmed.
      <g^»For other cases see same'topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: MOURSUND, J.

text:
    RIEDEN v. BROTHERHOOD OF RAILROAD TRAINMEN et al.
    (No. 5615.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 8, 1916.
    Rehearing Denied April 5,
    Insurance <&wkey;790 — Benefit Certificate-Right of Recovery.
    Under the constitution of a brotherhood providing that a member receiving any of enumerated injuries shall be considered totally and permanently disabled and entitled to receive the amount of his beneficiary certificate, and that any other claim for disability is addressed to the benevolence of the brotherhood, and shall not constitute the basis of any legal liability of the brotherhood, but shall be referred to the beneficiary board, and, if approved by it, the member shall be paid the amount of his certificate, a member whose claim for total disability of another nature than enumerated is rejected by such board has no right of recovery.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1960; Dec. Dig. <&wkey;>790.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Frank G. Rieden against the Brotherhood of Railroad Trainmen and others. From an adverse judgment, plaintiff appeals.’
    Affirmed.
    Geo. Powell, of San Antonio, for appellant.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

This is a suit by Frank

G. Rieden, seeking to set aside a judgment of dismissal entered in a suit by him against the Brotherhood of Railroad Trainmen. The facts relied upon to excuse the failure of Rieden to file a motion for new trial after the cause was dismissed are fully set out, and are sufficient, and need not be here mentioned, It will also be unnecessary to state the allegations in detail which relate to the merits of the cause of action. The petition discloses that Rieden was a member in good standing of a subordinate lodge of the Brotherhood of Railroad Trainmen, and held a beneficiary certificate entitling him to recover $1,350 in case of plaintiff’s death or his total permanent disability; that he was injured by being struck on the head by a moving freight train; that his skull was fractured, and he is and was totally and permanently disabled from working on the railroad in train service; that he presented his claim as provided by sections 70 and 71 of the constitution of defendant, but his claim was rejected; that his claim, with full proof of his total permanent disability as railroad trainman, was, as required by the constitution of defendant, submitted for decision to the Beneficiary Board of defendant, composed of the Grand Master, Assistant Grand Mas-' ter, Grand Secretary, and Grand Treasurer of said Supreme Lodge, whose duty it was to decide as to the sufficiency of said proofs, and said Beneficiary Board willfully and fraudulently rejected and disallowed his claim, and falsely and fraudulently reported that plaintiff had not proven his permanent disability; that, as is required by section 70 of said constitution, the Grand Secretary and Treasurer reported the disapproval of such claim to the Board of Insurance- at its next annual meeting, and said board fraudulently and willfully refused to allow such claim. The certificate contained the following provision:

"This certificate is issued on the express condition that the said Frank G. Rieden shall comply with the Oonstitution, by-laws, rules, and regulations now in force, or which may hereafter be adopted by the within-named Brotherhood, which are printed and published by the Grand Lodge of the said Brotherhood and made a part hereof, and that he pay all dues and assessments imposed upon him within the time specified by the Oonstitution and by-laws.”

The following provisions of the constitution and general rules of the Grand Lodge are disclosed by plaintiff's petition:

“Sec. 68. Any beneficiary member in good standing, who shall suffer the amputation or severance of an entire hand at or above the wrist joint, or who shall suffer the amputation or severance of entire foot at or above the ankle joint, or who shall suffer the complete and permanent loss of sight of both eyes, shall be considered totally and permanently disabled, and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, to the full amount of his beneficiary certificate, but not otherwise.
“Sec. 69. Proofs of total and permanent disability shall be made as follows: The secretary of the lodge of which the brother is a member and the member shall promptly make statement in writing of such disability on the form prescribed and under the seal of the lodge, which statement shall also be signed by the Master Financier. Thei’e shall also be made, signed and sworn to by attending physician, a statement setting forth the nature and extent of the injury and all proofs, including the beneficiary certificate of the member and his receipts for all dues and assessments for the month in which he was injured, shall be forwarded to the Grand Secretary and Treasurer, and if the same are found to be regular and satisfactory by him, the claim shall be assessed for and paid in its regular order, but if the Grand Secretary and Treasurer shall for any reason disallow or reject said claim, it shall be referred to the Beneficiary Board, who may allow or disallow the claim. If allowed, it shall be assessed for and paid in its regular order. If disallowed by the Beneficiary Board, the claimant may appeal to the Board of Insurance, which may allow or disallow the claim, and its decision shall be finál. If allowed, it shall be assessed for and paid in its regular order. If the claimant is at a distance from the lodge, the examining physician shall be appointed by the Grand Secretary and Treasurer or Grand Master. Any claimant shall be required at the option of the Grand Master, and as a condition precedent to the right of recovery upon his certificate, to submit himself to examination by one or more reputable physicians or surgeons to be selected by the Grand Master, and the fee of the physician, or surgeon, making such examination shall be borne by the Grand Lodge.
“Sec. 70. All claims for disability not coming within the provision of section 68 shall be held to be addressed to the systematic benevolence of the Brotherhood and shall in no case be made the basis of any legal liability on the part of the Brotherhood. Every such claim shall be referred to the Beneficiary Board, composed of the Grand Master, Assistant Grand Master, and Grand Secretary and Treasurer, who shall prescribe the character and decide as to the sufficiency of the proofs to be furnished by the claimant, and if approved by said board, the claimant shall be paid an amount equal to the full amount of the certificate held by him, and such payment shall be considered a surrender and cancellation of such certificate, provided that the approval of said board shall be required as a condition precedent to the right of any such claimant to benefits hereunder, and it is agreed that this section may be pleaded in bar of any suit or action at law, or in equity, which may be commenced in any court to enforce the payment of any such claims. No appeal shall be allowed from the action of said board in any case; but the Grand Secretary and Treasurer shall report all disapproved claims made under this section to the Board of Insurance at its next annual meeting for such disposition as such Board of Insurance shall deem just and proper.
“Sec. 71. A brother desiring to present a claim under section 70 shall make application to his lodge in writing, accompanying which must be a certificate from a regular practicing physician or surgeon showing the condition of the brother and on which the claim is to be based. If approved by the lodge, the secretary shall forthwith forward them with notice of such approval to the Grand Secretary and Treasurer, who will at once forward to the lodge the necessary blanks and instructions for presenting a claim.”

