author: KEY, C. J.

text:
    POWELL v. STEPHENS et al.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.
    On Motions for Rehearing, Feb. 11, 1914.)
    1. Mortgages (§ 290) — Mortgaged Prop*-erty.
    When a mortgagor makes successive sales of different portions of the mortgaged premises, and subsequent purchasers have either actual or constructive notice of prior sales, equity will require the tracts of land to be sold in the inverse order of their alienation when the mortgage lien is foreclosed.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 791-805; Dec. Dig. § 290.]
    2. Mortgages (§ 290) — Mortgaged Property.
    When a mortgagor reacquires a portion of the land which he has sold, those who have purchased from him after he sold the land so reacquired have the right to have the reacquired tract first sold on foreclosure of the mortgage.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 791-805; Dec. Dig. § 290.]

      3. Vendor and Purchaser (§ 231) — Bona Fide Purchasers — Constructive Notice-Records.
    Subsequent purchasers of parts of a tract of mortgaged property are charged with constructive notice of the rights of previous purchasers, whose conveyances are of record, to have the lands alienated last first sold for the satisfaction of the vendor’s mortgage.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. § 231.]
    4. Mortgages (§ 291) — Rights oe Parties.
    The owner of a large tract of land, which was subject to a mortgage, conveyed part of the property to one Vanhoose, receiving vendor’s lien notes in payment. These notes he pledged to secure a debt. Afterwards Vanhoose re-conveyed to the mortgagor upon condition that the notes be canceled. Thereafter the mortgagor agreed to assign the Vanhoose notes to intervener, if she would lend him money to redeem them. While the mortgagor did not use the monev borrowed from intervener to redeem the notes from his creditor, he subsequently redeemed them, and delivered them to intervener. Held that, as the pledgee of the notes could have insisted, as against subsequent purchasers, that their land should first be sold to satisfy the common mortgage, and as the mortgagor had the right to make the contract he did, inter-vener, upon foreclosure of the original mortgage, may demand that the lands last alienated be first sold to satisfy it.
    [Ed. Note. — For other cases, see Mortgages, Dec. Dig. § 291.]
    5. Mortgages (§ 290) — Rights oe Parties.
    The fact that intervener’s money was not used in defraying the mortgagor’s debt for which the vendor’s lien notes were pledged, and that, when intervener acquired her rights, the deed reconveying the land to the mortgagor was of record, will not impair them, particularly where it did not appear that subsequent purchasers changed their position, or paid out any money upon the assumption that such deed vested in the mortgagor the absolute title to the land.
    [Ed. Note. — For other cases, - see Mortgages, Cent. Dig. §§ 791-805; Dee. Dig. § 290.]
    Appeal from District Court, -Coleman County; John W. Goodwin, Judge.
    Action by W. H. Stephens and others against E. E. McClain, in which Mrs. M. E. Powell intervened. From the judgment, the intervener appeals.
    Reversed and remanded, with directions.
    See, also, 151 S. W. 333.
    C. L. McCartney, of Brownwood, for appellant. T. C. Wilkinson, of Brownwood; and Critz & Woodward, Woodward & Baker, Snodgrass & Dibrell, and Weatherred & McDaniel, all of Coleman, for appellees.

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

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

   KEY, C. J.

W. H. Stephens, as assignee of the Drought & Co. notes and mortgage, brought this suit against E. E. McClain and all subsequent purchasers under him, seeking a recovery upon the notes and a foreclosure of the mortgage lien. Some of the defendants did not answer; others did, but it is not necessary to state anything more concerning the pleadings, except to say that the answer of Mrs. Powell, who alone has appealed, raised the issue and presented the contention that she was substituted, by contract and subrogation, to the rights of Walker, Smith & Co., as to four of the vendor lien notes against the land held by them as collateral security. With the foregoing preliminary statement, and reserving the right to add thereto, if deemed necessary, we copy the following statement from appellant’s brief, which is substantially correct:

“E. E. McClain was the owner of 1,476 acres of land out of the Joseph "Leflore survey in Coleman county, Tex., and on the 1st day of August, 1906, McClain and wife executed a deed of trust in favor of H. P. Drought & Co. to secure four notes for $200 each, and one note for $2,700, together with some smaller interest notes. Two of these notes were paid; the remainder of the notes, together with the lien securing same, were transferred by H. P. Drought & Co. to W. H. Stephens, who brought suit to foreclose the lien on said notes. Subsequent to the execution of this trust deed McClain sold off this tract of land in small quantities to different purchasers, as follows:
“On August 24, 1906, he'conveyed to P. D. Vanhoose 250 acres, and retained a lien on this 250 acres to secure the payment of ten purchase-money notes for the sum of $250 each, due October 1, 1907, and October 1st each year following for nine additional years.
“On September 25, 1906, McClain sold 192Vio acres to M. R. Cheatam, and retained a vendor’s lien to secure the payment of ten purchase-money notes of $110 each, due from one to ten years after date, respectively.
“On September 25, 1906, McClain sold to T. N. Monroe 100 acres out of said large tract, and retained a lien to secure the payment of five purchase-money notes aggregating $800.
“September 25, 1906, McClain sold and conveyed to J. J. and G. H. Vo well 200 acres out of said large tract, and retained a lien to secure eight notes for the sum of $200 each.
“November 1, 1906, McClain sold to T. T. Cooper 100 acres out of said larger tract, and retained a lien to secure ten notes for $66.-66⅝ each.
“October 12, 1906, McClain conveyed to J. M. Garner 274 acres out of said larger tract, and retained a lien to secure ten notes for the sum of $178.16½ each.
“November 1, 1906, McClain sold to J. S. Gibbens 200 acres out of said larger tract,' and retained a lien to secure ten notes for $133.33½ each.
“The M. R. Cheatam notes became the property of W. N. Cañieron, who sought to foreclose same in this cause. The Monroe notes were transferred to W. H. Stephens, who sought to foreclose two of them in this cause. Stephens likewise became the owner of five of the Vowell notes, and sought to-foreclose same in this cause. Mrs. Anna Boog-Seott became the owner of eight of the Cooper notes, and sought to foreclose same in this cause. W. H. Stephens became the owner of five of the Garner notes, and sought to foreclose same in this cause. Mrs. Anna Boog-Seott became the owner of eight of the Gibbens notes, and sought to foreclose same in this cause.
“After P. D. Vanhoose bought said 260 acres on the 1st day of January, 1907, he conveyed ii to J. H. Quinn, and Quinn assumed the payment of the ten notes executed by Vanhoose for the original purchase money. On December 1, 1907, J. H. Quinn conveyed this 250 acres to Joe Toland and E. E. McClain, and said deed recited as consideration therefor the cancellation of the notes given by Vanhoose to McClain on the 24th of October, 1906.
“On the 16th day of April, 1908, E. E. McClain conveyed to Joe Toland his interest in the Vanhoose tract of 250 acres, and said deed contained a recital that Joe To-land assumed all the indebtedness against said 250 acres. On January 29, 1908, E. E. McClain executed a deed of trust in favor of Mrs. M. E. Powell on said Vanhoose tract of 250 acres to secure Mrs. Powell in the payment of a note for $1,050, executed by the said McClain to the said Mrs. Powell, which note was sued upon by Mrs. Powell in said cause.
“On February 17, 1909, Joe Toland executed a deed of trust on this Vanhoose tract in favor of the Coleman National Bank, to secure a note for $2,500, due 90 days after date. The Coleman National Bank sold said 250 acres under its deed of trust, and purchased same thereunder on the 4th day of April, 1911.
“Prom the year 1906 up to the year 1909, E. E. McClain was indebted to Walker, Smith & Co. for merchandise in the sum of about $2,800, and to secure said indebtedness McClain indorsed over to Walker, Smith & Co. the ten Vanhoose notes for $250 each; said indorsement and delivery being somewhere between September 27, 1906, and May, 1907. McClain paid $1,600 on the Walker-Smith indebtedness on the 15th day of March, 1909, and on the 1st of November, 1909, he paid the balance, amounting to $1,700, and Walker, Smith & Co., delivered back to McClain these Vanhoose notes which had been held by them as security, and this delivery back to McClain was made after December 31, 1909.
“The $1,050 was loaned by Mrs. Powell to McClain on January 29, 1908, and prior to the actual loan of the money on that date it was agreed by and between McClain and Mrs. Powell that the latter should have four of the Vanhoose notes to secure her in the payment of the loan of $1,050. When McClain negotiated with Mrs. Powell, for the loan, he represented to her that the Vanhoose notes were pledged, and that he wished to borrow $1,050 from her to redeem these notes, and, when they were redeemed, she should hold the first four of said notes for $250 each to secure her for said loan. Mrs. Powell relied upon this representation and promise, and would not have made the loan but for same. As a matter of fact the money obtained from Mrs. Powell was not used by McClain to redeem the Vanhoose notes from Walker, Smith & Co. He did not redeem said notes and get them back for more than a year after he secured this $1,-050 from Mrs. Powell, and did not actually deliver them to Mrs. Powell until the winter or early spring of 1911. When McClain agreed with Mrs. Powell that she should have the Vanhoose notes ⅛ secure her on the note for $1,050, the 250 acres of land for which the Vanhoose notes were given had been reconveyed, and the title vested in Joe Toland and E. E. McClain jointly, and recited a cancellation of the Vanhoose notes; but the Vanhoose notes at the time of said reconveyance were actually in the hands of Walker, Smith &'Co., and held by them as security for McClain’s indébtedness. Mrs. Powell had no actual notice of this recon-veyance or the attempted cancellation of said notes; the only notice to her, if ^my, being the recording of the deed. The indebtedness of McClain to Mrs. Powell was never paid, which at the time ' of the judgment herein amounted to $1,575, and was secured by the deed of trust given in her favor on said 250 acres of land and by (the pledge of the four Vanhoose vendor’s lien notes.
“The foregoing statement is taken from the court’s findings of fact.
“Two issues of fact were by agreement of all parties submitted to a jury, and all other issues of fact were submitted to the court, and in response to those submitted to a jury they found that it was agreed between McClain and Mrs. Powell that the' latter should have four of the Vanhoose notes as security for said loan, and that said agreement was made prior to the execution of said note for $1,050.
“The trial court in his conclusions of law held that the undivided one-half of the Van-.hoose 250 acres, upon which Mrs. Powell held her liens, should first be sold to satisfy the H. P. Drought & Co. deed of trust, and that the other tracts hereinbefore referred to should be sold off in the inverse order of their alienation. And judgment was rendered in favor of W. H. Stephens for $4,653.30, with foreclosure of the H. P. Drought & Co. lien on the entire 1,476 acres, and ordering the Vanhoose tract, upon which Mrs. Powell claimed her lien, to be first sold before any of the remainder of said tract was sold.
“The findings Of fact in favor of Mrs. M. E. Powell are based upon her pleadings filed in the case, she having pleaded that she loaned said money to McClain on the faith of the aforesaid representations, and that she acquired all outstanding rights and equities in said Vanhoose vendor’s lien notes, and asked that the same be foreclosed, and that said 250 aeres be last sold under the foreclosure of the H. P. Drought & Oo. deed of trust.
“The defendant Mrs. M. E. Powell in due time filed her motion for new trial, setting up as grounds for a new trial all the matters cohered by the hereinafter mentioned assignments of error. This motion was overruled on the 4th day of May, 1912, to which Mrs. M. E. Powell duly excepted, and gave notice of appeal to this court as provided by law. Appeal bond was filed and appeal perfected May 20, 1912.”

