author: MOTJRSUND, J.

text:
    WASHINGTON FIRE INS. CO. et al. v. COBB et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 7, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Insurance (§ 286) — Fire Insurance — Warranties — Breach.
    The failure to communicate to the insurance company, upon insuring a sanitarium, the fact that the cook at the sanitarium, because of a personal grievance against the manager, and not because of any hostility to the institution, threatened to burn the sanitarium would not avoid the policy as a concealment of a material fact concerning the subject of the insurance, especially where the trouble between the cook and such manager of the sanitarium did not continue, and he afterwards sold the institution.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 652-655; Dec. Dig. § 286.]
    2. Insurance (§ 665) —Fire Insurance — Concealment op Fact — Sueeiciencv op Evidence.
    Evidence held to sustain a finding that statements as to threats to burn a sanitarium which was insured had not been communicated to the insurer when he applied for a policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    3. Insurance (§ 323) —Fire Insurance — Warranties — Manner oe Occupation.
    A provision in a policy insuring a building occupied as a sanitarium, “while occupied as the Park Terrace Sanitarium,” in absence of provisions qualifying such intent, constituted a warranty that the building would be occupied as a sanitarium during the life of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 764-779; Dec. Dig. § 323.]
    4. Insurance (§ 323) —Eire Insurance — “Occupy.”
    The term “occupied,” as used in a fire policy, implies an actual use by some person according to the purpose for which it is designed, and does not imply that some one shall remain in the building all of the time without interruption, but merely that there shall not be a cessation of occupancy for any considerable length of time.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 764-779; Dee. Dig. § 323.

    For other definitions, see Words and Phrases, vol. 6, pp. 4909, 4910.]
    5. Insurance (§ 323) — Fire Insurance — Occupation op Building.
    A sanitarium which consisted of some 22 rooms and several cottages cannot be said to have been “occupied” during the months proceeding the fire, where during that time there was no attending physician, matron, or servants, and no facilities for heating the building, which then only contained three people, who were not authorized to receive patients or work for them, and who left about 26 hours before the fire, after which the building was in charge of a watchman.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 764-779; Dec. Dig. § 323.]
    6. Insurance (§ 606) — Subrogation of Mortgagee.
    The rights of a lienholder and of the insurance companies under a provision in a fire policy that, whenever the company shall pay the mortgagee for any loss, and claim that no liability existed toward insured, the company should be subrogated to the rights of the party receiving payment, were not affected by the payment of premiums by the mortgagor.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1504-1511, 1514-1516; Dec. Dig. § 606.]
    7. Insurance (§ 606) — Subrogation of Mortgagee.
    Where the parties to a fire policy understood that a provision that, whenever the company paid the “mortgagee” any sum for loss and claimed that, as to the mortgagor or owner, no liability existed, the company should be subrogated to the rights of the party receiving payment as to all collateral securities was intended to cover a mechanic’s lien on the premises, the insurance company, upon paying such lienor’s claim, became subrogated to her rights as against the mortgagor.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1504-1511, 1514-1516; Dec. Dig. § 606.]
    Appeal from District Court, Bexar County ; J. L. Camp, Judge.
    Action by R. S. Cobb against the Washington Fire Insurance Company and others, in which defendants filed a cross-bill im-pleading others. From a judgment for plaintiff, defendant named and others appeal.
    Affirmed as to two impleaded defendants, and reversed and remanded as to the other defendants.
    Templeton, Brooks, Napier & Ogden, of San Antonio, and Crane & Crane, of Dallas, for appellants. A. B. Matlock and Butler L. Knight, both of San Antonio, for appellees.

      For other cases see same topic and sectipn 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

   MOTJRSUND, J.

R. S. Cobb sued the Washington Fire Insurance Company, Spring Garden Insurance Company, Southern National Insurance Company, Scottish Union & National Insurance Company, and J. C. Dam-kin, alleging that Lamkin, on October 11, 1910, executed and delivered to Mrs. W. E. Wright two promissory notes for $1,000 each, due respectively one and two years- after date, given in part payment for and secured by vendor’s lien upon an undivided half interest in certain premises described in the petition and known as Park terrace, which notes were held and owned by plaintiff; that the defendant companies had executed insurance policies upon the improvements upon said premises, which policies were in force when said improvements were destroyed by fire on or about January 24, 1911, the policies being payable to Damkin, but each of them contained a mortgage clause providing for payment to Mrs. Annie Blum as her interest might appear; that the lien held by Mrs. Blum was in the nature of a builder’s and mechanic’s lien executed by W. E. Wright et al. to C. T. Fineham and Beitel Lumber Company on August 6, 1908, and was therefore a prior lien to that of plaintiff; that, after the improvements were destroyed by fire, said companies paid Mrs. Blum her debt, amounting to about $6,000, thereby discharging their own debts and obligations, and each took an assignment or transfer from her of her lien proportionate, to the amount paid by each, and said companies were claiming to be the owners of said mortgage indebtedness, and that the same was a superior lien to that of plaintiff. Plaintiff prayed that he have judgment for his debt, with foreclosure of his lien, and that the mortgage debt paid off by the companies be canceled, and, in the -alternative, that, if the same should not be canceled, then that it be declared a second lien to that of plaintiff.

The insurance companies filed a joint answer, consisting of a general demurrer, a general denial, and a special answer admitting the issuance and payment of the policies as alleged by plaintiff, as well as the destruction of the property by fire on January 24, 1911, but alleging that each policy issued contained a mortgage clause, which provided, in substance, that the insurance should be payable to Mrs. Blum as her interest might appear, and, as to her, should not be invalidated by any act or neglect of the mortgagor or owner of the property, nor by foreclosure proceedings or notice of sale relating to the property, nor by the occupation of the premises for purposes more hazardous than permitted by the policy, and also contained the following clause: “Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally sub-rogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due, or to grow due, on the mortgage, with interest, and shall thereupon receive the full assignment and transfer of the mortgage and of all such other securities; but no sub-rogation shall impair the right of the mortgagee (or trustee) to recover the full amount of her claim.”

Said companies further alleged that said clause was inserted in each policy to secure Mrs. Blum in a first lien on said property, which was a builder’s and mechanic’s lien executed by W. E. Wright and wife and J. L. Hutchinson, and described in plaintiff’s petition; that the indebtedness on August 22, 1911, amounted to $6,868.46, and on that date each company paid its proportional part of the same to Mrs. Blum, the amount paid by each company being set out; that, upon such payment being made, Mrs. Blum assigned such indebtedness and lien to said companies, whereby they became subrogated to the extent of their payments to all rights held by Mrs. Blum under said lien, as provided by the mortgage clause of said policies; that, as to Lamkin, said companies were not liable, because they contracted to insure him against loss to his building by fire while occupied as the Park Terrace Sanitarium, and that the use of such building as a sanitarium ceased prior to the destruction thereof by fire,- and prior to the institution of the suit said companies tendered Lamkin the amounts of premium received by him, but he declined to accept same and surrender the policies as he was bound to do. They also alleged that each policy contained the following provisions: “This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the hazard be increased by any means within the control or knowledge of the insured. If any application, survey, plan or description of property be referred to in this policy, it shall be a part of the contract and a warranty by the insured.”

The breach of such provisions by Lamkin was averred, the allegations being to the effect that prior to and subsequent to the issuance of the policies threats had been made by several persons living near the sanitarium to burn the same, which threats had been communicated to Lamkin, but that Lamkin did not disclose the same to any of said companies, although he knew they would not insure the property or continue the policies in force if they knew of such threats, but, on the contrary, willfully concealed said facts from the companies and their agents; that thereby Lamkin became guilty of concealing and misrepresenting in writing and otherwise a material fact or circumstance concerning the insurance and the subject thereof, and was guilty of fraud with respect to such insurance before and after the loss, rendering the policies null and void; that during the night of the-of January, 1911, an attempt was made to burn up the property, but the fire was extinguished before much damage was done, but Lamkin, though-knowing such attempt had been made, failed to notify the companies thereof, though knowing that they would immediately cancel the policies had they received such notice; that thereby Lamkin became guilty of fraud and concealment of a material fact and circumstance concerning such insurance and the subject thereof, and of fraud with respect thereto, rendering each policy null and void.