Plaintiff further alleged that certain stipulations in section 70 of the constitution are arbitrary and void, namely, the provision that the rejection of a claim by the Beneficiary Board and Board of Insurance is final, and also the one to the effect that such section 70 may be pleaded in bar of any suit or action at law or in equity which may he commenced in any court to enforce the payment of any such claims. A general demurrer was sustained to the petition.

The question to be decided, as presented by the briefs, is whether under said section 70 Rieden is entitled to recover for total disability of the kind suffered by him. In section 68 the disabilities classed as permanent are defined, and plaintiff’s injuries are not such as to bring him within any of those therein set out. In very plain language the contract provides for the payment of a certain sum in the event of the insured’s death, or in the event of his suffering any one of the disabilities named in section 68 and therein classified as permanent disabilities. If he suffers other injuries than those named therein, although of equally permanent character and disabling him to an equal extent as one therein named, such injuries are not covered by said section, and no recovery can be had therefor. Brotherhood of R. R. Trainmen v. Walsh, 89 Ohio St. 15, 103 N. E. 759. There is no provision for payment on account of injuries other than those described in section 68, unless it can be deduced from section 70. That section provides that all claims for disability not coming within the provisions of said section 68 shall be held to be addressed to the systematic benevolence of the Brotherhood, and shall in no case be made the basis of any legal liability on the part of the Brotherhood. This language, taken in connection with the remainder of the section, strongly indicates that the intention was that under no circumstances should a claim not falling within those described "in section 68 even become the basis for a cause Of action against the Brotherhood; that, even if allowed by the board, it would still address itself merely to the benevolence of the order. However, if it be conceded that the language employed in the subsequent part of the section, when construed most strongly against the Brotherhood, can be said to give the beneficiary a legal right, provided the Beneficiary Board allow the claim, still appellant cannot recover; for he fails to show that such legal right ever came into existence. The contract does not give a cause of action in one provision and undertake to deprive the beneficiary of it in another by providing that no appeal shall be made to the courts, as was the case in Lewis v. Brotherhood Accident Go., 194 Mass. 1, 79 N. E. 802, 17 L. R. A. (N. S.) 714. There is no undertaking to pay for permanent disabilities such as appellant alleged, unless it is stated in the provision that such payment will be made if the Beneficiary Board decides in favor thereof. No duty was imposed by the contract upon the board to allow any such claim. The claim was of a purely benevolent nature. Can it be said that it is contrary to public policy to contract that a benevolent claim will only be paid if allowed by a certain board? Certainly not. But, if it could be held to be contrary to public policy, under what provision would appellant be entitled to recover? Can the courts change the contract so as to make it read that members are entitled to recover for all permanent disabilities, whether mentioned in section 68 or not, leaving the question to be determined by a jury in each case whether the disabilities are permanent? There is nothing in the contract which evidences qn intention to so provide, nor from which appellant could contend that he was even led to believe that such was his contract. Such a liability was evidently not contemplated by the Brotherhood, and hence not provided for in fixing assessments. The courts cannot make a contract for the parties. They can hold that contractual rights cannot be taken away by any system of arbitration whereby one of the parties to the contract does the arbitrating, but they cannot hold that the contract gives rights which it expressly negatives.