No statement of facts has been brought up, and the appeal is submitted on the findings of fact by the court and jury.

Opinion.

Appellant assigns as error the action of the trial court in decreeing that an undivided half' interest in the Vanhoose 250 acres of land should be first sold for the purpose of paying off the judgment rendered in favor of the plaintiff upon the prior mortgage debt against the entire tract, and in not holding and decreeing that appellant’s lien was superior to the rights of the subsequent purchasers from McClain, and requiring the lands so purchased by them to be first sold in satisfaction of the plaintiff’s mortgage. Controverting the foregoing contention, it is insisted on behalf of appellees that, inasmuch as the Vanhoose land had been reeonveyed to McClain in consideration of the latter’s cancellation of the Vanhoose notes prior to the time appellant made her contract with and loaned her money to McClain, and as the money so loaned was not used by McClain to pay his indebtedness to Walker, Smith & Co., and thereby redeem the Vanhoose notes from pledge, the court ruled correctly when it held that the appellees who purchased from McClain subsequent to the purchase made by Vanhoose were entitled to have an undivided half interest in the Vanhoose trapt first sold for the purpose of paying off the original mortgage upon the entire tract.

After extended and careful consideration of the case, we have reached the conclusion that the contention urged on behalf'of appellant is correct. It is well settled in this state, and perhaps in all other jurisdictions where equity is administered, that, where a mortgagor makes successive sales of different portions of the mortgaged premises, and subsequent purchasers have either actual or constructive notice of prior sales, when the mort-gagiee goes into court to enforce his lien equity requires that the respective tracts be sold in the inverse order of their alienation. That doctrine was announced as early as Ayres v. Cayce, 10 Tex. 101, and has been repeatedly applied in subsequent cases. It is also well settled in this and other states that, when such a mortgagor reacquires a portion of the land which he has sold, those who have purchased from him after he sold the land so reacquired have the right, as against him, to have the reacquired tract first sold in satisfaction of the mortgage. But in this case, at the time the Vanhoose tract was reconveyed, to McClain, the Van-hoose notes were pledged to Walker, Smith & Co., and they were secured by a prior lien upon the land, which was not affected by the transaction between McClain and Van-hoose which resulted in Vanhoose’s recon-veying to McClain the land in consideration of McClain’s cancellation of the notes so pledged. Therefore at the time of the transaction between Mrs. Powell and McClain, in so far as the rights of Walker, Smith & Co. were concerned, and for the purpose of securing McClain’s indebtedness to them, the Vanhoose notes were not canceled, and constituted a valid prior lien against the land. The question then arises, did McClain have the power, as against the rights of those who purchased from him subsequent to his sale to Vanhoose, to enter into a contract with Mrs. Powell, the effect of which would be, as soon as the Vanhoose notes were redeemed from Walker, Smith & Co., to vest in her similar rights to those held by Walker, Smith & Co. in four of the Vanhoose notes? If he had the power to accomplish that result through the medium of a contract with Mrs. Powell we think the. facts show that he did so, and that Mrs. Powell is not required to invoke the doctrine of subrogation in order to sustain her contention. It then becomes pertinent to determine what were the rights of such subsequent purchasers. When they purchased, they had notice of the fact that McClain had previously made a sale to Vanhoose, and the law charged them with notice of the fact that, when the original mortgage against the entire property was enforced, it would be the right of Vanhoose, or those holding under him, to have the land which the subsequent vendees were purchasing first sold in satisfaction of the mortgage, unless it should thereafter be reacquired by McClain free from the intervening rights and equities of all other persons. And it must also be kept steadily in mind that, after such subsequent purchases were made, those purchasers had no further dealings with McClain, and acquired no rights or equities upon the assumption that he had reacquired and become the absolute owner of the Van-hoose land.

Keeping these facts in mind, it seems to us that it must necessarily be held that the subsequent purchasers referred to who are now contesting the claims of Mrs. Powell, appear without any equities in their favor, and therefore have no right, either legally or equitably, to object to Mrs. Powell’s being substituted to all the rights which Walker, Smith & Co. held against McClain, whether such substitution be the result of contract or subrogation. And, this being true, we think the case must be decided in favor of Mrs. Powell. In other words, we think the facts found by the court and jury show that a contract was made between McClain and Mrs. Powell, by which it was intended by both parties that the rights which Walker, Smith & Oo. had in the four Vanhoose notes should be vested in Mrs. Powell, and that McClain would take whatever steps were necessary to accomplish that result; and, such being the contract, Mrs. Powell has the right as against McClain, Walker, Smith & Co., and the subsequent purchasers from McClain, to have that agreement enforced, notwithstanding the fact that McClain, in violation of his promise, did not apply the money received from Mrs. Powell to the redemption of the Vanhoose notes, but used it for some other purpose. If, after the Vanhoose land was reconveyed to McClain, the subsequent purchasers referred to had taken a mortgage from McClain thereon, or for a valuable consideration had acquired any other equity therein, then they might have the right to object to any contract between McClain and Mrs. Powell, the result of which would impair the equity so acquired by them; and they might also be in a position to contend that Mrs. Powell was not subrogated to the rights of Walker, Smith ¿fe Co., because of the fact that the money furnished by her was not used in redeeming the Vanhoose notes.

As to the latter point, it is not deemed necessary to make any definite ruling, because, as said before, as the complaining appellees have no equities, Mrs. Powell has the right to enforce the contract which she made with McClain. And this right is independent of the question of subrogation, and arises out of and flows from the terms of the contract between McClain and her. The facts show that McClain finally paid the debt for the security of which the notes had been pledged to Walker, Smith ¿fe Co., thereby redeeming them, and thereafter, in pursuance of his contract with Mrs. Powell, he delivered to her four of the notes, each of which retained a vendor’s lien on the land in question.

Mrs. Powell asserted her rights under the contract referred to, and sought to have the lien secured by the notes established in her favor, and she now contends, and we sustain the contention, that, as against those who purchased after Vanhoose, it is her right to have the lands so purchased first sold for the purpose of satisfying the original mort-. gage, which was foreclosed in favor of the plaintiff.

In appellees’ brief some stress is laid upon the fact that at the time Mrs. Powell acquired her rights the deed reconveying the land to McClain, and reciting a cancellation of the Vanhoose notes, was of record, and therefore, so it is contended, she was charged with constructive notice of that instrument. Conceding the fact of such notice, we fail to see its materiality in determining the rights of the parties. As said before, it was not shown that the objecting appellees had paid out any money, parted with anything of value, or acquired any equities upon the assumption that the deed referred to vested in McClain absolute title to the land; and, such being the case, they had no right to object to the contract between Mrs. Powell and McClain, which contract does not impair any right they had at the time it was made. At that time the Vanhoose notes were outstanding charges against the land for the purpose of securing a particular debt owing by McClain, and it works no injury to the appellees for that security to be shifted from one of McClain’s creditors to another, and that is all that Mrs. Powell is asking to have done. If, when McClain paid his debt to Walker, Smith ¿fe Co., the latter had assigned the notes to Mrs. Powell, or if he had used the money loaned him by her for the purpose of paying Walker, Smith ¿fe Co., as he agreed to do, there could have been no question about her right, as against the objecting appellees, to enforce the lien by which those notes were secured; and we hold that McClain had the power, as against the rights of said appellees, to make a contract which would have the same result, and we also hold that such contract was made.