By way of further answer and cross-bill, the insurance companies impleaded W. E. Wright and wife, J. L. Hutchinson, R. S. Cobb, J. 0. Lamkin, Roy M. Beitel, and Albert Beitel, alleging that on August 6, 190S, Mrs. Wright and J. L. Hutchinson owned the-five acres described in plaintiff’s petition, the metes and bounds thereof being given, and that they, joined by Mr. Wright, on said-date executed and delivered to O. T. Finch-am seven promissory notes aggregating $7,-925, and, to secure the payment thereof, executed and delivered to him a builder’s and' mechanic’s lien on the said premises; that said notes were indorsed by Fincham to-Beitel Lumber Company, without recourse; that afterwards Beitel Lumber Company indorsed four of the notes to Mrs. Fannie-Blum, guaranteeing the payment thereof, and assigned to her the builder’s and mechanic’s lien; that J. C. Lamkin acquired the property and assumed the payment of the notes, and, in addition, executed to Mrs. Wright the two notes for $1,000 each sued, upon by plaintiff; that thereafter the insurance companies issued their policies to Lam-kin, each of which contained a mortgage clause with loss payable to Mrs. Blum, and on or about January 24, 1911, the building was destroyed by fire, but, as to defendant Lamkin, the companies claimed that the policies were void for reasons heretofore set out; that they paid Mrs. Blum her debt, and. the four notes, together with the lien, were transferred by her to. the companies without recourse on her; that the Wrights and Hutchinson and Lamkin were each personally liable on the notes; that the notes had been declared due because of failure to pay interest due thereon as was authorized by the terms thereof. The insurance companies. prayed that they have judgment for their debt against the Wrights, Hutchinson, and Lamkin; that the policies he canceled; that Lamkin recover of the companies the sums paid by him as premiums; and that they have foreclosure of their lien as against plaintiff and the defendants other than themselves.

The Beitel Lumber Company pleaded that it held the third note of the series of seven notes secured by mechanic’s and builder’s lien, and that there remained unpaid a balance of $177.32, for which it prayed judgment, and also asked for foreclosure of lien against all other parties to the suit. Lam-kin answered the cross-bill by plea in abatement and a general denial. Subject to the plea in abatement, he filed an answer consisting of a general demurrer to plaintiff’s petition and the answers of Beitel Lumber Company and the insurance companies. In addition to a general denial, he adopted all the special defenses set up by plaintiff in his answer to the cross-bill of the insurance companies, and pleaded that the note held by Beitel Lumber Company had been paid. The Wrights answered by general demurrer and general denial.

Plaintiff filed an answer to the cross-bill, consisting of special exceptions, a general denial, and a plea that the payment by the insurance companies to Mrs. Blum was on behalf of Lamkin, and therefore the companies had no right to subrogation. The insurance companies dismissed as to Hutchinson, because no service was had upon him.

The case was submitted on special issues, and the jury found that the note held by Beitel Lumber Company had been paid; that Lamkin was not guilty of any fraud or wrongful concealment of material facts when he obtained the several policies of insurance or either of them; that at the time he secured the policies he did not know that threats had been made to burn the building, and that the sanitarium had not ceased to be used as a sanitarium for tuberculosis patients prior to or on January 24, 1911. The insurance companies filed a motion for judgment, notwithstanding the verdict, which was overruled. Judgment was entered that plaintiff recover of Lamkin his debt, establishing his lien upon an undivided half interest in the property as a first lien thereon, and awarding him foreclosure thereof as against all defendants; that Beitel Lumber Company and all the insurance companies take nothing; and that the builder’s and mechanic’s lien be canceled. The insurance companies have perfected an appeal.

By the first assignment of error it is contended the court erred in refusing to give special charge No. 3, reguested by appellants, which was to return a verdict in favor of appellants upon the various issues on the ground that the undisputed evidence showed that threats to burn the property had been made and communicated to Lamkin prior to the issuance of the policies, and lie had failed to inform the companies or their agents of such threats, though such fact was material and unknown to them.

The jury found against appellants upon the defense relied upon in the charge now being considered, and it becomes necessary to decide whether the testimony was of such a character that the court would have been authorized to say, as a matter of law, that the defense was established. Dr. Wright, when first testifying in behalf of appellants upon this issue, said he did not remember ever having told Lamkin about the threats made to burn the property. He modified this statement immediately by saying that he did tell Lamkin, as his attorney, of Mrs. Freeman, his cook, threatening to kill him, also to burn the house, if he did not turn it over to some one else and get out of business. This was upon an occasion when he tried to discharge her, and was, he thought, several months before he sold to Lamkin. He said the trouble “blew over” and she left, as far as he knew; there was no more trouble then. He did not know what became of her. He said he did not remember ever telling Lamkin of any threats other than those made by the cook. He thought he made no statement to Lamkin that would have caused Lamkin not to buy. When recalled, the witness said: “This old lady Fleming, I have testified about what she said; and of course I told him people had told me they had heard, if I didn’t discontinue the business, the place would be probably burned down; I probably did tell Mr. Lamkin that before I sold to him, and while we were discussing the sale I think I told him.”

Lamkin testified that Dr. Wright consulted him with reference to putting the cook under a peace bond, and told him she had threatened) to kill a man working on the place and Dr. Wright, and that she had pulled a telephone off the wall. He advised against peace bond proceedings, and told Dr. Wright to get a policeman to protect his property and see that the cook behaved, which advice was taken; that later the cook brought suit to enjoin Dr. Wright from continuing the sanitarium, and procured a temporary injunction, which was afterwards dissolved. It does not appear that Lamkin was asked concerning other threats, or testified concerning the same.

It appears that, as to the conversation between Wright and Lamkin concerning the threat^ made by the cook, the jury accepted Lamkin’s version, which was to the effect that the threats communicated to him were threats to kill. But, were it conceded that Dr. Wright’s version is true, the threat of the cook was on account of a grievance against Wright personally, and not on account of hostility to the institution, and' was to be performed if he kept the sanitarium. He did not keep the sanitarium, and besides the trouble “blew over.” We do not think tile failure to communicate sueli a threat, if made, under the circumstances existing when the. policies were applied for, would constitute the misrepresentation of a material fact. It appears that Dr. Wright was told by people that they had heard, if he did not discontinue the sanitarium, it would probably be burned down. No one else made threats to Wright, nor does it appear that any one else made threats to Wright’s informants, but rather that such informants were furnished opinions by people to the effect that, if Wright did not discontinue the sanitarium, it would probably be burned down. These hearsay opinions could furnish no basis for a claim that threats had been made. Besides, Wright at the utmost only thought he told Lamkin of such statements to him, and contradicted himself on the issue whether he even thought he had told Lamkin.

The jury was justified in finding that the evidence failed to show that such statements had been communicated to Lamkin. The assignment is overruled.

By the second assignment complaint is made because special charge No. 2, requested by appellants, was not given, under which the jury would have been required to return a verdict for appellants on the ground that the undisputed evidence showed that, at the time the property was destroyed by fire, the same was not occupied as the Park Terrace Sanitarium. The contention having been made that the words “while occupied ás the Park Terrace Sanitarium,” used in connection with the description of the character and location of the property, constituted a warranty which had been violated by the building having ceased to be “occupied” as a sanitarium, the court submitted the issue whether the building “had ceased to be used as a sanitarium for tuberculosis patients prior to or on January 24, 1911.” No objection was made to the submission of the issue nor the form in which the same was submitted.

Apparently both parties construed the words “while occupied as the Park Terrace Sanitarium” to constitute a warranty, and, in the absence of other provisions qualifying such words, or showing an intent not to give such words the effect of a warranty, it appears that our courts have construed the same as constituting a warranty. Banking Ins. Co. v. Stone, 49 Tex. 4; Sun Mutual Ins. Co. v. Machine Co., 15 S. W. 34; Sun Ins. Co. v. Machine Co., 3 Willson, Civ. Cas. Ct. App. § 320; Shoe Company v. Insurance Co., 8 Tex. Civ. App. 237, 28 S. W. 1027. In the cases of East Texas Ins. Co. v. Kempner, 12 Tex. Civ. App. 540, 34 S. W. 393, and Phœnix Ins. Co. v. Cotton Machine Mfg. Co., 92 Tex. 297, 49 S. W. 222, the courts declined to hold certain statements to be warranties, because there were other clauses in the policies from which it could be ascertained that it was not the intent of the parties to create a warranty by the use of such statements. In this ease the statement of facts does not contain the entire policies, and we fail to find in the portions thereof which were deemed material and embraced in the statement of facts, and which are copied in our statement of the pleadings of the parties, any words indicating an intent not to make the words “while occupied as the Park Terrace Sanitarium” a warranty. We therefore feel constrained to hold, under the authorities cited, that said words constituted a warranty to the effect that the building would be occupied as a sanitarium during the life .of the policy. In order to decide whether the facts show, as a matter of law, that said warranty was breached, we must determine what was required of the insured, and then see whether the facts show that such requirement was complied with. In the case of Georgia Home Insurance Co. v. Brady, 41 S. W. 513, this court approved a definition of occupancy, in a case wherein the building insured was a dwelling, as “such an occupancy as the parties must be presumed to have intended— that is, a practical occupancy, consistent with the purpose for which the property was insured—and mere temporary absence from the premises by plaintiff or the members of his family does not operate as a breach of the obligation to occupy said premises, provided you believe from the testimony that such absence was a contingency which may fairly be said to have been within the contemplation of the parties.” In the case of East Texas Ins. Co. v. Smith, 3 Willson, Civ. Cas. Ct. App. § 282, the following rule was quoted with approval from Wood ón Fire Insurance: “A practical occupancy consistent with the purposes for which it was insured is intended, and an occupancy that measurably lessens the vigilance and care that would be incident to its use for such purposes is not an occupancy within the meaning of the term as thus employed. The intent of the parties in respect to occupancy is to be gathered from the usual and ordinary use of the premises for the purposes to which they are devoted.”