As was said in the case of Pool v. Brotherhood of Railroad Trainmen, 143 Cal. 650, 77 Pac. 661:

“This is not a case of an arbitrary adjudication of the officers of a benevolent association, declaring a forfeiture of property or of vested rights. It is simply the rejection of a claim that the lodge might in its charity have allowed, but it was agreed that such claim should be in the discretion of the lodge and not the basis of legal liability. Plaintiff may have been unfor-tmate in becoming a member of a brotherhood that is not benevolent, but the court cannot undo his -actions in this regard.”

In support of title conclusion that appellant is not entitled to recover, we also cite the following cases: Eighmy v. Brotherhood of R. R. Trainmen, 113 Iowa, 681, 83 N. W. 1051; Sanderson v. Brotherhood of R. R. Trainmen, 204 Pa. 182, 53 Atl. 767.

The judgment is affirmed.
      ÉjsjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LONE STAR INS. UNION v. BRANNAN.

    (No. 5558.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    On Motion for Rehearing, April 5, 1916.)
    1. Insueancb <@=>755(2) — Life Insurance — Waiver or Forfeiture — Powers oe Ofet-esRS — Materiality.
    Whether the local agent of an insurance company was authorized to waive the forfeiture provisions of the policy is immaterial, where the jury found that the general manager waived such conditions.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1908; Dec. Dig. <§==>755(2).]
    On Motion for Rehearing.
    2. Appeal and Error <@=>1070(2) — Fundamental Error — ‘Reversal.
    Where the judgment may be sufficiently supported by three unassailed special findings of the jury, a fourth finding, though it might be erroneous, is not fundamental error .and does not require reversal.
    [Ed. Note. — For other eases, .see Appeal and Error, Cent. Dig. §§ 4232, 4233; Dee. Dig. <@=> 1070(2).)
    3. Insurance <@=>755(1) — Life Insurance — Forfeiture — Estoppel.
    Where the policy or benefit certificate provides for termination on failure to pay premiums or dues, without affirmative act of the insurer, conduct of the insurer misleading the insured to his expense or harm may estop the insurer from asserting forfeiture.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1907; Dec. Dig. <@=>755(1).]
    4. Insurance <@=>755(1) — Life Insurance — Forfeiture — Estoppei^-Evldence.
    Where the insurer’s general manager sent duplicate notices of delinquency and treated deceased as a member until five days after her death although she failed to pay, and he failed to furnish blanks for reinstatement, as required by the policy, or to instruct the local agent as to procedure against delinquents, a strong case of estoppel to plead forfeiture was made out,' though the forfeiture provisions may have been self-executing.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1907; Dec. Dig. <@=>755(1).]
    Appeal from District Court, Bexar County; 5. G. Tayloe, Judge.
    Action by Robert Brannan against the Lone Star Insurance Union. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marcus W. Davis and Geo. M. Mayer, both of San Antonio, for appellant. C. A. Keller, of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSUND, J.

Robert Brannan sued appellant upon an insurance policy for $1,000, issued to his deceased wife, Marguerite Bran-nan, alleging that she had in all respects complied with the conditions and provisions of same, and that due notice of her death had been given, and in the alternative, if it should be found that Mrs. Brannan had not complied with the conditions and provisions of the policy, that such noncompliance was waived by appellant; the acts relied upon as •showing waiver being fully pleaded. Appellant put in issue all the material allegations of the petition, and specially pleaded that Mrs. Brannan had not paid assessment No. 103, due by her, within the time prescribed by its constitution anil by-laws, and therefore she had forfeited her membership and her policy, and specially denied that it had waived any provisions of the constitution or bylaws.

The case was submitted upon special issues, which, with their answers, are as follows:

“Question No. 1. Was the course of dealing on the part of the defendant with the insured, Marguerite Brannan, with respect to the payment of the assessment on account of the policy sued upon, such as were reasonably calculated to, and did actually, induce the said Marguerite Brannan to believe that the strict performance of the terms of the policy with regard to the prompt payment of assessments would not be insisted upon or required by the defendant, and that payment of delinquent premiums would be received by the defendant within a reasonable time after default and with the understanding between said parties that the contract would not, on such account, lapse or become forfeited? Answer: ‘Yes.’
“Question No. 2. If you answer the foregoing question, ‘Yes,’ then, was the failure to pay, prior to her death, the premium on said policy, induced and caused by such prior course of dealing, if any, which may have existed between said parties (if any such course of dealing did exist)? Answer: ‘Yes.’
“Question No. 3. Considering such course of conduct, if any, was the tender, shown by the evidence to have been made by the plaintiff to Joe Murray, made within a reasonable time after the notice of assessment for which such tender was made? Answer: ‘Yes.’
“Question No. 4. The policy of insurance sued upon contains the following provision: ‘Should a suspended member personally appear and apply for reinstatement within three months from the date of his suspension, and pay all arrear-ages, if in good health, he shall be restored to membership and his policy again become valid as soon as said payment shall have been received and recorded by the clerk of his division.’ Were the delinquent payments which the evidence shows to have been paid by or for the insured and received by Joe Murray received by said Murray (a) as payment of original assessments without reference to the clause above quoted, or (b) were such payments received by Joe Murray for the purpose of reinstatement under the stipulations in said policy, above quoted? Answer: Delinquent payments paid by or for plaintiff were received by Joe Murray (a) as payment of original assessments without reference to the clause quoted.
“Question No. 5. In case you have found, in answer to the preceding question, that said delinquent payments were received by Joe Murray as original payments and not under the authority of the provisions of the policy quoted' in the preceding question, then, you will answer whether or not Worth Duncan, general manager of the defendant, knew that said Murray was so receiving sucii payments (if you find he did so receive the same). Answer: ‘He did.’ ”