So we conclude that so much of the judgment and decree of the trial court, as required an undivided half interest in the Vanhoose 250-acre tract of land first sold for the payment of the judgment rendered in favor of the plaintiff Stephens should be set aside, and judgment here rendered requiring all of the other tracts of land referred to in the decree to be sold for the purpose referred to before the sale of any of the Vanhoose tract; and it is so ordered.

Reversed and reformed.

On Motions for Rehearing.

Several of the appellees in this case have filed motions for rehearing, all of which have been duly considered, and the conclusion reached that they should be overruled. Ap-pellees Mrs. Boog-Scott and W. H. Stephens present the contention that, inasmuch as they acquired certain vendor’s lien notes given for the purchase money of some of the subdivisions of the tract of land that was sold by McGlain after the deed by which a half interest in that tract had been conveyed back to McOlain, therefore, as between them and Mrs. Powell, the appellant, they are entitled to protection as innocent purchasers, or bona fide holders for value, and without notice. We stated in our original opinion that the record failed to show that the appellees had paid out anything of value upon the faith of the deed referred to, or had otherwise acquired any equities as against Mrs. Powell, and a re-examination of the record confirms that statement. In the first place the appel-lees ref erred, to did not assert any such right of equitable protection in tbeir pleadings, and in the second place the record fails to show such facts as would render such plea available. It fails to show that the ap-pellees referred to paid out any money or parted with anything of value in order to acquire the ownership of the notes upon which they seek to base their superior equity, nor does it show that they did not in fact have actual knowledge, before and at the time they acquired the notes referred to, that Walkér, Smith & Co. held some of the original purchase-money' notes against the Vanhoose tract. Furthermore, even if the complaining áppellees were misled by the conduct of McClain and Quinn in putting on record a deed reciting the fact that the purchase-money notes referred to were canceled, we fail to perceive how that fact could affect Walker, Smith & Co., or any one else who had been substituted to their rights.

In the motion for rehearing filed by the Coleman National Bank (which bank took a deed of trust on the Vanhoose tract after the deed had been recorded conveying that tract back to McClain and Joe Tolson, and purchased the land when it was sold under that deed of trust) it is contended that the bank is entitled to protection as an innocent purchaser, because (1) the appellant, Mrs. Powell, acting by her attorneys, has filed an agreement'admitting that the rights of the bank are superior to the rights of appellant, and (2) because the findings of the trial court show that the bank is a bona fide purchaser for value, and entitled to protection as such. As to the first point, the transcript in this case is voluminous. We find nothing in the index indicating that it' contains the written agreement referred to, and counsel for the bank' have failed to refer to any page of the transcript showing the existence of such agreement, arid, if such agreement was contained in a separate paper, and filed in this court, we have no recollection of ever seeing it, and.it cannot now be found with the record. When we look to the facts, the bank is about in the same condition as the other appellees who are claiming protection as bona fide holders for value. The findings of fact do not show that the bank parted with anything of value on the faith of the deed which recited a cancellation of the original Vanhoose notes, nor do such findings show that the bank did not have actual knowledge of the fact that the notes were then held by Walker, Smith and Co., and could not be canceled by the execution and registration of the deed referred to. Under the four Van-hoose notes which were delivered by McClain to Mrs. Powell in pursuance of his contract, she acquired the lien on the entire Vanhoose tract by which those notes were secured to the extent of her debt, but no further; and that lien is superior to the rights of all other litigants except those of the appellee W. H. Stephens, which are founded upon the original blanket mortgage lien upon the entire -1,476 acres. As to that lien upon the entire tract, the rights of appellee Stephens are superior to those asserted by Mrs. Powell, as well as all the other litigants; but the rights asserted by Stephens under purchase-money notes given for certain subdivisions of the entire tract, which were subsequently conveyed by McClain to certain purchasers, are inferior, and must yield to the superior right of Mrs. Powell growing out of her contract with McClain by which she was, in effect, substituted to the rights of Walker, Smith & Co. in the Vanhoose purchase-money notes.

After our former opinion was written, and judgment rendered in accordance with it, this court, of its own motion, set that judgment aside, and rendered judgment reversing the case, with instructions to the trial court to render a judgment in conformity with the views expressed in this court’s opinion, and that judgment will be permitted to stand. However, we deem it proper to say that, if the parties should agree upon a different judgment, the court will have the power to render the judgment so agreed upon, regardless of the fact that the case is reversed with instructions.

Motions ■ for rehearing overruled.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    INTERNATIONAL & G. N. RY. CO. v. KRUGER.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1914.
    Rehearing Denied Feb. 21, 1914.)
    1. Trial (§ 191) — Instructions — Assuming Facts.
    It is reversible error for the trial judge in his charge to assume the existence of any material disputed fact, since to do so is an invasion of the province of the jury.
    [Ed. Note. — For other cases, see Trial, Cent. §§ 420-431, 435; Dec. Dig. § 191.]
    2. Trial (§ 191) — Instructions — Assumption op Facts.
    In an action against a railroad company for injuries to plaintiff’s wife while boarding a. train, a charge that, if the defendant negligently caused the train to move with a jerk while plaintiff’s wife was attempting to climb upon the car steps, to find for plaintiff, was not on the weight of the evidence in assuming that the train moved suddenly.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    3. Appeal and Eeeoe (§ 216) — Presentation op Grounds of Review in Court Below— Necessity.
    Where no correct charge was requested, the giving of a confusing charge is not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216; Trial, Cent. Dig. § 629.]
    4. Caebiers (§ 321) — Carriage op Passengers — Actions—Instructions.
    In an action for damages for injuries to plaintiff’s wife, who was thrown down by a lurch while attempting to board defendant’s train, a charge that unless plaintiff’s wife had a ticket, and unless she was attempting to hoard the car at the time of the accident, to find for defendant does not require the jury to find that plaintiff’s wife had no ticket, and was not board-' mg the car at the time of the accident, before finding for defendant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by John Kruger against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Morrow & Morrow, of Hillsboro, and Neff & Taylor, of Waco, for appellant. Wear & Frazier, of Hillsboro, for appellee.

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

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig.- Key-No. Serifes & R'ep’r Indexes

   RASBURY, J.

Appellee sued appellant for damages for personal injuries alleged to have been inflicted upon his wife while she was boarding appellant’s train and while in the passageway of one of appellant’s cars making her way to a seat, the ground of negligence being that while proceeding, as detailed, the train was carelessly and negligently moved with a sudden jerk or lurch, throwing his said wife in the first instance against the iron bars of the car steps, and in the second instance against the walls of the passageway, seriously and permanently injuring her. Appellant met the allegations of negligence by the general denial and plea of contributory negligence. Upon trial there was verdict for appellee for $1,375, followed by judgment, from which this appeal is taken. The recital of the facts constituting the ground of negligence is a sufficient statement of facts for intelligent disposition of the issues involved in the appeal.

The first error assigned complains of the manner of submitting the alleged ground of negligence, the criticism being that the charge assumed that the train moved suddenly on both occasions as alleged, and assumes that Mrs. Kruger was thrown against the iron bars and the walls of the car as alleged. It is, of course, well settled that it is reversible error for the trial judge in his charge to assume the existence of any material disputed fact, since to do so is an invasion of the province of the jury, to whom the parties have submitted the solution of all conflicts in the testimony.

Hence, under the rule, our duty narrows to an analysis of the charge in order to determine the applicability of the criticism. Omitting the formalities in the charge, the court, in substance, instructed the jury, “Now, if you believe from a preponderance of the evidence that while Magdalene Kruger was attempting to climb upon said [ear]' steps the defendant negligently and carelessly caused said train to move suddenly with a jerk or lurch,” etc., to find for appellee. We are unable to see how it can intelligently be said that the charge quoted assumed that ! the car moved suddenly, as maintained by the proposition in the brief. The most that can be said by way of criticism is that the court might have-told the jury, if they believed the car moved suddenly with a lurch or jerk, and such sudden movement was negligence, to find for appellee, etc. Such a method might have been preferable, but at the same time we are not prepared to say that it is not just as clear to say that “the defendant negligently and carelessly caused the train to move suddenly with a jerk or lurch,” since to find that the car was negligently and carelessly moved suddenly involves a finding that it was in fact moved. In like manner do we believe that the criticism which asserts that the charge assumed that Mrs. Kruger was in fact thrown against the wall is without force. Condensed, that portion of the charge is: “Now, if you believe from a preponderance of the testimony that after said Magdalene Kruger had gotten aboard said train and had started in the coach the defendant carelessly and negligently caused said train to move or carelessly and negligently caused said train to lurch or jerk and throw said Magdalene Kruger against the side of the "car, then you will find for plaintiff,” etc. Aside from what we have just said we are of opinion that the charge does not assume the existence of any material fact, but, on the contrary, submits to, and requires, the jury to find that the car moved suddenly, that such movement was negligence, and that Mrs. Kruger was, as a result of the movement and negligence, thrown against the wall of the car, before they are permitted to find a verdict for ap-pellee. All the facts submitted by the charge were to be found by the jury if from a preponderance of the testimony they believed thém to be true. Any fact to be believed and ascertained by the jury is not, of course, assumed to be true. Railway Co. v. Casseday, 92 Tex. 527, 50 S. W. 125; H. & T. C. Ry. Co. v. Oram, 92 S. W. 1029.