From Cooley’s excellent work, entitled Briefs on the Law of Insurance, we take the following rules: “Occupied implies an actual use by some person or persons, according to the purpose for which the building is designed.” “The use and occupancy which will satisfy the condition must be of such character as ordinarily pertains to the purpose to which the building is adapted or devoted.” “The word does not, however, imply that some person must be in the building all the time, without interruption, but merely that there must be no cessation of occupancy for any considerable length of time.” “In determining whether the continuity of occupancy is completely broken, the intent of the occupant is an important factor, but even an intent to return will not suffice to save a forfeiture if there is an absence for an unreasonable or a considerable length of time.” See, also, notes to Knowlton v. Insurance Co., 2 L. R. A. (N. S.) 517; Insurance Co. v. Buchanan, 4 L. R. A. (N. S.) 765.

The evidence upon the issue of occupancy, briefly stated, was as follows: Mrs. Chakas, witness for appellants, testified that she was a patient in the sanitarium until March 24, 1910; that then she became a nurse in such sanitarium and nursed Chakas, who married her on December 12, 1910; that on October 11, 1910, she moved to Dr. Wright’s home; that this was after Wright sold to Bamkin; on November 4th she moved back to the sanitarium, at which time it contained five or six patients, but she only had charge of Chakas; that i't was closed as a hospital on December 18, 1910, but she and her husband stayed there and kept house until January 23, 1911, at the request of Lamkin, in the capacity of caretakers of the property, he stating that it was necessary to keep some one there on account of the insurance; that the upper part of the building was closed up, and they lived in the lower portion; that Lamkin told her to get her a companion, but not any one who was sick, and she got Miss Bertha Little, who also stayed until January 23, 1911; that in the early part of January a terrible freeze occurred, and they put in a small heater which they found in one of the cottages, running the pipe through a piece of tin over half of the window; that when the sanitarium was in operation, as a rule, they had a cook, and witness was nurse, while the sanitarium was in charge of Mrs. Stovall, the matron; that Lamkin consulted her about the needs of the hospital after buying it, and she told him he had a Jonah on his hands, and he told ’her he bought the property as a real estate speculation, and that the house had no value to him because it had been used as a tuberculosis sanitarium, and he regarded it as a- nuisance; that an attempt was made to burn the building about 8 o’clock on the evening of January 22, 1911, the fire being extinguished by them, and on the next day they moved out; that the last prescription she obtained from Dr. Wright was for her husband early in January.

Dr. Wright testified that his connection with the sanitarium ceased when he sold it, but he still had patients there; that Mr. and Mrs. Ghakas were patients of his, and he treated them up to the time they left the property, having paid them a visit the day before they left, and that there was another patient in the sanitarium up to probably a week or ten days before the fire. He did not know of any change in the name of the institution after he sold it. During the time he ran it, he had as many as 20 to 25 patients at a time. He was in charge of the sanitarium and treated these patients. The sanitarium had 22 rooms, including the little houses, and had some cottages outside where incurable patients were located.

Lamkin testified: “Mrs. Stovall, my matron out there, first notified me she was going to leave on the 16th of December, 1910. I have_ in my pocket the original note she wrote me at the time, telling me she was going to leave the property December 16th; and she did leave the sanitarium, I imagine, about the 18th. I think she was there a short time after. After I bought the sanitarium from Dr. Wright, I operated it as long as it existed, as such. I did not make arrangements with Mrs. Ghakas and her husband to remain in the building as caretakers after Mrs. Stovall left. I will explain that I did so: After Mrs. Stovall wrote me that note she was going to leave the sanitarium, I received a note from Mrs. Ghakas, in which she said or made known to me Mr. and Mrs. Chakas’ keep was paid up to and inclusive of December 25, 1910. Mrs. Stovall wrote me, and Mrs. Ghakas wrote me on the 16th of December, that I could refund her the difference owing up to the 25th, the amount they had paid, and what they had coming, under arrangement with Tom Chakas, brother of Mike Ghakas, who paid me for Mike’s keep. She said in this same note she hated very much to leave the sanitarium. I have the note here, if you want to see it. Later, I don’t know whether she called me or I called her — she says I called her; perhaps I did — why, I said to her if she wanted to remain there, why, I was going to Houston for the holidays, and that she might continue, she and her husband, to occupy and use the groceries there in the property, and that, when I returned, why then I would see her, and, if we owed her anything, I would refund it; and she concluded to do that. She remained there. I went to Houston, took advantage of the rates and took my family to Houston, and took advantage of the ticket that didn’t expire, my recollection is, until the 3d of January, when I returned to San Antonio and got busy with Mrs. Wahrmund to use her as my matron there; but, before I got Mrs. Wahrmund established in the sanitarium, it was destroyed by fire. During the time I was away, my servants continued with me there. Mrs. Stovall left, but Ziegler, the man cook, I paid him up and he left during Christmas, and I told Mrs. Ghakas I didn’t intend to put any more patients in there until my return after the holidays. It is a fact I put no patients in there at the time I left for Houston, and none put in there, to my knowledge, from that time until the fire occurred. Yes; I had pay patients in there in December; I can’t tell how many. Mirs. Gibson remained, was the last to leave; wife of a doctor of Beaumont. She left, I think, several days after Mrs. Stovall left the property. My remembrance is those patients that were in there were all able to travel and go home for the holidays except one, Mrs. Gibson, and that she was practically bedridden; but she compelled herself to go, and got out anyway, I think a few days after Christmas. No; there were no patients in there during the month of January. I sent patients ont there to look over the property, with the view of putting them in later, when I got this matron in there and got things arranged.”

He also testified: “I employed Mrs. Mor-man as matron to succeed Mrs. Stovall. I have a card of hers here. I did employ another matron to take charge of the sanitarium. She came here from the Baldwin Sanitarium, El Paso — had previous experience in the same line of work; and I expected to continue the sanitarium here under the management of Dr. Theo. Y. Hull, who is regarded as a leading tubercular specialist in the South. I made efforts to obtain patients in December and January. Only two patients were consulted in person. One was a young man, I don’t remember his name, that worked for the Emerson Loan Company; the other, the brother-in-law of a very handsome lady connected with the curio store on Alamo Plaza — could' get names— not necessary to tell what I told them. I did not state to Mrs. Ohakas I didn’t want any sick people to go in there, and she never mentioned the fact to me of her putting anybody in there ‘as a companion.’ I did not know until the first attempt to burn the property that this lady, Miss Little, she speaks of, was in there.” Lamkin also testified he did not know of any heating stoves ever being placed in the building, except oil stoves, all of which were finally taken out. When Mrs. Chakas moved out, Lamkin locked the front door and took the key. At the time the house was burned, it still had the furniture and all the equipment for a sanitarium in it.

Considering the size and nature of the building used as the Park Terrace Sanitarium, the manner in which the institution had been conducted, and the general nature of the business, it cannot be said that the occupancy during the month preceding the fire was of the character contemplated by the insurers when entering into the contract. During said time, there was no attending physician, matron, cook, or servants, and no facilities for heating the building in the middle of winter; in fact there were three people in the building who made their residence there and who were not authorized to receive patients, nor employed to wait upon, cook for, or nurse them. They remained until about 26 hours before the fire, after which the building was only in charge of a watchman. We think reasonable minds must concur in the conclusion that the use of the premises as a sanitarium ceased about a month prior to the destruction thereof, and the next question is whether the cessation was of such duration as to forfeit the policy. The jury was authorized to find from Lam-kin’s testimony that he intended to resume the operation of the sanitarium. Where a dwelling is insured, temporary absences of the family are within the contemplation of the parties, and, where mills and manufac-tories are insured, temporary suspensions of business are contemplated. With a sanitarium it might be contemplated that a temporary suspension would take place if necessary for repairs to the building, but it surely was not contemplated that, if the matron quit, the owner could close down and take such time as he wished in order to get a desirable matron. The matron gave notice on December 16th that she would leave. After nearly a month and a half, no other matron had been installed. When a building is insured while occupied for a certain business, it is contemplated that the business will be continued, and, while suspensions may take place owing to exigencies arising from the necessity of making repairs or from the nature of the business, yet we do not think that in this case the facts are such as to justify a finding that the suspension of the use of the building as a sanitarium was of reasonable duration. It was incumbent upon Lamkin to use diligence to have the building occupied as a sanitarium, and, if he found that he could not do so within a reasonable time, he should have applied for the consent of the companies to allow the building to remain unoccupied for a certain time or for permission to change the nature of the occupancy. The care and vigilance that would have accompanied the use of the property as a sanitarium was a material element entering into the contract, and could not be dispensed with for a month without the consent of the companies. We have read many cases wherein the question arose whether a building was “occupied” at the time it was destroyed, but have found none where a building used as a hospital or sanitarium was insured. It would be of little benefit to discuss cases where dwellings, stores, mills, or manufactories have been insured, because the nature of the use is entirely different from that of a sanitarium. We conclude that the evidence is undisputed that the building had ceased to be occupied as a» sanitarium for a month or more before its destruction, and that such period of time was unreasonable in view of the nature of the business to be conducted in the building.