Judgment was entered upon the verdict for plaintiff for $1,131.16.

Appellant does not question the sufficiency of the evidence to sustain the findings of the jury, but by two assignments presents the sole contention that the evidence shows that Joe Murray was merely its local collector without power to waive any of the provisions or conditions contained in the policy. This proposition may be conceded to be correct, and was doubtless conceded by the trial court, for an issue was submitted whether the general manager of appellant knew of Murray’s transactions with regard to receiving payment of delinquent assessments. This issue was decided against appellant, and the finding is not attacked. As the' general manager knew of and permitted the business to be conducted by Murray in the manner relied upon as waiving the provisions of the policy, it appears that the question of Murray’s authority is not material.

No other question having been raised, the judgment is affirmed.

On Motion for Rehearing.

As stated in our former opinion, there are no assignments which specifically attack any of the findings of the jury as being without evidence to support them.

The first assignment complains of the action of the court in refusing the motion of ■defendant to peremptorily instruct the jury to return a verdict for defendant, the reason stated being that the undisputed evidence showed that the local secretary and collector of defendant was appointed for the convenience of the members only, and had no power to waive any of the provisions or conditions contained in the policy. No reason was given in the motion for a peremptory instruction as to why defendant considered itself entitled to such action by the court.

The second assignment complains that the verdict and judgment are contrary to the law and the evidence, because the authority of the local collector is limited by the contract, with notice of which the insured and beneficiary were charged.

The issues submitted are copied in our former opinion. No objection was made to the submission of any of the same, and the trial court was therefore not apprised until the motion for new trial was filed, of the reasons relied upon by defendant. Those reasons are set out in the two assignments of error, which, in order to justify us in considering them, have been held to be substantial copies of the paragraphs of the motion for new trial. Appellant has conceived the idea that this court is of the opinion that the entire judgment must rest upon the truth of the finding that Duncan, the general manager, knew of the method in which the local collector transacted business. It therefore contends, on motion for rehearing, that the evidence is insufficient to support the fifth finding, and that this is a fundamental error. It is not apparent to us that the judgment cannot be sustained upon the first three findings of the jury. In fact, in order to determine whether or not it can be sustained thereon, we would be required to read all of the evidence. The error, therefore, if error there be, in the answer to the fifth finding, cannot be said to be one going to the foundation of the ease. Aside from that, the question whether such answer is supported by the evidence is purely a question of fact, the examination of which requires a careful study and weighing of all the evidence. We conclude that under the authority of the following cases we should hold that no question of fundamental error is presented: Houston Oil Co. v. Kimball, 103 Tex. 95, 122 S. W. 533, 124 S. W. 85; M., K. & T. Ry, v. Maxwell, 104 Tex. 632, 143 S. W. 1147; Oar v. Davis, 105 Tex. 479, 151 S. W. 795.

We believe, however, that, were we authorized to go into the questions argued by appellant, we would not be justified in holding the evidence insufficient to support the verdict and judgment. As we understand the cases, there can be no doubt that, even where the contract or benefit certificate is such that failure to pay premiums or dues within the designated time terminates it without affirmative action on the part of the insurer, there may be an.estoppel by reason of conduct on the part of the insurer misleading the insured to his expense or harm.

In the case, of Hawkins v. Lone Star Ins. Union, 146 S. W. 1041, the same contract as is herein sued upon was construed and the provision relating to forfeiture of membership for nonpayment of assessments held to be self-executing. The decision of such question was perhaps not necessary, as the evidence showed that a letter had been sent to the insured which showed that it would be necessary for her to be reinstated, thus showing that a forfeiture had actually been entered. A very similar provision was held not self-executing in the case of Northwestern Traveling Men’s Ass’n v. Sehauss, 148 Ill. 304, 35 N. E. 747.