The next complaint is directed to the manner of presenting to the jury the converse of the negligence alleged in the petition; the exact point being that the court’s charge is confusing. The court, in presenting appellee’s side of the case, recited the facts relied upon by appellee as constituting negligence, and told the jury, if they believed same to be true, to find for appellee. The court then undertook to present for appellant affirmatively the negative of the issues raised by appellee’s testimony, instructing them that “unless you believe from a preponderance of the evidence,” etc., reciting again the identical facts presented on behalf of appellee, to find for appellant. If it can be said that the charge is' confusing because it does not intelligently and understanding^ present affirmatively the negative of the issue raised by appellee’s evidence, yet it is not- reversible error, since the record fails to disclose that appellant sought to have a correct charge submitted to the jury. However, while the proposition does not urge the point, it is argued, and perhaps most strongly relied upon as error, that the charge under discussion is confusing for the reason that it required the jury to find that Mrs. Kruger did not have a ticket, and was not boarding the car at the time of the accident, both undisputed and admitted facts, before finding for appellant. While we think any error in the charge was waived for the reasons stated, at the same time we do not believe the construction contended for can be placed upon the charge, but just the reverse. The charge tells the jury that unless Mrs. Kruger had a ticket, and unless she was attempting to board the car at the time of the accident, etc., to find for appellant. Thus it will be seen that, instead of the jury being directed to find against an undisputed fact in order to find for appellant, as argued, they were compelled to find twice an undisputed fact before they could find for appellee, which is obviously favorable to appellant.

The nest error assigned is that the court erred in refusing appellant’s requested instruction peremptorily directing a verdict for appellant on the ground that the testimony failed to show that the movement of the train was unusual or careless. The proposition, in effect, is that a train motion usual and necessary is not negligence. The usual and necessary movement of a train might or might not, depending upon the facts and circumstances, be negligence, and negligence, when raised by the testimony, is of course a fact for solution by the jury. We have examined the evidence in the record, and, without setting it out or analyzing same, conclude that the issue of negligence was fairly raised, and that we are without authority to disturb the verdict of the jury on the ground that it is not sustained by the evidence.

The judgment is affirmed.


author: HIGGINS, J.

text:
    WEST v. CITY OF HOUSTON et al.
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 22, 1914.
    Rehearing Denied Feb. 26, 1914.)
    1. Easements (§ 36) — Burden of Proof-Freedom from Legal Disability.
    The burden of proof rests upon one asserting a prescriptive right of way over another’s land to show that the owners of the servient estate were free from disability during the prescriptive period.
    [Ed. Note. — Eor other cases, see Easements, Cent. Dig. ⅜§ 77, 78, 88-93; Dee. Dig. § 36.]
    '2. Municipal Corporations (§ 648) — Streets — Prescription — Permissive or Adverse Use.
    Where the public use of premises is permissive, there is no basis for a claim of a right of way by prescription.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1421, 1422; Dee. Dig. § 648.]
    3. Estoppel (§156) — Elements—Action Induced by Representations.
    In trespass to try title, a finding that an in-tervener would have purchased the property anyway, even if he had not thought it was a-corner lot fronting 100 feet on a certain street, as appeared from plaintiff’s concealment of the fact that it was not a corner, eliminated the essentials of an estoppel in pais in favor of in-tervener.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 142; Dec. Dig. § 56.]
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Trespass to try title by F. B. West against the City of Houston, in which Randon Porter and others intervened. Judgment for defendants, and plaintiff brings error.
    Reversed and remanded.
    L. B. Moody, of Houston, for plaintiff in error. W. F. Tarver, D. E. Garrett, Wilson, Dabney & Meachum, J. E. Niday, and J. C. Hutcheson, Jr., all of Houston, for defendants in error.

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

   HIGGINS, J.

Plaintiff in error filed this suit on May 30, 1908, against \he city of Houston in trespass to try title to recover a tract of land 80 feet square claimed by the city of Houston as a part of Travis street. The city answered by pleas of prescription, dedication, and estoppel, and other pleas not necessary to be here mentioned. Randon Porter and others owning property adjoining and abutting upon what is claimed by them to be Travis street in said city intervened in the cause, and prayed that judgment be entered in favor of the city. Plaintiff proved a record title to the controverted premises from the sovereignty of the soil.

The evidence offered under the plea of es-toppel showed that the property belonging to the intervener Porter was purchased by him from Mrs. Nora Mayer Hadley, a sister-in-law of plaintiff, and that Mrs. Hadley had purchased the same from plaintiff. It adjoins the property described in plaintiff’s petition, and in the deed from Mrs. Hadley to Porter is described as fronting 50 feet on Holman street and 100 feet on Travis street; but in the deed from plaintiff to Mrs. Hadley the land is described by metes and bounds, no mention being made of Travis street. Porter bought the land from Mrs. Hadley through the real estate firm of Paulfr'ey & Bradley by deed dated November 30, 1906. He gave the real estate agents a check for 8150, and obtained an earnest money receipt, in which the property is described as being 50 feet on Holman avenue by 100 feet on Travis street; Porter paid a total cash consideration of $4,700. He did not deal direct with Mrs. Hadley, but with said firm and with plaintiff, West, who closed the deal' in person for Mrs. Hadley. 'West received the checks for the purchase money, and delivered to Porter the tax receipts. West examined the earnest receipt and deed prior to their delivery to Porter. Up to the time the deal was closed nothing was said by West to Porter about his claim to the controverted premises. Porter testified that he would not have bought the property unless he had thought it was a corner, and he later built a sidewalk alongside of said property on what he thought was Travis street, and it was after the completion of this sidewalk that West attempted to fence in the controverted premises claimed by the defendant and interveners to be a part of Travis street.

Plaintiff admitted that the intervener Ball owned the west one-half of the land sued for, and asked judgment only for the east half thereof. The case was tried before a jury, and submitted upon special issues, in response to which the jury foqnd that West acted for Mrs. Hadley in closing the deal with Porter, and knew of the call in the deed for 100 feet frontage on Travis street, and that it was the duty of plaintiff to have notified Porter that the strip of land in controversy was not a portion of Travis street, but was the property of plaintiff, and that he purposely refrained from disclosing this fact to Porter, and that Porter thought the property he was buying had a frontage on Travis street of 100 feet. The jury further found that Porter would have purchased the property anyway, even if he had not thought that it was a corner lot fronting 100 feet on Travis street.. It was further found that the public entered upon the strip of land in controversy and used the same as a street for the ordinary purposes of a street for a period of more than 10 years prior to May, 1908.

Error is assigned to the action of the court in overruling plaintiff’s motion to enter judgment in his favor, and rendering and entering judgment against him, because of the insufficiency of the evidence; the proposition advanced being that, he having shown a perfect record title, and there being no evidence in the record to sustain any of the defenses except those of estoppel and prescription, and it appearing from the verdict that the defense of estoppel is unfounded, all issues were eliminated except the claim of prescription, and, the burden of proof being upon the defendants to show affirmatively that plaintiff and those under whom he claims were not under legal disability during the prescriptive period to resist the use by the public of the land in controversy for street purposes, and there being no evidence tending to show such fact, judgment should have been rendered in plaintiff’s favor. This contention must be sustained.

If the question were presented to us as an original one, we would not be inclined to so hold; but it seems to be settled in this state that the burden of proof rests upon one asserting a right of way over another’s land by prescription to establish the negative fact that the owners of the servient estate were free from legal disability during the prescriptive period, against whom a prescriptive right might be acquired by adverse use. City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563; Evans v. Scott, 37 Tex. Civ. App. 373, 83 S. W. 874; Wright v. Fanning, 86 S. W. 786; Dees Bros. v. Harrison, 95 S. W. 1093. In respect to the issue noted, the record is silent, and the judgment of the court, therefore, unsustained by the evidence.

It is further contended that in any event the verdict of the jury upon the issue of prescription is unsupported by the evidence, because it appears that the use by the public of the premises in controversy was permissive only, and not adverse. Where the use is merely permissive, and not adverse, there is no basis on which a claim of a right of way by prescription can rest; but it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way without interruption or substantial change for ten years. Cunningham v. San Saba County, 1 Tex. Civ. App. 480, 20 S. W. 941; Smith v. State (Cr. App.) 40 S. W. 736; Cockrell v. City of Dallas, 111 S. W. 977. We seriously doubt the sufficiency of the evidence in the particular noted to support a prescriptive right. Railway Co. v. Wilson, 83 Tex. 156, 18 S. W. 325; Cunningham v. San Saba County, supra.

But in view of the fact that a reversal is necessitated by the failure of the evidence to show that the parties against whom the right is asserted were sui juris during the prescriptive period, it becomes unnecessary for us to pass upon the sufficiency of the evidence in the other respect, and we refrain from a discussion thereof, since the cause must be retried.