We are therefore of the opinion that the insurance upon the building was void as to Lamkin. The companies contend that, such being the case, they are the legal owners and holders of the lien held by Mrs. Blum, which is a prior lien to that of appellee Cobb.

The policies provide for the companies becoming subrogated to Mrs. Blum’s lien if they pay off her claim, when no liability exists as to the insured. The rights of Mrs. Blum and those of the companies under this clause are not affected by the fact that Lam-kin paid the premiums. Cooley’s Briefs on the Law of Insurance, pp. 1525, 1526. It is contended that no subrogation took place in this instance because the policies do not provide for a builder’s and mechanic's lien, but only a mortgage lien. In support of this position, we are cited to the case of Burton-Lingo Co. v. Patton (N. M.) 107 Pac. 679, 27 L. R. A. (N. S.) 420. The clause therein construed was one providing for forfeiture if foreclosure proceedings be brought “by virtue of any mortgage or deed of trust.” The court refused to extend this provision so as to embrace the foreclosure of a mechanic’s lien, construing the words of the clause strictly against the insurance company, as was correct. We are not now construing a forfeiture clause, but one giving Mrs. Blum certain rights and the companies certain rights. The lien held by Mrs. Blum was a builder’s and mechanic’s lien in writing, under the terms of which insurance was required to be carried, and there is not even a contention that said lien was not the one meant by the parties to the insurance contracts.

All parties fully understood that said lien was meant, and there can be no doubt that, had the companies refused to pay Mrs. Blum, she could have recovered a judgment against them upon such clause, and that, having paid her, they became subrogated to her lien as in such clause provided.

The judgment, therefore, cannot be sustained, upon the theory that appellants did not become subrogated to the claim and lien held by Mrs. Blum.

The remaining assignments of error relate to the issues of fact already discussed, and it is unnecessary to write our conclusion as to each of them.

The judgment will be affirmed as to the disposition made of the defendants Albert Beitel and Boy M. Beitel, partners under the firm name of Beitel Lumber Company, and as to all other issues the same is reversed and the cause remanded.


source: Caselaw Access Project

author: FL5T, C. J.

license: Public Domain

text:
    TINKHAM et al. v. WRIGHT et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1914.)
    1. Husband and Wins (§ 169) — Private Property op Wipe — Liability op Wipe.
    Where a wife as principal executed a note and mortgage with her husband for the benefit of her separate estate, she cannot escape liability on the mortgage on the ground that it authorized the substitution of a new note for the old one, and permitted the renewal note to be signed by different parties.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 660-670, 702, 949, 951; Dec. Dig. § 169.]
    2. Husband and Wipe (§ 169*) — Construction — Debts Secured.
    A deed of trust executed by a husband and wife recited that it was for the purpose of better securing one W. in the payment of a note executed by the husband and wife, and that it was also intended to secure the payment of any renewals of the note or substitutes thereof, and the payment of all notes which might be executed by an amusement company payable to W. Held, that the deed of trust was broad enough, not only to secare the payment of a renewal note executed by the amusement company, but other notes executed by such company in favor of W., to take up a debt of the company acquired by him from a third person.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 660-670, 702, 949, 951; Dec. Dig. § 169.]
    3. Mortgages (§ 16) — Validity — Future Debts.
    A mortgage can be given to secure future debts.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 18, 19; Dec. Dig. § 16.]
    4. Appeal and Error (§ 1062) — Beview— Harmless Error.
    In a proceeding for the foreclosure of mortgages on land, the act of the court in taking from the jury the question of the rent for which the receiver appointed should be liable, is harmless, where the court allowed the highest amount which the evidence would have authorized.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]
    5. Trial (§ 252) — Instructions.
    The refusal of special issues on uncontro-verted and immaterial facts is not improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.] •
    6. Husband and Wipe, (§ 169) — Validity-Previous Agreements.
    Where a wife, after it was duly explained to her, executed a deed of trust on her separate property, the fact that she and her husband had agreed to the execution of a different instrument will not impair the rights of the beneficiaries.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 660-670, 702, 949, 951; Dec. Dig. § 169.]
    7. Acknowledgment (§ 55) — Certificate— Conclusiveness op Becitals.
    In the absence of fraud, where it appeared that a wife separately acknowledged a deed of trust, the certificate of separate acknowledgment, stating that it was explained to her, is conclusive, and she cannot, as a defense to the instrument, set up that she did not understand it.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 290-300, 303-314; Dec. Dig. § 55.]
    8. Belease (§ 28) — Depenses—Joint Obligations.
    Where a note was the joint and several obligation of the makers, the release of one of them did not operate as a release of the others.
    [Ed. Note. — For other cases, see Belease, Cent. Dig. §§ 57-62; Dec. Dig. § 28.]
    Appeal from District Court, Bexar County; B. H. Ward, Judge.
    Action by Martin Wright and others against the Exposition Park & Amusement Company, in which John T. Wilson and Caroline Tink-ham and husband intervened. From a judgment for plaintiff and intervener "Wilson, Caroline Tinkham and husband appeal.
    Affirmed.
    Denman, Franklin & McGown, of San Antonio, for appellants. Ball & Seeligson and Chas. W. Trueheart, both of San Antonio, for appellees.

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

   FL5T, C. J.

This' suit was instituted by Martin Wright, on a promissory note for $1,-217 and an open account for $186.20, against the Exposition Park & Amusement Company, it being alleged that the note was secured by a chattel mortgage and material-man’s lien on the property of the defendant. John T. Wilson intervened in the case, seeking to recover an indebtedness against the Park & Amusement Company, alleging that it was secured by deed of trust upon the property in controversy, being what is known as Exposition Park, which was executed by appellants and the company. Caroline Tink-ham Intervened, alleging that the real estate upon which the Exposition Park was situated, and which was covered by the deed of trust to intervener Wilson, was her separate estate; that it was purchased by her for a homestead, and the liens set up by Wright and the deed of trust alleged by Wilson were invalid as against said homestead; that if the deed of trust was valid, then she alleged that it was given to secure a $5,000 note, and the lien had ceased to be operative because the note had been substituted for a note not signed by the same parties as those who signed the first note,, and that the deed of trust was not given to secure the other notes sued on by Wilson, amounting to about $8,000; that the deed of trust was procured by fraud of Wilson, in regard to the contents of the deed of trust, and that the notary public who took her acknowledgment to the deed of trust did not explain it to her; and that she was ignorant of its contents. The cause was submitted on special issues, and upon the answers returned by the jury the court adjudged and decreed that the deed of trust executed by the Exposition Park Company and Mrs. Tinkham and her husband, O. E. Tinkham, to R. L. Ball, trustee, to secure certain indebtedness to Wilson, be foreclosed; that said Wilson recover of O. E. Tinkham and the Park & Amusement Company the sum of $26,075.29, and interest, and that the lien given in the deed of trust be foreclosed, both as to the makers of it and as to Martin Wright, the receiver appointed at his instance, and a number of other persons named therein, on all the property, real and personal, involved in the suit, being certain land and all the personal property and all the appurtenance's thereon known as the Exposition Park. A number of leases were canceled, and it was further adjudged that Mrs. Tinkham recover of the receiver appointed by the court the sum of $3,440.33 for rent of the property from the date of his appointment on September 26, 1911, to March 6,1913, said sum to be classified by the court and to be paid in the manner ordered by the court. This appeal was perfected by the Tinkhams.

The facts sustain the conclusions that the debts set up and described were secured by a deed of trust on the property of Caroline B. Tinkham, described in said instrument, and being known as the Exposition Park, which was given by her and her husband and the park company, that authority was given in the deed of trust for the renewal of the note and the execution of other notes by the company for which that instrument would be security, and that the debts sued on by Wilson were strictly within the purview and meaning of the deed of trust, and were secured thereby. We further conclude that the property was not the homestead of the Tink-hams when the deed of trust was executed.