The evidence discloses a very strong case of the general manager of the company construing the provision in regard to forfeiture of membership as not self-executing, for he invariably sent second notices just like the first notice, and, although Mrs. Bran-nan was often delinquent, he never notified her she had forfeited membership, but always treated her as still a member, and in fact, indorsed on the proof of death the words, “Lapsed 10/18,” showing that she was treated as a member until five days after her death. But if it be conceded that the provision - was self-executing, still the course oí conduct with reference thereto - by the general officers is very pertinent upon the issue of estoppel; for it is well calculated to mislead the insured. In addition, we notice that, while the general manager in a general way seeks to repudiate the acts of Murray, he does not contend that he ever instructed Murray to notify members they were suspended or to use anj»- different method with regard to collection of delinquent assessments than those not delinquent. He furnished no blanks for reinstatements, the receipts were general, and neither such receipts nor the reports to him by Murray contained any statement concerning reinstate-ments.

The motion is overruled.
      <@=^]Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SWEETEN et al. v. TAYLOR et al.
    (No. 5564.)
    (Court, of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    On for Rehearing, April 5, 1916.)
    1. Trespass to Try Title @=>41(1) — Actions —Title from Sovereignty.
    Where plaintiffs introduced a patent to the heirs of one deceased and deeds from certain persons of the same name, but made no showing that such persons were the heirs of deceased, and the deeds did not so recite, they failed to deraign title from the sovereignty.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. @= 41(1).]
    2. Trespass to Try Title @=41(2) — Title from .Common Source — Proof of.
    Where plaintiffs' claimed under deeds of trust executed by G. and another, while defendants claimed title from G., but their chain did not show the interest of any other person, plaintiffs did not establish the claim of title from a common source; there being no proof of the interest which either of their grantors had.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. @=41(2).]
    3. Adverse Possession @=82 — Running of Statute — Possession.
    Where after conveyance of one-half of the premises the grantee went into possession holding the entire premises for the benefit of himself and his grantor, but failed to record his deed, there can be no reliance on the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 468^471; Dec. Dig. @= 82.]
    4. Adverse Possession @=82 — Running of Statute — Claim under Color of Title.
    Where there was a delay of over three months in recording a deed, the grantee’s possession was not under color of title within the five-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 468-471; Dec. Dig. @= 82.]
    5. Limitation of Actions @=85(5) — Running of Statute — Absence from State.
    Under Rev. St. 1911, art. 5702, declaring that, if any person against whom there shall be a cause of action shall be without the limits of the state at the time of the accruing of such action or at any time during which it might have been maintained, such absence shall not be taken as a part of the time limited, time when defendant was without the state must be deducted in determining where plaintiff’s action was barred by the five-year statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 453; Dec. Dig. @= 85(5).]
    6. Trespass to Try Title @=41(1) — Actions —Judgment.
    Mere evidence of prior possession without proof of title from the sovereignty or that the parties claimed under a common source will not warrant judgment for plaintiffs.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. @=41(1).]
    7. Appeal and Error @=870 — Necessity of Appealing.
    A judgment against several will not be disturbed as regards those defendants who did not appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3581-3583; Dec. Dig. @= 879.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Action by Mrs. Mollie Taylor and husband against Charles Sweeten, C. W. MeFadden, and others. From a judgment for plaintiffs, the named defendants appeal.
    Reversed and remanded as to them; affirmed as to defendants not appealing.
    Love & Ellis, of Uvalde, for appellants. W. O. Linden, of San Antonio, for appellees.
   MOURSUND, J.

On February 23, 1911, Mrs. Mollie Taylor, joined by her husband, J. S. Taylor, sued G. W. Chant, C. Kruger, Charles Sweeten, D. C. Enloe, L. S. Friday, and W. J. Barker in trespass to try title, seeking to recover survey No. 236 and 210 acres out of survey No. 235, both originally granted to E. B. Franklin, and situated in Edwards county. On June 9,1913, an amended petition was filed in which W. T. Gardner was made a party defendant and G. W. Chant was omitted. On June 9, 1914, by second amended original petition, C. W. Me-Fadden was also made a defendant. The suit was filed in the district court of Edwards county, and was transferred to the district court of Uvalde county. No citation was issued to Sweeten, and no effort made to obtain service upon him, nor any answer filed by him until the April term, 1915, of the district court of Uvalde county. Defendant Enloe was never served with citation, and did not answer. Kruger disclaimed as to all the land sued for. Friday and Barker alleged that before the suit was filed they had sold and conveyed said "lands. Gardner alleged that he had purchased a part of the land on or about July 16, 1910, and had conveyed the same to MeFadden on March 27, 1913. He pleaded, however, the three, five, and ten year statutes of limitation in bar of plaintiffs’ suit. MeFadden answered on March 20, 1915, and alleged the ownership by him of 195 acres out of the east end of said survey No. 236 and a part of survey No. 235. He further alleged that he had purchased such lands on March 27, 1913; that his deed was duly recorded on April 17, 1913; and that he had not been made a party defendant until June 9,1914. He also pleaded the three, five, and ten year statutes of limitation. Sweeten disclaimed as to all except 80 acres out of survey 236, and as to said 80 acres he answered by plea of not guilty and pleas of limitation under the three, five, and ten year statutes.