There is no merit in the contention of defendants in error that the judgment should be affirmed upon the ground of an estoppel in Porter’s favor. The special finding that Porter would have purchased the property anyway, even if he had not thought it' was a corner lot fronting 100 feet on Travis street, eliminates the essential element of an estoppel in pais, that the party claiming the benefit of the estoppel must have been induced to act upon the representations or concealments relied upon as constituting an éstoppel. Neither did the contract of January 18, 1902, between Hutcheson and Har-grave constitute a complete and sufficient dedication of the property to the public as a street.

Reversed and remanded.


text:
    CLARK & SCHAEFFER v. GAAR-SCOTT & CO.
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 5, 1914.)
    1. Appeal and Eeeoe (§ 548) — Record—Review in Absence op Statement op Facts.
    Rulings upon tbe admissibility of testimony •will not ordinarily be reviewed in the absence of a statement of facts, except where testimony is excluded which appears to be material and relevant to the issue involved, and upon which the merits of the case depend; and hence, in an action for the price of a traction engine, an assignment of error in the exclusion of evidence as to a breach of warranty was entitled to consideration upon its merits.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    2. Appeal and Eeeoe (§§ 548, 690) — Admission op Evidence — Review in Absence op Statement op Facts — Sufficiency of Rec-OED.
    To entitle a party to a review of rulings upon the admissibility of testimony in the absence of a statement of facts, not only must the evidence excluded appear to be material and relevant to a material issue, but it must appear with reasonable certainty that error has been committed resulting in substantial injury to the complaining party; and hence, where the entire record is not before this court, it is unable to say whether the exclusion of material testimony was injurious.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440, 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. §§ 548, 690.]
    3. Appeal and Ekroe (§ 1031) — Review — Pbesumption in Support op Judgment.
    In an action for the price of a traction engine, with answer claiming damages for breach of warranty, where the plea of estoppel against such claim based on defendant’s failure to give the six days’ written notice required by the contract may have been conclusively shown to have been well taken by defendant’s own testimony, in which case error in excluding defendant’s evidence as to breach of warranty would have been harmless, the court, in support of a judgment for plaintiff, must indulge a presumption that it was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.]
    4. Principal and Agent (§ 148) — Authority — Limitation—'Warranty.
    In an action for the price of a secondhand traction engine, sold. under , a written contract excluding such machinery from the operation of warranties and stating that the seller’s agent had no authority to change its provisions as to warranty unless authorized in writing, evidence for defendant as to a warranty made by such ■agent was properly excluded.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 534-552; Dec. Dig. § 148.]
    Error from District Court, Harris County; Wm. Masterson, Judge.
    Action by Gaar-Scott & Co. against Clark & Schaeffer. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Byers & Jackson, of Alvin, for plaintiff in error. L. R. Bryan, of Houston, for defendant in error.

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

   HIGGINS, J.

Defendant in error brought this suit to. recover upon certain promissory notes executed by plaintiffs in error in part payment for a secondhand traction engine sold to them by defendant in error and for foreclosure of mortgage upon same. Defendants answered by a general denial, and specially pleaded a failure of consideration of the notes sued upon, in that the engine was sold under a guaranty that it would successfully pull four 12-inch gang plows in hog wallow land; that the engine was sold by and guaranty given by Paul W. Joplin, plaintiff’s agent in Houston; and that the same-wholly failed to perform the service guaranteed. By supplemental petition plaintiffs denied under oath “that the purported contract of September 16, 1910, attached as ‘Exhibit A’ to the defendant’s second amended original answer and cross-bill, was executed by this plaintiff or by any one having authority so to do, and specially this plaintiff says that the said Paul W. Joplin had no authority to execute said alleged contract for and in behalf of this plaintiff, Gaar-Scott & Co.’’’ In this connection it may be said that defendant’s answer in the record is their first amended original answer, and not the second,, and there is no such document attached thereto as is referred to in the sworn denial, nor does same elsewhere appear in the record. In the supplemental petition it was further averred that the engine was sold upon a written order, containing the following provisions : “As a condition hereof, it is fully understood and agreed that this order is-given subject to the acceptance of Gaar-Scott & Co., at its home office in Richmond, Indiana, and that no promise, whether of agent or employé or attorney, in respect to the payments, security or to the working or guaranty of the machinery named, will be considered binding unless made in writing and ratified by an officer of Gaar-Scott & Co., and that no representation made by any person as an inducement to give and execute this order, shall bind the company. * * * That the warranty on the back of this order does not cover secondhand machinery sold, and I hereby agree to accept such machinery just as it stands, without any warranty whatever. * * * Warranty. Caution: No person, unless authorized in writing from the home office, at Richmond, Indiana, by an officer of Gaar-Scott & Co., has any authority to add to, abridge or change this contract and warranty,' in any manner, and to do so' will render it void and of noneffect. * * * If, inside of six days from the day of its first use, any of the said articles of machinery shall fail in any way to fill this warranty, written notice (by registered letter) shall be given immediately by the purchaser to Gaar-Scott & Co., at their home office, at Richmond, Indiana, and written notice (by registered letter) also to the local agent through whom the same was received, stating particularly what part and wherein it fails to fill the warranty, and a reasonable time allowed to the company to get to the machinery with shilled workmen and remedy the defects, if any there be (if they be of such nature that the remedy cannot be suggested by letter) the purchases to render all necessary and friendly assistance and cooperation in making the machinery a practical success.” It was further averred “that such written contract was afterwards accepted by plaintiffs at its home office in Richmond, IncL, in its entirety as it was executed by the defendants and by plaintiff’s local agent, Paul W. Joplin, and that this plaintiff is not bound by any other or further warranty, terms, agreements, or conditions than those which appear in said written contract. Plaintiff further says that, if this plaintiff is to be held upon any warranty or guaranty as to said engine, then and in that event it says the defendants did not within six days from the day of the use of said machinery, nor at any other time, give written notice by registered letter, to plaintiff, Gaar-Scott & Co., at their home office, Richmond, Ind., nor give their written notice by registered letter, also, to said Paul W. Joplin, the local agent, through whom said machinery was received, stating particularly what part and wherein said machinery failed to fill the warranty, and that defendants continued to use said machinery after the expiration of six days from the day of its first use, and continued to use said machinery for more than thirty days thereafter. Wherefore plaintiff says that defendants, because .of all the aforesaid facts, are now estopped to claim the said machinery is not according to the contract, and that the same was not finally accepted by' them, and that they are not bound to pay said notes sued on.” Upon trial before a jury, a peremptory instruction was given in plaintiff’s favor, in accordance wherewith verdict was returned and judgment rendered.

There is no statement of facts in the record, and the only error assigned relates to the exclusion of testimony of the defendants Clark and Schaeffer and G. I. Huffman, by whom it was sought to be proven that “the defendants Clark and Schaeffer went to the office of Gaar-Scott & Co., in Houston, Tex.; that they found Mr. Paul W. Joplin in charge of the business of plaintiff local agent; that defendants contracted to purchase from plaintiff the engine involved in this suit and fixtures on the price and terms agreed on; that, prior to the closing of the contract, they had a conversation with Joplin as to whether or not the plaintiff would warrant the said engine to do certain work,' representing that they had hog wallow ground to plow; that they could make large contracts in Julieff or near Julieff in Texas for plowing; that said Paul W. Joplin assured defendants that the engine would successfully pull four 12-inch gang plows at an expense of not exceeding $16 per day; that, when defendants were presented with the contract attached to plaintiff’s pleadings to sign, they objected to signing it on account of the stipulations as now set up in plaintiff’s pleadings with reference to the warranties; that thereupon said Paul W. Joplin assured the defendants that he would give them, in behalf of plaintiff, a warranty, a written warranty, as per Exhibit A attached to defendants’ second amended original answer, and that same would become a part of the contract, and that same would be forthwith lived up to by the plaintiff; that, relying upon said representations and warranties, they signed the original contract; but that afterwards the plaintiff on the 21st of September, following, delivered said engine at Julieff, Tex., sending a man along with said engine to set up and operate it, together with a copy of said written warranty as per said Exhibit A attached to defendants’ pleadings; that defendants paid the consideration, $250 in cash and executed said notes, on delivery of the engine at Julieff, but that Mr. Led-better, the man who came out to operate or plow with the same that day, told defendants they would need a different appliance for hitching the plows to the engine, told them to get trucks for that purpose, and that he would come back when they got them and fulfill the terms of said warranty by making said engine plow successfully with said four gang plows; that said Ledbetter, representing the plaintiffs, came back the second time, but only plowed about two acres when a part of said engine broke, and he was unable to further operate or plow with it; that plaintiff sent hack again in an attempt to make said engine pull with said plows, but wholly failed to operate same successfully as provided in said warranty market Exhibit A and attached to defendants’ second amended original answer; further, that the defendants have sustained the damages as set up in their said- answer, and also that Paul W. Joplin was in the office and warehouse of the plaintiff, acting apparently in the capacity of agent of plaintiff.”

Rulings upon the admissibility of testimony ordinarily will not be reviewed in the absence of a statement of facts. This general rule is subject to exception where testimony is excluded which appears to be material and relevant to an issue involved, and upon which the merits of the case depend. Torrey v. Cameron, 74 Tex. 187, 11 S. W. 1088; Railway Co. v. Cox, 136 S. W. 103, and eases there cited. Tested by this rule, the assignment is entitled to consideration upon its merits.