The court, at the request of one of the parties submitted a number of special issues to the jury, with the admonition that if the first three were answered in the affirmative the others should not be answered. The first three issues were answered in the affirmative and are as follows:

“Question No. 1: Do you find from the evidence that when Mrs. Caroline B. Tink-ham signed and acknowledged the deed of trust which is sought to be foreclosed by in-tervener John T. Wilson in this case, she did so with full knowledge and understanding of the contents of said deed of trust?
“Question No. 2: Do you find from the evidence that the notary public, John E. Cor-yell, exhibited and fully explained to Caroline B. Tinkham, separate and apart from her husband, the deed of trust sought to be foreclosed in this case?
“Question No. 3: Did the notary public-who took Mrs. Caroline B. Tinkham’s acknowledgment to the deed of trust sued upon explain to her, at the time of taking her acknowledgment, that said instrument, in addition to securing the $5,000 note, dated April 1, 1911, attempted to secure all debts then due from the Exposition Park & Amusement Company to the West End Lumber Company, or to John T. Wilson, for material furnished to said company, as well as all other debts that might thereafter become due from the Exposition Park & Amusement Company for material furnished by the West End Lumber Company, and all moneys that John T. Wilson might advance to the Exposition Park & Amusement Company?”

It is claimed through the first assignment of error that upon the answers to the three issues judgment should have been rendered for appellants, because, if the trust deed created a lien on the property of Caroline B. Tinkham, it was to secure a $5,000 note described therein, and that the lien had been lost by a renewal of the note by different parties from those who executed the original note, and because the deed of trust was not given to secure any debts to the West End Lumber Company, nor any indebtedness except the $5,000 note. The assignment of error is based on the construction placed on the deed of trust by appellants, which is that no debts were secured except the one evidenced by the note described in the deed, of trust or its renewal with the same makers on it, and that no power of extension or renewal was given except as to the $5,000 note.

The deed of trust, after conveying the property to R. L. Ball, trustee, provided: “This said conveyance, transfer and mortgage is intended, however, as a trust for the purpose of better securing J. T. Wilson, of San Antonio, Texas, in the payment of one certain promissory note, of even date herewith, due ninety days after date, for the sum of five thousand dollars, payable to the order of J. T. Wilson at the National Bank of Commerce of San Antonio, Texas, bearing interest from maturity at the rate of ten per cent, per annum, and providing for the payment of ten per cent, additional as attorney’s fees if placed in the hands of an attorney for collection, or in the event judicial proceedings are instituted to enforce the collection thereof, and this said deed of trust is also intended to secure the payment of any renewals of said note, or any part thereof, or any substitutes therefor, and also to secure the payment of any and all notes which may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of said J. T. Wilson, together with interest and attorney’s fees as may be Stipulated in note or notes given to evidence such said indebtedness, and this said deed of trust shall be, remain and constitute a continuous and continuing security for the purpose of better securing the payment of said above described indebtedness, as well as any and all renewals, extensions and continuations thereof. Upon the payment of all indebtedness or liability upon our part, as hereinabove specified, being well and truly made by us, then and in such event, this conveyance is to become null and void, and of no further force and effect, and shall be released at our cost and expense. But in case of the failure or default upon our part to pay said promissory note to the said J. T. Wilson, or the legal owner and holder of said note, together with interest thereon accrued at the maturity thereof, or at the maturity of any extension or extensions thereof, together with all other notes that may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of J. T. Wilson as here-inabove specified, then and in such event the said R. L. Ball, trustee, * * * is by these presents fully authorized and empowered and it is made his special duty at the request of the said J. T. Wilson or the legal owner and holder of said note or notes or any renewals or extensions thereof to sell * * * and to receive thereof which shall be applied as follows: * * * 2nd. To the payment of said note and interest and all other notes that may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of J. T. Wilson, etc. * * * We further agree that in case any extension is made in the time of the.payment of the said above described note that either of the grantors herein, with or without the consent of the other, may make such extension or extensions and it shall in no wise release or affect the obligation herein, or the security given to secure said note, but the same shall remain and be a continuing security until said note, or any and all renewals, extensions or continuations thereof, is fully paid off and discharged, according to its reading, tenor and effect, and we, and each of us hereby ratify any agreement whatsoever made by either of the grantors herein in any said extension or- extensions.”

The instrument undoubtedly was intended, as stated therein, not only to secure the payment of the $5,000 note and any renewals or substitutes for it or any part of it, but “also to secure the payment of any and all notes which may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of said J. T. Wilson,” and it is reiterated in the clause as to default in payment and sale of the property that, in case of any failure to pay the $5,000 note, or any extension, “together with all other notes that may be hereafter executed by the said Exposition Park & Amusement Company payable to the order of J. T. Wilson as herein-above specified,” the trustee was authorized to sell the property described therein. The language is plain and unequivocal, and after the jury had found that the deed of trust had been acknowledged by Mrs. Tinkham, with full knowledge and understanding of its contents, and that the notary public who took her acknowledgment had, at the time of taking the same, explained to her that the instrument, in addition to securing the $5,000 note, also secured all debts then due by the Exposition Park & Amusement Company to the West End Lumber Company or J. T. Wilson, the deed of trust, with the notes, supplied everything else necessary to support a judgment. There were no other facts for the jury to find that were essential to a judgment on the notes and foreclosure of the lien.

The power given to renew or extend time of payment of the indebtedness is plain and unequivocal, and the validity of the renewal was not affected by the fact that some of the names on the original note were not signed to the renewal. The note was executed by C. E. Tinkham and Caroline B. Tinkham, as principals, for the benefit of her separate estate, and she cannot invoke the law as set out in Westbrook v. National Bank, 97 Tex. 246, 77 S. W. 942, to evade payment of her debt, because she authorized the substitution of a new note for the old one. She also stipulated in the deed of trust that either the Exposition Park & Amusement Company, C. E. Tink-ham, or herself could make such extensions. None of the cases cited by appellants under the first assignment of error sustains the propositions thereunder. The case of De Barrera v. Frost, 39 Tex. Civ. App. 544, 88 S. W. 476, decided by tbis court, not only does not sustain tbe contentions of appellants, but is directly opposed to them, for it is held therein that, on extension of the original debt and as to money that was expended on the separate estate of the wife, she was not released by an extension of the note made by her husband, although such extension was not authorized by her. This court, through Chief Justice James, said: “Being of the opinion that, notwithstanding plaintiff’s right to have the deed of trust in question canceled as to her property in so far as the debt extended by the husband was his debt in the' sense that her property was merely surety therefor, we conclude that this would not be the effect of such extension upon so much of the $5,000 note as represented the indebtedness evidenced by the first deed of trust, and as to any and all sums that were applied for the benefit of her separate estate.”

The deed of trust is broad and comprehensive enough to cover any note thereafter given by the Exposition Park & Amusement Company to J. T. Wilson; and, if he did buy from the West End Lumber Company the debt due to it by the Park & Amusement Company, and the latter then gave its note for the debt to Wilson, the deed of trust covered the debt The facts show, however, that Wilson practically owned the lumber company, and the debt was really due to him. C. E. Tinkham had control of the Exposition Park property, and he executed all of the notes whose payment is sought to be evaded.

The cases cited by appellants are easily distinguishable from this, by reason of the difference in the language employed in the mortgages as to other debts than the one existing at the time of the execution of the mortgage. Of course the mortgage could not be held to be security for debts not provided for by it. The California cases of Moran v. Gardemeyer, 82 Cal. 96, 23 Pac. 6, and Fay v. Costa, 2 Cal. App. 241, 83 Pac. 275, merely hold that the debts sued on were not within the terms of the mortgage. The deed of trust in this case did not refer to debts of a certain class, but to “any and all notes which may be hereafter executed by the said Exposition Park & Amusement Company.” It included any and all debts of every character; the only condition being that the company gave its notes for them. This seems to give great power to the Park & Amusement Company, but it is not to be wondered at when it is remembered that Mrs. Tinkham owned the land on which the park was located and a majority of the stock of the corporation, and that she and her husband had absolute control of it. It was their park and their corporation, to all intents and purposes, and the notes provided for in the deed of trust were to be executed by their corporation.

The debt of the lumber C9mpany was not transferred to Wilson merely to bring it within the scope of the deed of trust, although as stated that would not have prevented it from coming within the terms of that instrument if a note was given by the park company for it, but the debt was discussed with C. E. Tinkham before the execution of the instrument, and it was agreed by him and by the Park & Amusement Company that it should be included in the deed of trust.

It cannot be held that the word, “indebtedness,” used in the clause setting forth the objects of the conveyance of the land to the trustee, referred to the note alone, for it is broad enough to include the notes thereafter to be executed, which had been mentioned just before it was recited that the conveyance was made to secure “the payment of said above indebtedness.” The word, “indebtedness,” includes one or more debts. The word as used in the deed of trust must be construed in connection with the debts provided for. It is well settled that a mortgage can be given to secure future debts. Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684; Willis v. Sanger, 15 Tex. Civ. App. 655, 40 S. W. 229.