Judgment was rendered by the court in favor of plaintiffs against Sweeten and McFadden for the portions of survey No. 236 respectively claimed by them and against Friday, Barter, and Gardner for all lands sued for out of survey 236; that plaintiff take nothing by her suit as to any portion of survey 235; that the suit be dismissed as to Enloe, Kruger and Chant. No findings of fact and conclusions of law were filed.

Plaintiffs introduced in evidence the patent to the heirs of Elijah B. Franklin granting survey No. 236, containing 640 acres. They introduced a copy of a power of attorney to Thos. J. Franklin from certain parties, which recited that Elijah B. Franklin was their brother; copy of power of attorney by' the same parties, through Thos. J. Franklin, as attorney in fact, and Thos. J. Franklin for himself, to Robert A. Gillespie; copy .of a deed by said parties to Wm. F. Gillespie conveying a one half interest in all lands owned by Elijah B. Franklin in Texas, which recites that R. A. Gillespie is to have the other half for locating such lands; copy of deed from W. F. Gillespie and M. A. Gillespie to James H. Gillespie for an undivided half interest in said lands; copy of deed from W. F. Gillespie to Mollie A. Taylor for all of survey No. 236. This deed is dated, March 9, 1889, and was filed for record on April 8, 1889. All of these instruments were admitted over the objection of defendants, and the court afterwards concluded that they should not be considered, and that plaintiffs had failed to show title from the sovereignty of the, soil. This conclusion was correct. Even if it were conceded that the recitals constitute evidence of the facts stated, such facts fail to show that the grantors were the heirs of Elijah B. Franklin.

Appellants contend that plaintiffs failed to show common source. For the purpose of showing common source plaintiffs introduced in evidence a deed of. trust, dated March. 25, 1897, by W. F. Gillespie and Charles J. Gillespie to J. H. McLeary, trustee, to secure a note in favor of Mrs. Abigail E. Gillespie for $1,700, conveying said survey 236 and 193 acres out of survey 235; also probate proceedings in the estate of Abigail E. Gillespie, including the appointment of the ancillary administrator; the appointment by the ancillary administrator of a substitute trustee; deed from the substitute trustee to the administrator; deed from the administrator to ,W. I>. Sutherland. Defendants introduced in evidence the same instruments, and also deeds showing that defendants Me-Fadden and Sweeten deraign title from said W. D. Sutherland to the portions of survey No. 236 claimed by them.

The deed of trust, as well as the evidence, fails to show what interest in survey No. 236 was claimed by Chas. Gillespie and what interest therein was claimed by W. F. Gillespie at the time of the execution of the deed of trust. They conveyed, “among other lands, 640 acres, the B. B. Franklin survey No. 236, and 193 acres out of the E. B. Franklin survey No. 235.” Appellants’ contention is that, as the evidence shows that plaintiffs deraign title from W. F. Gillespie, while appellants deraign title from W. F. Gillespie and Chas. Gillespie, such evidence fails to show common source. The leading cases on the question involved are the following: Howard v. Masterson, 77 Tex. 41, 13 S. W. 635; Hendricks v. Huffmeyer, 90 Tex. 577, 40 S. W. 1; Gilmer v. Beauchamp, 40 Tex. Civ. App. 125, 87 S. W. 907 (in which a writ of error was refused). The opinions in the two Supreme Court cases were written by Chief Justice Gaines, and in the second he states what principle was decided in the first, and apparently was of the opinion that common source cannot be shown by plaintiff by the introduction in evidence of a deed by his grantor and another person under which defendant deraigns title, unless the deed itself discloses what interest each of the two grantors undertook to convey. However, by denying a writ in the last-cited • case the Supreme Court appears to have approved the holding that, though the interest conveyed by each of two grantors be not shown in their deed it will be sufficient if it is otherwise proven what interest they owned at the time of the conveyance. In that case the evidence showed that the two grantors held under the same title, each claiming a half interest, and the presumption was apparently held justified that each undertook to convey a half interest, and that the grantee by accepting the deed admitted that he claimed title to half under each of them. In this case the parties conveyed several tracts of land, and there is no evidence as to any previous claim of ownership to any of them by Chas. Gillespie, so it is impossible to charge defendants with any admission that they claimed a certain interest under W. F. Gillespie and the remainder under Chas. Gillespie. The evidence shows that D. W. Gillespie executed to Chas. Gillespie as trustee a deed of trust on part of survey 235 to secure Mrs. Abigail Gillespie in the payment of $1,000, and that Mrs. Mollie Taylor and husband executed to W. F. Gillespie as trustee a deed of trust on survey No. 236 and part of 235 to secure Mrs. Abigail Gillespie in the payment of a note for $1,400, and the deed of trust from W. F. Gillespie and Chas.