In such ease, however, not only must the same fall within the exception noted, but it must further appear with reasonable certainty that error has been committed which produced substantial injury to the complaining party. Daniels v. Daniels, 128 S. W. 469; McCarty v. Wood, 42 Tex. 39. And in Torrey v. Cameron, supra, Judge Gaines said: “Where the evidence appears material and relevant to the issues under any probable state of the testimony, and where the ground of objection is one that is not tenable, we apprehend the bill of exceptions ought to be considered and the ruling revised, although no statement of facts appears in the record. * * * It is the duty of a party who here seeks to secure a reversal of the judgment of a lower court to bring to this court a record of the proceedings sufficiently full to show clearly the error of which he complains. If he bring a record which shows the proceedings only in part, every reasonable presumption will be indulged in favor of the court’s ruling, and the case will not be reversed unless it appear that upon no possible state of the case could the ruling be upheld. We cannot say that there was manifest error in excluding the testimony under consideration, and conclude therefore that the assignment of error predicated upon that ruling is not well taken.”

Not having the entire record before us, we are unable to say whether the exclusion of the proffered testimony harmed the defendants.

The plea of estoppel based upon' failure to give the six days’ written notice required by the contract may have been conclusively shown to be well taken by the defendants’ own testimony, in which case the error would have been harmless, and we must indulge this presumption in support of the judgment.

There is nothing in the record to support the statement in plaintiff in error’s brief to the effect that certain admissions were made by it with reference to the plaintiff’s right to recover, which would rebut any such presumption arising in its favor from other evidence possibly in the record. That no such admissions were made is indicated by the record, since defendants’ answer contained a general denial. Furthermore, the objection to the testimony stated in the bill appears to be well taken, since the written contract excluded secondhand machinery from its operation and upon its face disclosed that Joplin had no authority to change its provisions with reference to warranty unless so authorized in writing by an officer of Gaar-Scott & Go.

Affirmed.


author: FLY, C. J.

text:
    SOVEREIGN CAMP WOODMEN OF THE WORLD v. BAILEY
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1914.
    Rehearing Denied Feb. 25, 1914.)
    1.Evidence (§ 123) — Res Gest.®.
    In a suit on a benefit certificate issued by a. fraternal beneficiary association, the by-laws of which provided that the certificate should be void if the insured should die in consequence of a violation of any law, it appeared that insured waskilled while engaged in a brawl: Held, that evidence of declarations made immediately after the killing by one of the men who was present that the killing was in self-defense was admissible as part of the res gest®.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dee. Dig. § 123.]
    2. Insurance (§ 825)-Mutual Benefit Insurance — Actions—Jury Question.
    In an action against a mutual benefit insurance association, evidence on the question whether insured met his death while in violation of law held sufficient to go to the jury.
    [Ed. Note. — For other cases, see Insurance, '"W. Di°\ S 2009; Dec. Di~. S 825.]
    3. Witnesses (§ 292) — Privilege of Witness.
    In general, a witness may decline to answer any question which tends either directly to criminate him, or which may indirectly produce such result.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1008; Dec. Dig. § 292.]
    4. Witnesses (§ 307) — Privilege—Incrimination.
    Under Const. U. S. Amend. 5, providing that no person shall be compelled in any criminal case to be a witness against himself and under the state Const, art. 1, § 10, providing that, in all criminal prosecutions, the accused shall not be compelled to give evidence against himself, a witness in a civil suit desiring to be relieved from answering a question, on the ground that it will tend to incriminate him, cannot sit silently by and refuse to answer without giving a reason for his silence, but must swear that he believes his answer would incriminate him_, it being for the court to determine the question of privilege.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§’ 1061-1064; Dec. Dig. § 307.]
    5. Witnesses (§ 292) — Privilege—Incriminatory Statement.
    The privilege of refusing to answer questions on the ground that it would tend to incriminate the witness cannot be put forward for , the purpose of concealing facts in the interest i of some third person,
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1008; Dec. Dig. § 292.]
    Appeal from District Court, Victoria County; John 'M. Green, Judge.
    Action by O. F. Bailey against the Sovereign Camp Woodmen of the World. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    A. H. Burnett, of Omaha, Neb., and E. D. Henry, R. L. Daniel, and Augustus McClos-key, all of San Antonio, for appellant. Proctor, Vandenberge & Crain, of Victoria, for ap-pellee.

      For other cases see same, topic and section NUMBER in Deo. Dig. & Am. Dig, Key-No, Series.& P.ep’r Indexes

   FLY, C. J.

Appellee, as guardian of the estate of Willie Lee Bailey, a minor, sued appellant, a fraternal beneficiary association, to recover the sum of $3,000, alleged to be the amount due upon a benefit certificate issued to W. L. Bailey, the father of the minor, by appellant, said father having lost his life on the 1st day of April, 1912. Appellant answered by general and special exceptions, and that Bailey, in his application for insurance, had bound himself to abide by the constitution and by-laws of the association, one of which was that his certificate should be null and void if the insured should die in consequence of the violation or attempted violation of any law of the state or the United States; that the policy or certificate provided that, if the member holding the same should meet his death or die in consequence of the violation or attempted violation of the laws of the state or the United States, the certificate should become null and void, and all rights thereunder forfeited; that said W. Ij. Bailey was at the time of his death engaged in an unlawful assault upon one Alvin I-Iolzheuser, at or near the home of William Hutchinson, in Victoria county, and was carrying on or about his person a pistol and was attempting to murder one Charles Holz-heuser by shooting him with the pistol, and that he was killed by the Holzheusers in defense of their lives. The jury, under instructions from the court, after hearing the testimony, returned a verdict for appellee for $3,000, upon which verdict the judgment was rendered from which this appeal has been prosecuted.

Mrs. Hutchinson, a sister of the Holz-heusers, one or both of whom killed W. I/. Bailey, swore that Bailey came to her house to see his little daughter, who at that time was about two years old, and that Alvin I-Iolzheuser was there also, and, at the request of Bailey, the two men went out of the house, and they' had been out only a short while when she heard shots, and almost immediately she saw her brother Charles leading Alvin around the corner of the barn to the well, that Alvin’s head was bleeding, and they rinsed it at the horse trough. She asked them what they had done, and Charles replied: “I had to do it, or he would have killed both of us.” The barn was about 60 or 75 yards from the house. Alvin had a long wound on the forehead. Will Hutchinson testified that he was talking to Charles Holzheuser, about 36 feet from the corner of the barn, when a shot was fired back of the barn, and Charles ran around the corner and shots were again fired — four, five, or six of them. One shot was fired just as Charles went around the corner. Immediately after the shots were fired, Charles came back, leading Alvin, whose head was covered with blood. The witness said Charles told him, then and there, that, if he had not killed Bailey, the latter would have killed both of them. L. O. Hudler, a constable, said he found a six-shooting pistol lying beside the dead body of Bailey, behind the barn, and about 60 steps from the residence. Bailey had on a belt and scabbard. The pistol had two empty shells. They had been recently fired. The pistol belonged to an uncle of Bailey, and the dead man was not authorized to carry a pistol. Mrs.i Hutchinson intimated that her brother Charles and deceased had a previous difficulty.

The declarations of the Holzheusers, having been made immediately after the shooting and in connection therewith, were a part of the res gestas, and with probative force as to how the killing occurred. Railway v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902. Those declarations, taken in connection with the other circumstances, were sufficient to take the case to the jury. Uncontradicted, they tend to show that W. B. Bailey was violating the laws of Texas when he was killed. We will not further discuss the testimony. It is sufficient to say that the case should have been submitted to the jury.

It is probable that the Holzheusers would, not have criminated themselves by testifying in regard to the killing of Bailey, and merely invoked the rule to protect their infant niece from the consequences of their testimony. The general rule, whether a salutary one or not, is that a witness may decline to answer a question which tends either directly to criminate him, or which may indirectly produce such an effect. Chamberlayne, Mod. Law of Evidence, § 1444a et seq. The Constitution of the United •States (fifth amendment) provides that no person “shall be compelled in any criminal case to be a witness against himself,” and in the state Constitution (art. 810), it is provided that in all criminal prosecutions the accused “shall not be compelled to give evidence against himself.” Strictly construed, the constitutional safeguard in question does not include any ease except one for crime, in which the witness is the defendant, but the immunity has been extended by some courts to witnesses testifying in other cases than their own. In a majority of cases, however, the right to protection against, giving evidence that might be used to incriminate the witness has been confined to criminal cases. McGorray v. Sutter, 80 Ohio St. 400, 89 N. E. 10, 24 L. R. A. (N. S.) 165, 131 Am. St. Rep. 715, and cases cited in note. In that case it was held that the answer of the witness as to incrimination should not be conclusive in all cases, but the court may determine, from all the facts and circumstances, whether or not the answer might incriminate the witness. The same rule has been laid down in Texas, even in criminal cases. Floyd v. State, 7 Tex. 215; Ex parte Park, 37 Tex. Cr. R. 590, 40 S. W. 300, 66 Am. St. Rep. 835; Ex parte Andrews, 51 Tex. Cr. R. 79, 100 S. W. 376.