The second and third assignments of error are overruled. The court allowed $200 a month rent for the premises, and that was as much as the evidence of appellants would sustain. The failure to allow the jury to pass on the rental value of the premises was therefore without harm to appellants. It is hardly credible that the property could have been rented for more than $200 a month, and yet was rented for that by the husband, and yet he swore that he could have got more and yet failed to indicate how much. The figures given by the evidence were $200 a month, and that was given by the court. It is not at all probable that the jury would have attempted to exceed the sum allowed by the court under the uncertain testimony offered by appellants.

The fourth assignment is without merit, and is overruled. The sureties on the receiver’s bonds were not made parties, and no judgment could have been asked against them, and of course the court could not have rendered a legal judgment against them. The judgment against the receiver was properly made payable out of the earnings of the receivership. Under the facts and pleadings, no personal judgment could be rendered against him nor his bondsmen. Beach on Receivers, p. 257; Alderson on Receivers, pp. 794, 795. No trespass was alleged, and no judgment for rents was asked as against Wilson.

As no one controverted the facts sought to be submitted to the jury by special issues 5, 6, 7, and 8, it was utterly unnecessary to submit such matters to the jury. There were no issues on those points. They had no materiality anyway.

The ninth, tenth, and eleventh issues requested by appellants were immaterial, and were properly refused. It did not make any difference what Mrs. Tinkham or her husband may have agreed to before she executed the deed of trust. She bound herself by that instrument, and that alone formed the basis of the judgment. The jury found that she had the deed of trust fully explained to her, and that she was informed that it bound her for the $5,000 and the debt of the West End Lumber Company. The instrument itself showed that the deed of trust covered any note given by the Exposition Park & Amusement Company. There was no evidence of any fraud being used to obtain her signature to the trust deed. Wilson did not talk to her about it, and no one else except the notary public, and very probably her husband. There was sufficient evidence to sustain the findings that Mrs. Tink-ham knew the character of the instrument she signed, that it was fully explained to her, and that no one, by fraudulent or other means, induced her to sign the deed of trust. There was no issue of fraud to go before a jury. There is no merit in the remaining assignments of error and they are overruled.

No fraud having been shown on the part of the mortgagee, John T. Wilson, the certificate of the separate acknowledgment of Mrs. Tinkham is conclusive of the facts therein stated. She cannot be heard to say that she did not. have an explanation of the trust deed or did not understand it. Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Wiley v. Prince, 21 Tex. 640; Kocourek v. Marek, 54 Tex. 201, 38 Am. Rep. 623; Waltee v. Weaver, 57 Tex. 569; Webb v. Burney, 70 Tex. 322, 7 S. W. 841; Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 66 Am. St. Rep. 920. Such being the law, it would not matter so far as Wilson is concerned whether the notary public explained the deed of trust to Mrs. Tinkham or not.

The original $5,000 note was the joint and several note of C. E. Tinkham, Caroline B. Tinkham, the Exposition Park & Amusement Company, and others, and the release of any of them would not operate as a release of the others. Daniel, Neg. Instr. § 1294; Austin v. Jordan, 5 Tex. 130; Dean v. Duffield, 8 Tex. 235, 58 Am. Dec. 108; Horton v. Wheeler, 17 Tex. 52; Cook v. Phillips, 18 Tex. 31; Payne v. Bentley, 21 Tex. 452; Shipman v. Allee, 29 Tex. 17; Keithley v. Seydell, 60 Tex. 78; Glasscock v. Hamilton, 62 Tex. 143; Miller v. Sullivan, 89 Tex. 480, 35 S. W. 362; McFarlane v. Howell, 91 Tex. 218, 42 S. W. 853; Bute v. Brainerd, 93 Tex. 137, 53 S. W. 1017; McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721. Appellants have no cause for complaint because some of the joint and several makers of the note were left off the second note which was substituted for the original note. If - they wished for contribution as against those on the original note, they should have implead-ed them. Beleasing them did not-release appellants. Collins v. Barbee, 3 Willson Civ. Cas. Ct. App. § 128.

The judgment is affirmed.


author: McMEANS, J.

text:
    BEAUMONT & G. N. R. CO. v. GONZALES.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 13, 1914.
    Rehearing Denied Feb. 5, 1914.)
    L Appeal and Eeroe (§ 1002) — Findings— Conflicting- Evidence.
    A verdict rendered on conflicting evidence will be sustained on appeal, as to the facts.
    [Ed. Note. — For other cases, 'see Appeal and 1002¾ Gent‘ Dig; 3935-3937; Dec. Dig.

    2. Mastee and Servant (§ 89) — Scope op Employment.
    Under the rule that a servant injured in the performance of an act not done in furtherance of the master’s business cannot recover therefor against the master, a track laborer, who was injured by a hand car derailing while he and his foreman and other laborers were running handcars at night for the purpose of taking two camp cooks to town on a social visit, could not recover, though plaintiff was required by his foreman to make the trip and told that he would be allowed extra time therefor; plaintiff knowing that the work in which he was engaged was not in furtherance of the employer’s interest.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig.

    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Action by Antonio Gonzales against the Beaumont & Great Northern Railroad Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Kenley & Minton, of Groveton, and Alex S. Coke and A. H. McKnight, both of Dallas, for appellant. Crow & Phillips, of Grove-ton, and Augustus McCloskey, of San Antonio, for appellee.

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

   McMEANS, J.

Antonio Gonzales brought this suit to recover damages for personal injuries sustained by him while in the employment of the Beaumont & Great Northern Railroad Company, and upon a trial before a jury recovered a judgment for $2,750. The defendant has appealed.

Gonzales was one óf a gang of laborers engaged in relaying defendant’s railroad tracks and improving its roadbed, and was working under, the direction and control of one Andrews, defendant’s vice principal. The gang was camped about four or five miles from the town of Trinity. Two negro women did the cooking at the camp. On Saturday night, January 21, 1911, the two women desiring to go into town for the purpose of visiting their mother, the foreman, Andrews, arranged to take them in by the use of hand cars. To do this he attempted to use two hand cars in the following manner: The cars were placed upon the track about six feet apart, and a plank was placed upon them, extending from one of the cars to the other, and the women were seated on this plank over the space between the cars. The foreman went with the cars and seated himself upon the front of the first car. Each of the cars was propelled, or “pumped,” by four men; one of them being Gonzales. This was a dangerous and negligent method of handling the ears and resulted in the derailment of one of them and the injury of Gonzales, who was damaged in the amount found by the verdict of the jury.

Defendant at this time had a rule in force, of which both the foreman and Gonzales had been informed and knew, prohibiting the use at night of hand cars, except on business of the company, or in case of sickness; and in the event last stated the foreman was required to accompany the car. There was some dispute in the testimony as to whether Gonzales was required by the foreman to go upon the cars on the night in question. The foreman testified that he was undertaking to take the laborers and the two women to town, at their earnest solicitation, to see a show or carnival then exhibiting in Trinity. This was denied by Gonzales, who, on this point, testified as follows: “The'hand car wrecked because the foreman told me they were going to town to take the two hand cars to take the two negro women down town. The foreman told us that he wanted to go to town to take two negro women that were cooking in the camp, and he says, ‘X want eight men to go with me.’ He says, ‘Want you to go with me, too,’ and I says, ‘I can’t go to-day; I have worked all day;’ and I go to my car to bed. And in about 15 or 20 minutes he call me again that he want me to go with him. 1-Ie says, ‘I want you to go with me because you know the road all right and you go with me and I will give you overtime;’ and I says, ‘All right;’ and I says, ‘Which car?’ and he says, ‘Want you on the front ear because you know the road.’ It is not a fact that X was going to Trinity that night to a show. Me and those negro women and those other Mexicans were not going to Trinity to a show that night. Mr. Andrews (the foreman) told me he wanted to take the two negro women to town. They were going to see their mother in Trinity. Those negro women were the cooks in the camp. It was about 7 o’clock. We had all come in from our day’s work and had eaten supper. Our day’s work was over. It was about Saturday. I did not hear anything said about seeing those hobby horses and flying jennies and merry-go-rounds in Trinity. I don’t know about there being a carnival company in Trinity at that time. I don’t know about me and cooks and all the rest of the gang discussing going to Trinity that night to a carnival. I don’t know about going to the show. He told me he would give me overtime to make me go. I told him first I couldn’t go; that I wanted to go lay down; that I had been working all day.”

In deference to the verdict we find the testimony of plaintiff to be true.

Appellant’s first assignment of error is based upon the refusal of the court to give its first special charge peremptorily instructing the jury to return a verdict in its favor.

Appellant contends that the peremptory instruction should have been given for the reason that the undisputed evidence shows that the act out of which the plaintiff’s injury grew was done without the scope of the foreman’s general authority, and was not in furtherance of the master’s business, nor for the accomplishment of the object for which the servant causing the injury was employed.