Gillespie to MeLeary, under which defendants deraign title, contains the following clause:

“It is expressly understood that the acceptance of this conveyance in trust is a release of any and all claims upon the said lands included therein by virtue of certain trust deeds heretofore executed by D. W. Gillespie and M. A. Taylor and J. Taylor, her husband, to Chas. J. Gillespie, trustee, to secure Abigail IS. Gillespie, which said trust deeds are of record in Edwards county, Tex., and that the same or any part thereof shall be hereafter held subject only to the provisions of this trust, and upon faithful compliance with the terms and provisions of this trust the said lands shall be released to the said W. IP. Gillespie, or his heirs or assigns, free from any claim or incumbrance created by the aforesaid trust deeds of D. W. Gillespie and M. A. Taylor and J. M. Taylor.”

It is impossible to tell whether W. F. Gillespie and Ohas. Gillespie claimed to have acquired the lands and to have assumed the payment of a balance of $1,700 due Mrs. Abigail Gillespie, or whether it was thought the correct thing in renewing the deeds of trust to have the trustees execute the new one. No mention is made of Chas. Gillespie in any of the record evidence introduced, except in the two instances above mentioned. We hold that the court was not authorized to find that plaintiffs had shown the extent to which defendants claimed title under a common source, and therefore plaintiffs could not rely upon common source to recover any part of the land.

Defendants in support of their plea of limitation under the five-year statute introduced in evidence a deed from W. W. Thread-gill and wife to W. J. Barker, dated October 1, 1908, to an undivided half interest in the 195-acre tract in controversy, which deed was acknowledged on December 24, 1908, but was not recorded until August 19, 1909. Threadgill went into possession of the land under deed from Sutherland to Threadgill and Brady dated October 12, 1904, acknowledged October 17, 1904, and filed for record August 15, 1905; on June 24, 1907, Brady conveyed to Threadgill his half interest in all of survey 236 not theretofore sold by them. Threadgill lived on the land until he sold to Barker. When Barker bought the half interest he lived on the land “a while.” Thread-gill and wife conveyed their remaining half interest to Friday by deed dated June 15, 1909, filed for record July 27, 1909. Friday and Barker conveyed to Gardner by deed dated July 16, 1910, and filed for record October 22, 1910. Appellants contend the court erred in holding that the failure to record the Barker deed until August 19,1909, constituted a fatal break in the period of limitation under the five-year statute. They say that, as Threadgill’s .deed was recorded, and he owned a half interest and Barker the other half interest, Barker’s possession was sufficient without recording his deed. The cases of Myers v. Frey, 102 Tex. 527, 119 S. W. 1142; and Terrell v. Martin, 64 Tex. 121; are relied upon. These eases hold;

“If one who claims property under a. title to himself and another takes possession’ of the whole of the property for himself and for his cotenant, holding the same adversely to every other person for the period of time required by law, such possession will inure to the benefit of the cotenant not in actual possession and bar any recovery against such cotenant out of possession the same as against him who is in possession.”

If Barker held possession for Threadgill, such holding would be sufficient as to Thread-gill’s half interest, but we fail to see how Barker could be construed as holding his half interest under a deed duly registered when, in fact, he held it under a deed not registered at all during the time in question. The rule announced in the cited cases has no application to the question raised in this case. We notice that appellants assume that the evidence shows that Barker stayed in possession until he sold to Gardner, but the only testimony we find is that of Threadgill to the effect that Barker “lived there for a while.” This does not make proof that he was in possession until he sold to Gardner, a period, of nearly two years.