When a witness desires to be relieved from answering a question, he must swear that he believes that his answer would incriminate him. He cannot sit silently by and refuse to answer without giving a reason for his silence. Rosendale v. McNulty, 23 R. I. 465, 50 Atl. 850; Ex parte Stice, 70 Cal. 51, 11 Pac. 459; Scott v. Miller, 5 Jur. N. S. 858, cited in note to the Ohio case herein cited. The privilege cannot be put forward for the purpose of concealing facts in the interest of some third person. People v. Foundry Co., 201 Ill. 236, 66 N. E. 349; Re Moser, 138 Mich. 302, 101 N. W. 589, 5 Ann. Cas. 31; Lewisohn v. O’Brien, 176 N. Y. 253, 68 N. E. 353.

In this case, if it should not appear that the evidence asked of the Holzheusers as to the killing of L. H. Bailey would subject them to any danger from a criminal prosecution, but that the rule intended for the protection of accused persons is being used to protect the interests of the minor child, they should be compelled to answer. They should be compelled to swear unequivocally that their testimony would incriminate them, and then the court should be satisfied that there is reasonable ground to apprehend danger to the witnesses from their being compelled to answer.

The judgment is reversed, and the cause remanded.


author: McMEANS, J.

text:
    WRIGHT v. HARNED et al.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 20, 1914.
    Rehearing Denied Feb. 5, 1914.)
    1. Executors and Administrators {§ 214)— Claims — Burial Expenses.
    A person, who was in the company of a man at the time of his sudden death, caused his body to be taken in charge by an undertaker who later, but before he had provided a casket, was informed by a kinsman of the wife of the deceased that she desired the body to be held until she arrived. Such kinsman, assuming to act for the wife, directed that no arrangements be made other than preparing the body for burial, and later in the same day he and a temporary administrator appointed for the estate of deceased, selected a $250 casket, and directed that it be suitably draped. Later in the same day the undertaker procured a bronze casket, the price of which was $1,800, and placed the body in it, though there was no necessity for using any casket until the arrival of the wife. When the wife arrived and learned that the body had been placed in an $1,800 casket, she at once repudiated such action, and, upon the undertaker refusing to turn the body over to other undertakers unless the bronze casket be also taken, she caused both the body and the casket to be taken in charge by other undertakers, who stored the bronze casket and interred the body in a cheaper casket furnished by them. Held, that the first undertaker was not entitled to recover from the estate for the bronze casket, though the estate was worth about $300,000, and such casket was of a character and value suitable to the condition in life and financial circumstances of the deceased, and to the usages of the community in which he lived.
    [Ed. Note. — For other cases, see Executors and Administrators, Gent. Dig. § 755; Dec. Dig. § 214.]
    2. Dead Bodies (§ 1) — Control oe Body-Eight oe Widow.
    The widow has the right of control of the body of her deceased husband, and the first right to determine the disposition thereof and the casket in which it shall be buried, though she and deceased were estranged at the time of his death and a suit for divorce was pending, and though he may have stated to an undertaker that he wished him to take charge of his body and give it a suitable burial.
    [Ed. Note. — For other cases, see Dead Bodies, Cent. Dig. §§ 1, 2; Dee. Dig. § 1.]
    3.Executors and Administrators (§ 214)— Claims — Burial Expenses — Eecovery erom Estate.
    Others than the widow or next of kin of a deceased person may lawfully incur expenses for the interment of his body, and recover the amount of such expenses from his estate, provided they are not mere interlopers and the expenses are reasonable and suitable to the estate.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 755; Dec. Dig. § 214.]
    Appeal from District Court, Harris County; William Masterson, Judge.
    Action by C. J. Wright against Eli Harn-ed, administrator, etc., and later plaintiff filed his amended petition against Eli Earned and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Hutcheson & Hutcheson and Ingham S. Eoberts, all of Houston, for appellant. Fisher, Campbell & Amerman, of Houston, for appellees.

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

   McMEANS, J.

The following statement of the nature and result of the suit is taken from appellant’s brief:

Charles J. Wright, plaintiff belotv, appellant here, brought this suit in the district court of Harris county, against the defendant, Eli Earned, administrator of the estate of Frank Dunn, deceased, on September 22, 1910, to recover on a claim against the estate of said Frank Dunn aggregating $1,-975.60 — for a bronze casket, $1,800, for services and other things furnished, $175, alleging the presentment and rejection of all of said claims except $175.60.

The estate, in the meantime, having been closed by the delivery of the assets of same to Mrs. Sarah P. Dunn and Mrs. Annie Lee Eiche, as the persons interested therein, upon their application and bond therefor, with J. O. Eiche and J. J. Sweeney as sureties,, plaintiff, on November 16, 1912, filed his amended petition against the said Eli I-Iarn-ed, Sarah P. Dunn, Mrs. Annie Lee Eiche and her husband, J. O. Eiche, and J. J. Sweeney, to recover on said claim, alleging as grounds of recovery: First, that all of said material and services for which said claim was made were duly furnished, and were of the kind and quality reasonably proper and necessary for the burial and funeral of Frank Dunn, and the amounts charged therefor were the reasonable value thereof; second, that same were furnished in accordance with the express wishes of said Frank Dunn, made prior to his death, that plaintiff should take charge of his remains and give him a burial, compatible with and appropriate to his position in life, from a financial standpoint, and give due honor and credit to the same in his burial and funeral, said request having been made because of the fact that the relations between the said Frank Dunn and his wife were estranged and inimical, a divorce suit being then pending; third, that upon the death of the said Frank Dunn, the petitioner was requested to take charge of his remains, and did so, and, for the purpose of furnishing the said Frank Dunn a funeral and burial, materials, and sendees which were in accordance with his position in life, and in accordance with his express wishes, plaintiff, for that purpose, and under that authority, and with the intent to carry out the said expressed wish, did furnish to the said Frank Dunn a casket and burial, material, and services necessary to render him such honor and appropriate credit in said funeral; that the entire immense estate, which was more than $300,000 in value, went at his death to his wife and his said daughter as the beneficiaries, and that it was no more than just and right that the said Dunn should have his wishes carried out with the expenditure of a small portion of said moneys on hand; that same would have been done, so petitioner is informed and believes, but for the relations of estrangement existing between the said Dunn and his wife at the time, of the death of said Dunn; said petition also alleges the turning over of said estate to the defendants, Mrs. DUnn and Mrs. Eiche and her husband, J. O. Eiche, and J. J. Sweeney, sureties, and prayed that upon a hearing he be given judgment ior said sum of money so due him for material furnished and services performed; said petition further alleging the presentment to the' administrator and the rejection of said claim by him.

The defendants answered with general demurrer and general denial, and answered specially that plaintiff had no right to collect said sum, because he had been notified by X X Sweeney, temporary administrator, and others, among them the heirs of said ’Dunn, that they would pick out a suitable and less expensive casket for the burial of said Dunn, and that they had done so; that, notwithstanding that fact, plaintiff refused to recognize the selection so made by the said administrator, selected a more expensive casket, and placed the body of said deceased therein, and refused to take it thereout, and that said Sweeney had the body, casket, and all removed to another undertaking establishment, and if the said casket has not been taken possession of by the plaintiff, it is at said undertaking establishment subject to his order.

Plaintiff replied by supplemental petition, demurring, denying, and specially excepting that said J. X Sweeney had any authority, as temporary administrator, to take any action in the premises in regard to the disposition of said remains, and further specially answered that, before any of the heirs or next of kin of the said Frank Dunn had given him any instructions of any kind, he had already ordered the casket and placed the body of the said Frank Dunn therein, and that said casket became thereby appropriated to that purpose, and valueless for use by any other person.

The court instructed the jury to find-for plaintiff in the sum of $175, the amount tendered by defendant, and against the plaintiff for the $1,800 sued for as the value of the casket; and on said charge the jury returned a verdict as instructed, upon which judgment was duly entered, and from which the plaintiff, after his motion for a new trial had been overruled, has appealed.

It was admitted that the estate of Frank Dunn was worth $300,000, and the evidence showed the presentment by plaintiff of his claim to the administrator, the approval of a portion of.it, and the rejection of the balance.

On Sunday night, October 3, 1909, Frank Dunn died suddenly, while automobile riding with his friend, L. A. De Voss. De Voss called up the undertaking parlors of plaintiff Wright by telephone, and directed an employs of Wright, who in Wright’s absence answered the call, to go and get the body and take it to the undertaking establishment, and these directions were carried out by plaintiff’s said employs. That night, shortly after Dunn’s death, P. V. Meyer, a nephew by marriage of Mr. Dunn’s wife, sent a telegram to Mrs. Dunn, who at that time was in Kentucky, notifying her of the death of her husband. Early next morning plaintiff also sent a telegram to the same effect to Mrs. Dunn. Mrs. Dunn did not reply to the telegram sent by plaintiff, but did reply to the one sent by Mr. Meyer, and her reply was received by him about 7:30 o’clock Monday morning, and was as follows: “Hold body; will get there Tuesday night.” Between 8 and 9 o’clock Monday morning Meyer went to the plaintiff’s undertaking establishment, and exhibited to plaintiff the telegram just received from Mrs. Dunn, and told plaintiff to make no arrangements other than to prepare the body for burial. This, however, had already been done. He further told plaintiff that no arrangements had to be made until the court appointed an administrator, and that he would return in the afternoon with the administrator, and select a casket and place the body in it until the family arrived, which would be Tuesday night. In the afternoon Meyer, accompanied by X J. Sweeney, who in the meantime had been appointed temporary administrator of Frank Dunn’s estate, returned to the undertaking parlors, and together selected a casket, the price of which was $250, and directed that it be suitably draped. Dater in the afternoon plaintiff ordered by telegraph a bronze casket from Dallas to be sent to Houston by express, the price of which was $1,800, and this casket reached Houston on Tuesday morning, and the body of Frank Dunn was placed in it by plaintiff. Later in the day Mr. Meyer again went to the undertaking parlors, and then discovered that the body of Mr. Dunn had been placed in the bronze casket, instead of the one that had been selected by himself and the administrator, and asked Mr. Wright for an explanation. Mr. Meyer testified that, in response to this: “Mr. Wright first told me it was none of my business; that he did not intend to stand by and see a man of Frank Dunn’s prominence in the city of Houston buried in a casket such as we selected; that he was entitled to a sweller funeral than the one we intended to give him.”

Mrs. Dunn reached Houston Tuesday evening, and, learning of Mr. Wright’s action in placing the body of her deceased husband in an $1,800 casket, at once repudiated such action, and directed Earthman & McCarty, rival undertakers, to take charge of the body. This firm presented to plaintiff an order signed by Mrs. Dunn, directing him to turn the body over to them, but plaintiff refused to let them have the body unless the bronze casket should be taken also, and finally, in order to obtain the body, Earthman & McCarty, acting under the orders of Mrs. Dunn, took both the body and the casket, and removed same to their own undertaking establishment, where the body was removed from the bronze casket and placed in one selected by or at the request of Mrs. Dunn, and in this casket the body was interred. The bronze casket was then stored in the warehouse of Earthman & McCarty, where it now is. The effect of placing the body in the bronze casket was to make the casket secondhand, and this would render it hard to sell, and would greatly depreciate its market value. The bronze casket furnished by plaintiff was one such as was proper to be furnished for a man of the means and condition in life of Mr. Dunn. Mrs. Dunn did not authorize any one to select a casket until she arrived in Houston. Mr. Dunn died intestate, and his widow and married daughter, Mrs. Mche, are his only heirs.

Appellant by his first assignment of error complains that “the court erred in peremptorily charging the jury to find against his claim for $1,S00 for the bronze casket, because there was evidence that the said casket was furnished under proper circumstances and conditions, and was of the character and value suitable to the condition- in life and the financial circumstances of the deceased, and the plaintiff was entitled to have the jury pass upon the question, in the light of the facts and circumstances in evidence whether the action of the plaintiff in regard to furnishing said casket was proper, and what amount should be allowed plaintiff therefor.” The second assignment presents the same'questions in slightly different form. Appellant asserts by his first proposition under the assignments that the question of the amount to be allowed for funeral expenses is one which is determined by the position of the deceased, the amount of his estate, the usages of the community in which he lived and other considerations which legitimately enter into the questions of rendering to the deceased a just and proper disposition of his remains. The soundness of this proposition may be conceded, but it furnishes no reason, under the facts of this case, for disturbing the judgment rendered upon the instructed verdict. The second proposition is, in effect, that it is not necessary, in order to entitle a person to recover for services rendered or supplies furnished for the funeral of a decedent, that he should have been requested to furnish the various supplies which he did furnish by the next of 'kin of the deceased; that it is only required that he should, under proper circumstances, have performed the services and furnished the material, and that the matter of the amount to be allowed him therefor is a question for the court or jury, under all the circumstances of the case. With certain qualifications the soundness of this contention also may be conceded.

Appellant concedes that the law accords to the widow or next of kin the right of control of the remains of a deceased person, and the first right to determine the disposition thereof. This right is given by law, and is a right superior to that of any other person when the widow or next of kin assumes to act in relation to the disposition of the remains of the deceased.

It is true that others than the widow or next of kin may lawfully incur expenses for the proper interment of the dead, and recover for that expense the amount thereof, provided he is not a mere interloper, and provided the expenses are reasonable and suitable to the estate of the decedent. Cape Girardeau Bell Telephone Co. v. Hamil, 160 Mo. App. 521, 140 S. W. 954. This principle seems to have been recognized by the court below, because the expenses incident to the proper preparation of the body of deceased for burial, including embalming, was allowed, and rightly so. Frank Dunn’s body was carried to plaintiff’s establishment at the request of his friend, with whom he was riding when he died. His widow and only child were in Kentucky, and, no one else having authority, assumed to dictate how the body should be prepared for burial. In these circumstances plaintiff undertook to prepare the body, including embalming, and in doing so incurred expenses to the amount of $175, which, conceding the reasonableness of the charge, as to which appellees made no question, was a proper charge against the estate of the decedent, and was properly allowed. But did he have the right to charge the estate with the value of the bronze casket in the circumstances in which it was furnished? Before he had taken any steps towards selecting a casket, and more than a day before he actually furnished it, he knew that Mrs. Dunn had been informed of '■her husband's death, and that she had instructed her kinsman to hold the body, and that she would reach Houston Tuesday night; he knew that this same kinsman, assuming to act for Mrs. Dunn, had selected a casket, and, knowing these things, ordered by telegraph the casket from Dallas to be ■sent by express, and that it could not reach Houston until Tuesday, the day Mrs. Dunn was to arrive. The law implies a promise ■of reimbursement from the estate to one who, in the absence or neglect of the next of kin, not officiously, but in the necessity of the case, directs a burial and incurs and .pays such expense thereof as is reasonable. Patterson v. Patterson, 59 N. Y. 583, 17 Am. Rep. 384. But was the act of plaintiff in furnishing the bronze casket done in the necessity of the case? The body had already been embalmed, and its preservation secured in this way, and the placing of it in the casket did not aid in its furthest: preservation. The interment could not take place until after Tuesday, because Mrs. Dunn had instructed that the body be held, and she ■could not reach Houston until that night. In these circumstances we think that the act of plaintiff in ordering the casket and placing the body therein, after knowing the facts above detailed, and further knowing, or if not knowing, evidently from his testimony and from the allegations of his petition, believing, Mrs. Dunn would not, had she been in Houston, have selected such an expensive casket, and that she would object to the use ■of it, was not an act of necessity; that it was officious is shown by the statement made by him to Mr. Meyer, that it was none ■of his, Meyer’s business,, and that he did not intend to stand by and see a man of Frank Dunn’s prominence buried in a casket such •as had been selected. The necessity for placing the body in a casket before the arrival •of Mrs. Dunn was not urgent; and, when plaintiff was informed that Mrs. Dunn would ■come to Houston immediately, he should have assumed that she would direct the final disposition of the remains, including the selection and purchase of the casket in which she desired he should be buried, and the expenses thereafter incurred by plaintiff in ordering the casket and placing the remains therein were incurred at his own risk. Of course, if his acts had been ratified by the widow upon her arrival, the estate would have been charged with the reasonable value of the casket, but they were not ratified, but repudiated, and the widow, exercising her legal rights, made selection of the casket in which her husband’s remains were interred. It is proper to say, we think, that plaintiff in acting as he did was actuated only by the ■desire to see that his dead friend was given ■a funeral commensurate with the financial ■circumstances and condition in life of the deceased, and in accordance with his request, but the next of kin in this case, who, by the death of the deceased came into the control of a fortune of $300,000, had the right to say that he should have a less elaborate funeral, and they had the right to repudiate those things done by plaintiff, not under stress of necessity, and without lawful authority. What we have said above sufficiently disposes of appellant’s third proposition under the first and sebond assignments of error. We conclude that the peremptory charge was properly given, and the assignments and propositions thereunder are overruled.

The plaintiff offered to prove that on December 4, 1907, Mrs. Dunn filed suit for divorce against her husband, and also that on September 28, 1909, she filed another suit for divorce, and offered to introduce the original petitions in these cases in evidence. He also offered to prove that an estrangement existed between the parties, and that plaintiff knew this. He further offered to prove, by his own testimony and by the testimony of several witnesses, that Prank Dunn told plaintiff on several occasions that when he died he wished plaintiff to take charge of and inter his remains, and to furnish him a first-class funeral, consistent with his means and circumstances in life. This testimony was rejected by the court upon proper and timely objections offered thereto by appellees, and this action of the court is made the basis of the eighth, ninth, tenth, eleventh, and twelfth assignments of error. We do not think the estrangement between Mr. and Mrs. Dunn deprived the latter, upon the death of the former, of her right to dispose of the remains of her husband, nor would the fact of the divorce proceeding have this effect. She was his wife notwithstanding the estrangement and her attempt to be freed from the matrimonial relation, and, as such, had the rights of a widow or next of kin'in the disposition to be made of the remains. The fact that Mr. Dunn had expressed to plaintiff the wish that when he died plaintiff should take charge of his body and give it suitable burial is entitled to great weight in considering plaintiff’s good faith in doing what he did (Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 64 L. R. A. 179, 99 Am. St. Rep. 795), but is not controlling as against the wife’s superior right to control the interment. In this view we think there was no error in rejecting the proffered testimony, and the assignments are overruled.

We have carefully examined all of appellant’s assignments of error, and are of the opinion that no reversible error is pointed out in any of them. We think the judgment should be affirmed, and it has been so ordered. Affirmed.