We think the assignment must be sustained. We take it as true that the foreman insisted upon plaintiff accompanying the ear, and promised to allow him overtime for so doing. But these facts do not take the case out of the general rule that denies a recovery to a servant who is injured in the performance of an act not done in furtherance of the master’s business and for the accomplishment of the object for which the servant is employed. While it is true that plaintiff acted upon the request of the foreman and upon promise of payment for overtime, he knew that the mission was not in furtherance of the business of the master, but purely private, for he says the purpose of the trip was to take, the two negro women to town, and that they were going to see their mother in Trinity.

Branch v. Railway, 92 Tex. 288, 47 S. W. 974, 71 Am. St. Rep. 844, involved a* cause of action for injuries to a traveler on a highway, as a result of a collision with a hand car being operated by a section foreman of the railway company on a private mission. The case reached the Supreme Court on certified question, but the effect of the answer was to hold that, under the facts, a recovery could not be had. The court said that assuming that the section foreman was not at the time using the car in discharge of his duties to the company, and did not have its consent to operate the same, “it would seem that, upon principle and authority, the non-liability of the company is so well settled that it would serve no useful purpose to attempt to restate the principles upon which the decisions in similar cases have been based, and therefore, in answering the first question in the negative, we content ourselves in referring to some of them. Railway v. Cooper, 88 Tex. 607 [32 S. W. 517]; Railway v. Dawkins, 77 Tex. 229 [13 S. W. 982]; Stephenson v. Railway, 93 Cal. 559 [29 Pac. 234, 15 L. R. A. 475, 27 Am. St. Rep. 223]; Cousins v. Railway, 66 Mo. 572; Robinson v. McNeill [18 Wash. 163] 51 Pac. 355.” The following cases are substantially to the same effect: Railway v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Railway v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Railway v. Bush, 104 Tex. 26, 133 S. W. 245, 32 L. R. A. (N. S.) 1201; King v. Railway, 146 S. W. 300; Studebaker v. Kitts, 152 S. W. 464; Christensen v. Christiansen, 155 S. W. 995.

We think that, under the facts proven, no liability of appellant to appellee was shown, and that the peremptory instruction requested by appellant should have been given. The objection urged by appellee to a consideration of the assignment, and his contention that the refusal to give the charge, if error, was invited error, are without merit. Railway v. Beasley (Sup.) 155 S. W. 183. The judgment of the court below is reversed, and judgment is here rendered for the appellant.

Reversed and rendered.


author: CARL, J.

text:
    ST. LOUIS, B. & M. RY. CO. v. JENKINS.
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 28, 1914.
    Rehearing Denied Feb. 18, 1914.)
    1. Death (§ 104) — Instructions—Damages.
    An instruction, in a father’s action for Ms son’s negligent death, that the jury should find for plaintiff as damages such a sum as would be equal to the pecuniary benefit, if any, that plaintiff had a reasonable expectation of receiving from his son had he lived, and by “pecuniary benefit” was meant everything that could be valued in money, was erroneous as presenting the jury, from passing upon the amount which, if paid now, would compensate plaintiff for the loss sustained.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.]
    2. Death (§ 11) — Right of Recovery.
    There is no right of recovery for negligent death except as given by Rev. Civ. St. 1911, Arts. 4698-4704, and, to recover thereunder, plaintiff must show the pecuniary loss sustained by him.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 10, 15; Dec. Dig. § 11.]
    3. Trial (§§ 295, 296) — Instehctions—Cub-ing Eeboes.
    Instructions must be construed as a whole, .and an omission in one part of an instruction may be cured by a proper charge elsewhere, but the charge as a whole must present the law of the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-718; Dec. Dig. §§ 295, 296.]
    4. TRIAL (§ 234) — Instructions—Burden of Proof.
    An instruction, in an action for negligent •death, that, if the jury found from the preponderance of the evidence that plaintiff had no reasonable expectation of receiving any pecuniary benefit from the decedent had he lived, the jury should find for defendant was erroneous as placing the burden of proof upon defendant to show that decedent would not have contributed anything to plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534G538, 566; Dec. Dig. § 234.]
    .5. Depositions (§ 77) — Grounds fob Sup-pbessing — Absence of Seal.
    The absence of the seal on the envelope in which depositions were returned is not a ground for suppressing the depositions; the seal being imprinted where the officer certified to the deposition proper.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 197-199; Dee. Dig. § 77.]
    6. Master and Servant (§ 274) — Evidence —Contributory Negligence — Other Acts of Negligence.
    In an action for a railroad engineer’s death claimed to have been caused by bad track and a defective engine, evidence that the day before the wreck decedent was running his engine at a high rate of speed some 12 or 14 miles from the place of the accident was not admissible; other acts of negligence not as a rule being admissible.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.]
    Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.
    Action by Jesse F. Jenkins against the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Claude Pollard, of Kingsville, and H. R. Sutherland and Robt. W. Stayton, both of Corpus Christi, for appellant. Jno. C. Scott and W. L. Dawson, both of Corpus Christi, for appellee.

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

   CARL, J.

The appellee, Jesse F. Jenkins, brought this suit against the St Louis, Brownsville & Mexico Railway Company, appellant, to recover damages for the death of his son, Harvey E. Jenkins, while operating an engine on appellant’s road, handling a work train. The death of Harvey E. Jenkins occurred September 22, 1906, and plaintiff below was 55 years of age.

Various acts of negligence on the part of appellant are set forth in the first amended original petition, among which it was charged that the switch engine on which Harvey Jenkins was killed had no pony trucks, or small wheels, in front, and that the track was uneven and not ballasted, and that the rails had sunken joints at or near the place of the accident, and by reason of the fact that there were no such pony trucks, and because the track was uneven and had sunken joints in the rails, the engine was thrown from the track and Harvey Jenkins killed. Appellant answered by general demurrer, special exceptions, and general denial, and further pleaded assumed risk and contributory negligence on part of deceased in that he knew the condition of the track and the character of engine. It was further alleged that he was running the engine at an excessive rate of speed in violation of rules of safety. The case was tried by a jury and .resulted in a verdict in favor of plaintiff for $7,551, and, from the judgment thereon rendered, this appeal is taken.

There are 157 assignments of error laid at the feet of the district judge; but only 22 of the assignments are briefed, and of these only 12 are strongly urged.

The first and thirteenth assignments complain that the verdict is excessive; but in view of another trial they will not be considered.

In the second, third, fourth, fourteenth, fifteenth, and sixteenth assignments the charge of the court on the measure of damages is assailed, and these will all be here treated together.

On the measure of damages, the court charged the jury as follows: “If under these instructions you should find the defendant liable, you will find in favor of plaintiff against defendant, as damages, such a sum as would be equal to the pecuniary benefit, if any, that plaintiff had a reasonable expectation of receiving from his deceased son had he lived; and by ‘pecuniary benefit’ is meant, not only money, but everything that can be valued in money, provided plaintiff cannot recover for sorrow caused by the death of his son or for the loss of his society.”

The Supreme Court held, in Ft. Worth & D. C. Ry. Co. v. Morrison, 93 Tex. 527, 56 S. W. 745, that a charge like this was incorrect ; Judge Williams using the following language: “The charge given required the jury only to find the amount of the pecuniary aid which the plaintiffs would have received from their son if he had not been killed, and assumed that such amount was fixed by law as the measure of damages. This took from the jury the right to consider the question whether or not a less sum paid now would compensate the plaintiffs for their loss of the aid which their son would have rendered, as he would probably have rendered it, during the whole of their lives. The right of plaintiffs was to recover compensation for the loss sustained, and such loss was of the aid or benefits which their son would have bestowed upon them. They are therefore to be compensated for the value of these, but are not to receive them as they would have received them from him from time to time throughout their lives, but by a lump sum paid now. Whether or not a less sum than that to which the son’s whole contributions would have amounted would compensate plaintiffs for the loss of such contributions as he would have made them was a question which should not have been taken from the jury by a charge which assumed that the compensation must necessarily consist of a sum equal in amount to that of such contributions. The jury should have been left free to determine, under all the circumstances, the sum which would compensate plaintiffs for the loss of the benefits having a pecuniary value which the son would have rendered to his parents. The charge given, without the submission of a further inquiry, was therefore insufficient and erroneous. The special instruction, though not so fully expressed as it might have been, sought to have the jury pass upon the question of compensation, which was the true one, and, with the general charge standing as it did, should have been given.”

Again the same kind of charge came before the Supreme Court in San Antonio Traction Company v. Bettie White, 94 Tex. 469, 61 S. W. 707. The trial court there instructed the jury that “plaintiff is entitled to recover whatever pecuniary aid she had a reasonable expectation of so receiving, if any,” just as in this case. Judge Williams, again speaking for. the Supreme Court, says: “The true measure of damages is compensation for the loss sustained by plaintiff from the death of her son, and what sum, allowed now, will give such compensation is a question for the jury under all the circumstances of the case. The plaintiff lost the contributions which her son would have made to her, but it does not necessarily follow that nothing short of an amount equal to the sum of such contributions, if paid now, would be compensation. We had occasion to pass upon this question in the case of Railway v. Morrison, 93 Tex. 527 [56 S. W. 745], and a charge in substance the same as that under consideration was held to be erroneous. In that case a special instruction was requested to submit a correct rule, but the charge of the court was held to be erroneous. As the error in this case was a positive one, it is assignable without the request of a special charge.”

While charges like the one given in this case were approved by this court before Ft. Worth & D. C. Ry. v. Morrison, supra, since that decision the rule there laid down has been followed. This was done in I. L. & P. Co. v. Maxwell, 27 Tex. Civ. App. 294, 65 S. W. 78, S. A. & A. P. Ry. Co. v. Waller, 27 Tex. Civ. App. 44, 65 S. W. 211, and G., H. & S. A. Ry. Co. v. Solcher, 110 S. W. 545; and the ease cited by appellee as sustaining, such a charge (Railway Co. v. Salisbury, 143 S. W. 252) does not do so. In that case the court charged the jury: “If you find for plaintiffs and allow them damages, you should award them such an amount as you believe, from the evidence, will compensate them for the pecuniary loss, if any, which you believe, from the evidence, they have-sustained by reason of the death of Joseph F. Salisbury” — and Judge James expressly states that said charge is in accord with the-rule adhered to in Railway v. Davis, 27 Tex. Civ. App. 279, 65 S. W. 217, and Railway v. Heard, 91 S. W. 371. This rule is that established in Railway v. Morrison, 93 Tex. 527, 56 S. W. 745, and Traction Company v. White, 94 Tex. 468, 61 S. W. 706. The case of C., R. I. & G. v. Groner, 51 Tex. Civ. App. 65, 111 S. W. 667, does not apply, because a special, charge was there given which removed the ■objection, if any, to the general charge, and. the Supreme Court doubtless refused a writ. on that ground. The Morrison Case enunciates the law on a charge of this kind. The • jury should pass upon what amount will compensate the plaintiff for the loss sustained, and the charge as given does not leave - them free to do so. The assignment is sus- ■ tained.

In the fifth, sixth, seventeenth, and eighteenth assignments of error, paragraphs 4 and 6 of the court’s charge are attacked. Those paragraphs of the charge are:

(4) “Now, if you find from a preponderance of the evidence in this case that defendant’s railroad track and roadbed, at the place where Harvey E. Jenkins was killed, was not in a reasonably safe condition for the operation of such a locomotive as the one he was using at the time of his death, and by the use of ordinary care defendant could have had its track and roadbed in a condition that was reasonably safe for such a locomotive as this one, and such unsafe condition of the track for such an engine as this was the proximate cause of the derailment of the locomotive and death of the engineer, the defendant company is liable.”
(6) “And you are also instructed that if you find from a preponderance of the evidence defendant company did not exercise ordinary care as to the kind of engine with which it supplied said Harvey E. Jenkins, and, on account of the manner in which the locomotive was constructed, it was dangerous to run it along the place where it was derailed, though the track was in a reasonably safe condition at that place, and, if you further find from a preponderance of the evidence that the engineer who was killed, in the exercise of ordinary care, did not know that it was dangerous to run such an engine along the track at said place, and at the time of the wreck he was using ordinary care in the handling of the locomotive, but, on account of the manner in which it was constructed, the locomotive became derailed and thereby caused the death of the engineer, the defendant company is liable.”

The point is raised that the charge as given would authorize a recovery against appellant whether the evidence showed that deceased would have contributed anything to appel-lee.

There is no right of recovery in a case like this except as given by statute. R. S. arts. 4698-4704. Mr. Justice Fly, in Texas & N. O. Ry. Co. v. Brown, 14 Tex. Civ. App. 700, 39 S. W. 142, said: “The action for damages arising from a death caused by the negligence of another is statutory, the object and aim of which is to compensate those authorized to bring the suit for a pecuniary loss sustained by them; and it follows that, to entitle them to recover, it must be shown that a pecuniary loss was sustained. It is not a question as to the right of an adult to bring the suit, as insisted by appellees, for he undoubtedly has the right; but, when he institutes the suit, he, like the minor, must show that he has been pecuniarily damaged in order to recover.”

It is insisted that the eleventh paragraph of the charge does not cure the omission, and that it places the burden of proof on defendant It runs like this: “But if you should find from the preponderance of the evidence that defendant used ordinary care to have its roadbed and track in a condition that was reasonably safe for the passage of such locomotive as that by which Harvey Jenkins was killed, when running at a reasonable speed for such a locomotive as this one was, or if you should find that at the time of the wreck the engineer was running the engine at an unusually high and dangerous speed for such a type of engine as this, and the engine was derailed by such high speed, or if you should find that plaintiff has no reasonable expectation of receiving any pecuniary benefit from the deceased, had he lived, in any such case you shall return a verdict in behalf of the defendant. ⅞ ⅜ * ”

An omission in one part of a charge may be cured by a proper charge elsewhere therein; and the charge must be construed as a whole. But the charge, taken as a whole, must correctly present the law of the case.

We think it was error for the charge to place the burden, of showing that deceased would not have contributed to plaintiff, on the defendant. If that were true, then, without offering any proof that his son would have contributed to his support, the plaintiff would have been entitled to nominal damages. This should be made plain' in the charge on another'trial. G., C. & S. F. Ry. Co. v. Williams et al., 39 S. W. 967; Mo. Pacific Railway Company v. Henry, 75 Tex. 224, 12 S. W. 828.

“Where an accident happens upon a railway from which a passenger sustains an injury by the breaking down of the carriage, or by the running off of the train, or by the spreading or breaking of the rails, the very nature of the occurrence will be prima facie evidence of negligence in the company or its servants.” Hutch. Carr. § 800; Mex. Cent. Ry. Co. v. Lauricella, 87 Tex. 279, 28 S. W. 277, 47 Am. St. Rep. 103.

As to the acts of negligence on part of appellant, the charge would not be objectionable as placing the burden of proof on the company, but it is erroneous in telling the jury that defendant must show, by a preponderance of the evidence, that the son would not have contributed to the father’s support. That is affirmative proof, which plaintiff must offer. What we have said will dispose of the fifth, sixth, seventeenth, and eighteenth assignments of error.

There is no merit in the seventh and nineteenth assignments of error, which are on the same question, and they are overruled.

The eighth, ninth, tenth, and twentieth assignments complain of the action of the trial court in refusing to suppress various depositions, “because the notary public before whom this deposition was taken did not make the proper certificate upon the outside of the envelope in which the deposition was returned, as required by law, inasmuch as lie fails to certify, under the seal of liis office, that lie was the officer before whom the depositions were taken, and that he, in person, deposited them in the mail for transmission; said notary public having totally failed and neglected to place the imprint of his seal of office upon the envelope.” The qualification of the bills by the trial court shows that the omission of the seal from the outside of the envelope was the sole ground of complaint. We are referred to the case of Hartford Fire Ins. Company v. Becton, 124 S. W. 474, where Chief Justice James considered this question. It was there said that it was unnecessary to decide the question. But that same case went to the Supreme Court on an application for a writ of error, and Justice Williams took up and treated the point at some length. 103 Tex. 237, 125 S. W. 883. The. Supreme Court was confronted with the decision in Wisegarver v. Yinger, 122 S. W. 925, wherein Chief Justice Eisher had held that the imprint of the seal on the envelope was essential ; and, after a careful analysis of the statutory requirements, it is said by Judge Williams: “We therefore hold that the absence of the seal on the envelope is not a reason for suppressing a deposition where the signature to the certificate is elsewhere on the same deposition authenticated by seal.” This may be found where the officer certifies to the deposition proper. These assignments are overruled. '

We have examined the eleventh and twenty-first assignments, which are without merit and are overruled.

By the twelfth and twenty-second assignments appellant complains of the action of the trial court in refusing to permit it to show by the witness Bryden that the day before the wreck the deceased was running his engine at a high rate of speed. The court qualifies the bill by saying that the place at which it was proposed to show that deceased was going at a high rate of speed the day before the wreck was 12 or 14 miles away from the place of the accident. It has often been held that other acts of negligence (Railway Co. v. Ives, 31 Tex. Civ. App. 272, 71 S. W. 772), or other acts of drunkenness (Browne v. Bachman, 31 Tex. Civ. App. 430, 72 S. W. 622), cannot be shown (Railway Co. v. Johnson, 92 Tex. 380, 48 S. W. 568; Railway Co. v. Parrott, 43 Tex. Civ. App. 325, 94 S. W. 1135, 96 S. W. 950; Railway Co. v. Gillespie, 48 Tex. Civ. App. 56, 106 S. W. 707; Railway Co. v. Kennedy, 51 Tex. Civ. App. 466, 112 S. W. 339). Even if such testimony had. been admitted, it would not probably have changed the result. But we do not think the court erred, and these assignments are overruled.

But, in view of what we have heretofore said, the judgment is reversed, and the cause remanded.