By the sixth assignment complaint is made of the ruling that there was a break in the period of limitation because the deed from Friday and Barker to Gardner was not recorded for three months and six days. This court held in the case of Jacks v. Dillon, 6 Tex. Civ. App. 192, 25 S. W. 645, that one month and eight days between the date of a deed and date of its filing for record was not an unreasonable time, but the deed was executed in' 18S6 in California, and the grantee was described as being of the county of McLean, state of Illinois. In the case of Motley v. Corn (Sup.) 11 S. W. 851, opinion by Commission of Appeals, it was held that limitation under the five-year statute was proven, although the statement of the evidence shows a failure to record one of the deeds for five months, and no evidence is stated which excused such delay. However, the direct point was not raised, so far as is disclosed by the opinion. Objection was made to the charge because it did not state that the possession should be based upon a deed or deeds duly registered. The court held there was no controversy as to the fact that the deeds had been duly registered; that they were necessarily so construed to be by the court when admitted as a basis for the plea of limitation. -The court appears to have taken the view that, no objection having been made in the trial court on the score that the deeds w'ere not duly registered, and no controversy made in the trial court or the appellate court that they were not duly registered, the failure to charge on that feature should be held harmless. We think that a failure to record a deed for three months, under the facts as disclosed by this case, there being no excuse shown for the delay, was unreasonable, and that the trial court did not err in so holding. In this connection we call attention to the fact that the holding of this court upon a similar question in Dunn v. Taylor, 143 S. W. 311, was afterwards held erroneous. Dunn v. Taylor, 147 S. W. 287.

The seventh assignment is overruled for the reasons given in overruling the sixth.

The court did not err in holding that the two years’ residence of Ohas. Sweeten in Oregon should be deducted in estimating the period of his possession. Article 5702, R. S. 1911, has been expressly held applicable to suits for land. Tate v. Waggoner, 149 S. W. 737, and cases cited.

By the ninth and eleventh assignments it is contended that the court erred in rendering judgment for plaintiffs against McFadden and Sweeten for the tracts claimed by them. We have already held that no title from the sovereignty of the soil or from a common source was established. Appellees contend that the evidence of prior possession was sufficient to support the judgment, but there is no merit in the contention. The assignments are sustained.

By the tenth assignment it is contended that McEadden proved title by limitation. This assignment is overruled.

The judgment, in so far as it affects appellants, is reversed, and the cause remanded. There being no appeal by the other defendants, the judgment as to them will not be disturbed.

On Motion for Rehearing.

Appellees sought to show common source' by introducing in evidence the deed of trust from W. E. Gillespie and Chas. J. Gillespie to J. H. McLeary, trustee, which conveyed, “among other lands,” survey No. 236 and 193 acres out of survey No. 235, and was dated March 25, 1897. It is clear, under the decisions cited in our former opinion, that the introduction of said instrument failed to show common source because of the fact that it was executed by two persons, and did not show, nor was there any evidence to show, that W. F. Gillespie alone claimed title to survey No. 236. Appellants introduced in evidence a deed of trust from Mollie A. Taylor and husband to W. F. Gillespie, trustee, to secure a note in favor of Abigail E. Gillespie for §1,400, dated June 20, 1889, conveying all of survey No. 236 and 210 acres out of survey- No. 235, and also a deed of trust from D. W. Gillespie to Chas. J. Gillespie, trustee, to secure a note for §1,000 in favor of Abigail E. Gillespie, dated December 21, 1891, and conveying part of survey No. 235. Appellees contend in their motion for rehearing that the deed of trust by W. F. Gillespie and Chas. Gillespie to McLeary conveyed the same land and was for the purpose of securing the same* debt as the one from Mrs. M. A. Taylor and husband to W. F. Gillespie, trustee. A comparison of the instruments shows that survey 236 is conveyed in each of them, but there is a discrepancy in the acreage out of survey No. 235, and, besides, the one given by W. F. Gillespie and Ohas. Gillespie conveyed other lands, not described in the statement of facts. We fail to see how appellees can assert that the debt is the same, “plus the accrued interest,” for the note for $1,400 was dated June 20, 1889, and that for $1,700 was dated March 25, 1897. It is far more probable that the deed of trust by W. F. and Chas. Gillespie to Mc-Leary was given to secure a renewal of the notes secured by both of the other deeds of trust, for it mentions both and provides that its release shall operate as a release of both of them. But even this is a mere guess, for it is not even shown that the lands conveyed therein are the same as those conveyed in the two former deeds of trust, and, even if they were shown to be the same, it is still impossible to say whether W. F. and Chas. Gillespie undertook to represent the grantors in the former deeds of trust and to renew the same, or whether they acquired the titles of said grantors and gave a note for $1,700, and executed a deed of trust upon such lands or a part thereof, and others, to secure the payment of such note, or whether they acquired some other claim to said lands. We therefore conclude that the evidence fails to show that appellants claim survey No. 236 wholly and entirely by a title acquired through W. F. Gillespie. It is a matter of conjecture whether Chas. Gillespie claimed any interest in survey No. 236, and, if so, what interest. It therefore follows that ap-pellees have failed to show title by common source to survey. 236, and have failed to show such a title to any particular interest therein, for the extent of the interest therein held by appellants under W. F. Gillespie is not made to appear.

We are unable to agree with appellees in their contention that the judgment should be affirmed on the theory that prior possession of survey 236 was shown to have been held by W. F. Gillespie prior to 1889 of such character as to suijport the judgment.

The motion for rehearing is overruled.
      <@=j>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes