author: LEVY, J.

text:
    TEXAS & P. RY. CO. v. LATHROP.
    (No. 1720.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 24, 1917.
    Rehearing Denied Feb. 8, 1917.)
    1. Carriers <&wkey;271 — Carriage of Passenger — Stopping at Destination — Actions.
    Where a passenger over connecting railroads had a ticket made up of coupons, and one of the coupons called for passage from Little Rock to Texarkana, the action of railroad employés at Little Rock in directing the passenger to take a train which stopped at Texarkana, but not at the passenger’s destination beyond, was not a wrongful act, but consistent with the contract of transportation. ■
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1067-1071.]
    2. Carriers &wkey;278(2%) — Findings — Construction.
    In an action against a railroad company for damages for carrying . plaintiff, traveling over connecting railroads on coupon ticket, past her destination while a passenger on its train, a conflict in evidence as to whether the conductor who took plaintiff’s ticket told the plaintiff that she would have to change cars, as the train did not stop at her destination, a finding of the court that the conductor told plaintiff she would have to change cars, but that the plaintiff did not so understand it, and did not understand him to tell her that the train did not stop at her destination, should be construed as a finding that the conductor told plaintiff she would have to change cars.
    8. Carriers <&wkey;271 — Carriage of Passengers — Negligence.
    In an action against a railroad for damages for carrying passenger over connecting railroads on coupon ticket past her destination, where plaintiff was told by the conductor on the train that she would have to change cars, she could not in good faith rely upon the incorrect statement of railroad employés before boarding the train that it would stop at her destination, since if there was negligent misdirection in the first instance, such negligence was relieved against by the subsequent timely giving of the true information to the plaintiff, which, if followed by her, would not have resulted in her being carried beyond her destination point.
    [Ed. Note. — For other cases, see Cárriers, Cent. Dig. §§ 1067-1071.]
    4. Carriers <&wkey;271 — Carriage of Passengers — Rights of Railway Company to-Regulate Schedule.
    Where passenger over connecting railroads-on coupon ticket had no special contract with railroad to transport her on a particular train, and there were other trains stopping at her destination, the railway company had the right to so regulate the train which she took that it did not make a stop at her destination point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1067-1071.1
    Appeal from District Court, Marion County ; J. A. Ward, Ju'dge.
    Action by Mrs. M. J. Lathrop against the Texas & Pacific Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed, and rendered for defendant.
    The action is by appellee to recover damages against the railroad company for being carried past her destination while a passenger on a train. The case was tried before the court without a jury, and judgment rendered in favor of plaintiff. The trial court, made the following finding of fact:
    “(1) I find that on the 20th day of December, 1915, the plaintiff resided with her son-in-law and daughter, P. L. Hunnieutt and wife, at Asheville, Nr 0., and her son, A. L. Lathrop and his wife, Mary, resided at Jefferson, Marion county, Tex.
    ‘“(2) I find that on the 20th day of December, 1915, Mrs. Mary Lathrop, wife of A. L. Lathrop, was seriously and dangerously ill at Jefferson, Marion county, Tex., and her husband sent toP. L. Hunnieutt, for the benefit of Mrs. M. J. Lathrop and her daughter, Eula, the following telegram: ‘P. L. Hunnieutt, Asheville, N. C. Mary very low. Mother and Eula come if possible. Your boy in trouble. Arthur.’ This telegram was received by the plaintiff in this case at Asheville, N. C., about 6 o’clock in the afternoon of December 20, 1915.
    “(3) I find that Mrs. M. J. Lathrop procured a ticket at Asheville, N. C., over the Iron Mountain and Texas & Pacific Railroad Companies, by way of Memphis, Tenn., Little Rock, Ark., and Texarkana, Ark. — Tex., to the city of Jefferson, Tex., and departed from Asheville in the early afternoon of the 22d day of December, 1915, on her journey to Jefferson, Marion county, Tex.
    “(4) I find that plaintiff reached Little Rock, Ark., on the evening of December 23, 1915, from Memphis, Tenn., and it became necessary for her to delay there until the Sunshine Special, a through passenger train running from St. Louis, Mó., by the way of Little Rock, Ark., and Tex-arkana, Ark. — Tex., through Jefferson, Tex., to Marshall, Longview Junction, Dallas and Ft. Worth, Tex.; that some time late in the evening of December 23, 1915, the Sunshine Special journeying from St. Louis to Texarkana, arrived at Little Rock, Ark.
    “(4a) X find that the Sunshine Special was. a through passenger train that ran from St. Louis, Mo., to Ft. Worth, Tex., and its schedule was to stop at Texarkana, Marshall, Longview Junction, Dallas, and Ft. Worth, and that it did not stop at Jefferson, Tex., according to the schedule, but the plaintiff did not know this when she got aboard it at Little Rock, Ark.
    “(5) I find that when the Sunshine Special reached Little Rock the plaintiff was advised by the porter in the depot, crying out to passengers that this train was the Sunshine Special, a through train, and called out stations on the road, indicating to plaintiff that this was possibly her train, and that she sought information at the gate leading from the Union Depot, and that the gatekeeper, when advised that she wanted to go to Jefferson, Tex., permitted her to pass out, and she went to the member of the train crew at the vestibule door of the train and showed him her ticket, and told him that she was bound for Jefferson, Tex., and was in trouble, and he told her to get aboard the train.
    “(6) I find that the conductor of the train took up the coupon of ticket reading from Little Rock to Texarkana and punched the same, and at the time told plaintiff that she would have to change cars at Texarkana, but further find that plaintiff did not so understand him, and failed to understand that she would have to change cars there, and she did not understand him to tell her that this train she was then on did not stop at Jefferson.
    “(7) I find that when the train reached Tex-arkana the crew that came from Little Rock to Texarkana was changed, and the engine was changed, and a new crew took charge of this train at Texarkana to carry it to Pt. Worth.
    “(8) T find that when the conductor who took charge of the train at Texarkana reached plaintiff to take up her ticket he advised her that this Sunshine Special on which she was then a passenger did not stop at Jefferson, and that plaintiff importuned him to stop at Jefferson, and advised him of the condition of her daughter-in-law and her anxiety to stop at Jefferson, hut that he told her he could not under the rules of the company, and that he carried the plaintiff to the city of Marshall, Harrison county, Tex., and gave her return passage to Jefferson.
    “(9) I find that Marshall is 16 miles from Jefferson, and this train passed through Jefferson about 7:50 a. m. and arrived at Marshall 8:30 a. m., and I find that plaintiff returned to Jefferson on First No. 6, a passenger train on the afternoon of the same day, arriving at the hour of 2:27 p. m.
    “(10) I find that by reason of plaintiff being carried through Jefferson to Marshall and not being permitted to alight from the train at Jefferson she suffered great anxiety and mental anguish and worry, to her actual damage in the sum of $750.
    “(11) I find that plaintiff was sick after arriving in Jefferson with la grippe, and that she had been sick while riding on the train from what is known as train sickness, but I find that neither the la grippe nor the train sickness was the proximate result of the failure of defendant to permit plaintiff to alight from said train at Jefferson when she passed through, and the only actual damages she has sustained by reason of such failure is the mental anxiety, anguish, and worry above referred to.”
    The undisputed evidence shows that at the time in question appellant operated five passenger trains south out of Texarkana, stopping at Jefferson. The Sunshine Special was regularly scheduled to leave Texarkana at 6:35 a. m., and not to make stops at Jefferson. Passenger train No. 5, the first train leaving after the Sunshine Special, was regularly scheduled to leave Texarkana at 11:55 a. m., and to arrive and stop, as it did on the day in question, at Jefferson at 2:52 p. m.
    Armistead & Benefield, of Jefferson, for appellant. W. L. Grogan, of Shreveport, La., for appellee.
   LEVY, J.

(after stating the facts as above). It is the contention of appellant that the judgment in favor of appellee is not warranted by the facts of the case. The contention, we conclude, should be sustained. According to the evidence, appellee had a ticket made up of coupons which entitled her to passage over the line of the company issuing them and over connecting lines necessary for her to travel in order to reach her destination. A coupon, which is the same as a separate ticket, called for passage over the Iron Mountain Railway from Little Rock to Texarkana. So the appellee had the absolute right, and it was the duty of the em-ployés of the Iron Mountain Railway Company at Little Rock, to permit her to take the Sunshine Special, the first connecting train to Texarkana, the end of the route represented by such coupon. And therefore the fact that appellee was directed and permitted by the railway employés at Little Rock to take that particular train to Texarkana would not, of itself, be a wrongful act to ap-pellee, but consistent with the contract of transportation. And if appellee had a right to rely on the acts of the depot master and brakeman of the Sunshine Special, then at Little Rock, as authorizing her to believe and assume that the Sunshine Special, after leaving Texarkana, would stop at Jefferson, her destination, such misrepresentation to her could not, in view of the finding by the trial court, be regarded as of any legal force and be made the basis of any action by appellee. For the effect of the court’s finding is that the appellee, after entering the train, and before it arrived at Texarkana, had correct information from the conductor, acting in the line of his duty in taking up tickets, that when the train stopped at Texarkana she would have to change from the Sunshine Special to another passenger train to go from Texarkana to Jefferson, her destination. The court’s finding reads:

“(6) I find that the conductor of the train took up the coupon of her ticket reading from Little Rock to Texarkana and punched the same, and at the time told plaintiff that she would have to change cars at Texarkana, but I find that plaintiff did not so understand him, and failed to understand that she would have to change cars there, and she did not understand him to tell her that this train she was then on did not stop at Jefferson.”

The finding should be construed, in the light of the evidence, as being a fact that the conductor “told plaintiff that she would have to change cars at Texarkana.” For there is no evidence that plaintiff did not understand from the conductor’s statement or conduct that she was not to change cars at Tex-arkana for Jefferson, or that she was misled by his said statement or conduct. The plaintiff’s testimony in this respect was simply this:

“I heard the conductor testify as to what he said to me on the way from Little Rock to Texarkana. He did not say anything to me about changing cars. He did not say anything to me about not being able to come to Jefferson on that train.”

Thus there was merely a conflict of evidence respecting whether the conductor of the Iron Mountain Railway at the time of taking up the ticket told plaintiff she would have to change cars at Texarkana for Jefferson ; and the trial court, as within his province, settled the conflict by finding that the conductor “told plaintiff that she would have to change cars at Texarkana.” As appellee had knowledge, given by the Iron Mountain conductor, as found by the court, that she would have to change cars at Texarkana for Jefferson, she could not therefore rely in good faith upon the incorrect statement of the local employés at Little Rock that she could go on the Sunshine Special from Texarkana to Jefferson. Railway Co. v. Gants, 38 Kan. 608, 17 Pac. 54, 5 Am. St. Rep. 780; Railway Co. v. Hassell, 62 Tex. 256, 50 Am. Rep. 525. For if there was negligent misdirection, in the first instance, by the local employes at Little Rock, such negligence was relieved against by the subsequent timely giving of the true information to appellee, which, if followed by her, would not have resulted in her being carried beyond her destination point. And it does not appear that the appellee did not have sufficient time to follow the conductor’s direction and make the change before the Sunshine Special left Texarkana. I The Sunshine Special did not, according to the evidence, make a stop at .Jefferson, and, in the evidence, the railway company had the right to so regulate the running and schedule of such train. Railway Co. v. Moore, 98 Tex. 302. 83 S. W. 362, 4 Ann. Cas. 770. There is no finding of fact by the court, nor is there any evidence in the record, that any employs of appellant, the Texas & Pacific Railway Company, by acts or statements led appellee to believe that she could remain on the Sunshine Special, and that it would stop at Jefferson. Therefore, according to the evidence, the appellee remained upon the Sunshine Special after it reached Texarkana, notwithstanding she was directed by the conductor to change cars at Texarkana to go from Tex-arkana to Jefferson. The legal effect of this fact is to show a want of any negligent misdirection of the railway company, indicating that the particular train would stop at Jefferson. And as there is failure of proof of any negligent act on the part of the railway company, the appellee may not recover, and the judgment should be reversed and judgment in favor of appellant. For there is no special contract to transport appellee on this particular train, and the undisputed evidence is that appellee was carried to her station, without cost to her, under her contract.

The facts in the case of Hutchinson v. Railway Co., 140 N. C. 123, 52 S. E. 263, 6 Ann. Cas. 22, cited by appellee, are quite different; for there the plaintiff was admitted to the train without objection or warning that it did not stop at her destination, and she had reason to believe the train would stop, for she testified “that in the 18 months previous she had twice traveled on that same 10:20 train, and each time she had been put off at Liberty.” The case of Railway Co. v. Cole, 66 Tex. 562, 1 S. W. 629, was where the passenger was sold a ticket for a particular train to go to her destination, when the train in fact did not stop at that place. Neither of these cases is applicable to the instant ease.

The judgment is reversed, and judgment is here rendered in favor of appellant, with all costs of appeal and of the trial court.

       — Fm- other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    SANDERS, Sheriff et al. v. WAGHALTER.
    (No. 1712.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 10, 1917.
    Rehearing Denied Jan. 25, 1917.)
    1. Courts &wkey;>121(5) — County Court — Jurisdictional Amount — “Interest.”
    A suit against a sheriff for an alleged conversion of $198.70 and for $14 as damages for being deprived of the use of the principal amount, the $14 should not he treated as “interest” within the meaning of the Constitution, but as an element of damages from the alleged conversion, so that the suit was for a sum in excess of $200, exclusive of interest, and within the jurisdiction of the county court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 419, 420.
    For other definitions, see Words and Phrases, First and Second Series, Interest.]
    2. Sheriffs and Constables &wkey;>98(l) — Execution — Conversion — Protection by Writ.
    Where an execution in the sheriff’s hands when the money was paid to him was in due form of law, regular upon its face,. and duly authenticated from a court having jurisdiction •of the subject-matter of the suit, resulting in the judgment on which it was issued, it was the right and duty of the sheriff to collect the amount of the writ, and, having collected it, to pay it over to the execution creditor.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 143-145.]
    3. Sheriffs and Constables i&wkey;98(2) — Execution — Protection by Writ —Knowledge of Facts.
    A sheriff may safely obey a writ of execution fair and regular on its face., and is not bound to judge of it by facts within his knowledge which may be supposed to invalidate it.
    [Ed. Note. — For other eases, see Sheriffs and Constables, Cent. Dig. §§ 143, 144, 146-148.]
    4. Sheriffs and Constables &wkey;>94L-PROTECtion by Wrh> — Conversion—Recovery.
    The fact that a sheriff, having a due and regular writ of execution, promised to hold the money paid to him until the execution debtor could get judgment and execution corrected did not authorize a recovery by the successor to the rights of the execution debtor, where the money was not paid until the return day of the execution, and was paid then to prevent the sheriff from levying on the property of the sureties on the execution debtor’s bond.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 126, 222, 223.]
    Appeal from Hárrison County Court; Geo. L. Huffman, Judge.
    Action by A. Waghalter against John C. Sanders, Sheriff, and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and judgment rendered that plaintiff take nothing by his suit.
    October 3, 1913, the State Bank of Marshall, having a judgment against appellee, had an execution issued thereon for $481.80 and interest from September 23, 1913, at the’ rate of 10 per cent, per annum; that being the part of the judgment then unpaid. On the day it was issued the execution was levied on a stock of goods as the property of appellee. Included in the stock were certain shoes, valued at $300, which one McConkin claimed to own, and for which he filed a claimant’s oath and bond to try the right of property therein. The other portion of the stock of goods was sold as directed by the writ, the sheriff receiving1 therefor $400, $23.-70 of which he applied to the payment of court costs, and the remainder of which he paid to the bank, as was shown by his return on the execution made October 16, 1913. The right of property suit between the bank and McConkin was tried April 9, 1914, and resulted in a judgment which, after reciting that:
    “The issue between plaintiff and defendant was one of trial of right of property to 196 pairs of Peters shoes, which property was levied on by plaintiff by a writ of execution on the 3d day of October, 1913, and recovered with a claim bond from plaintiff by defendant on the 5th day of October, 1913, and the court after hearing all the evidence and argument of counsel is of the opinion that the plaintiff, the State Bank of Marshall, should recover of defendant, W. N. McConkin, the full amount sued for”
    —concluded as follows:
    “It is therefore the judgment of this court that the plaintiff, the State Bank of Marshall, do have and recover of the defendant W. N. McConkin, P: G. Whaley, M. M. O’Banion, O. M. Peden, and Henry Stein, sureties on defendant’s claim bond, the sum of $309, with 6 per cent, interest from the 5th day of October, 1913, and all costs of this suit, for all of which let execution issue.”
    June 23, 1914, an execution, returnable in 90 days, was issued on the judgment set out above, for the amount thereof, and placed in the hands of the sheriff. September 23,1914, the return day of the execution, McConkin paid to the sheriff $317.40, the amount, principal, and interest thereof. The sheriff, on the day he received same, paid the $317.40 to the bank. On McConkin’s motion filed September 30, 1914, the court, on October 9,1914, made and had entered on the minutes an order by which he attempted to “correct” the judgment he had rendered and had entered April 9,. 1914, in the trial of the right of property suit. In this order it was recited that it appeared that said judgment of April 9, 1914, “fails to dispose of all the issues in this cause, and that said judgment was not entered correctly,”
    and it is further recited that at the time of the levy of the execution on the shoes they were
    “the property of said Waghalter and subject to sale in order to satisfy said execution; that the value of said shoes is the sum of $300; that the amount of plaintiff’s claim, the amount due and unpaid on said execution, as shown by the execution and return thereon, is the sum of $113.75.”
    After adjudging that the bank recovered of McConkin and his said sureties the sum of $300 and 6 per cent, interest from October 5, 1913, and costs, the order concludes as follows:
    “It is further ordered,, adjudged and decreed by the court that the amount of plaintiff’s claim be and is hereby established at the sum of one hundred thirteen dollars ($113.75) and spventy-five cents, and that plaintiff do have execution for said sum of $113.75, with 6 per cent, interest thereon from date, together with costs of suit. And it is further ordered, adjudged, and decreed that the excess of said judgment for the sum of $300, after satisfying the amount of plaintiff's claim for the sum of $113.75, interest thereon and costs of suit, shall inure to the benefit of any person or persons who shall show superior right or title thereto as against the defendant, W. N. McConkin, that execution do issue in accordance with the terms hereof. It is further ordered that this judgment shall not be considered as an adjudication of any matters or rights accruing after the date of entry of said original judgment; that is, April 9, 1914.”
    This suit was by appellee, who by transfer from McConkin had acquired the right, if any, the latter had to maintain it, against Sanders, the sheriff, and the sureties on his bond as such. In his petition appellee, among other things, alleged that the bank caused an execution to be issued on the judgment ren'dered in the trial of the right of property suit, and placed the same in the hands of the sheriff,
    “and thereafter on the 23d day of September, 1914,. the said Sanders collected from said Mc-Conkin the sum of $317.40 and all costs of suit, in full settlement of said execution. Said shoes and the proceeds thereof were the property of plaintiff, and plaintiff was entitled to receive said money from Sanders after the payment of the unpaid balance on the State Bank’s judgment against plaintiff, which said balance at the time defendant Sanders collected said money from McConkin was $118.70, leaving a balance of 198.70, which said Sanders should have paid over to the plaintiff herein.
    “Plaintiff on the 23d day of September, 1914, and thereafter repeatedly made demand upon said Sanders for the payment of said sum, and said Sanders has refused to pay plaintiff the same, or any part thereof, and wrongfully and without cause, on the 23d day of September, 1914, converted the same to his own use and benefit.
    “Each and all of the acts of said Sanders as herein alleged were done by him in his official capacity as sheriff of. Harrison county, Tex., and while the other defendants were sureties on his official bond as such sheriff, and the other defendants are each and all liable for the unlawful and wrongful acts of the defendant Sanders.
    “The plaintiff avers that by reason of the unlawful acts and conduct of the defendant Sanders as herein alleged plaintiff has been damaged in the said sum of $198.70, and by reason of being deprived of said sum of $198.70 by said unlawful acts and conduct of said Sanders plaintiff has suffered further damages in the sum of 6 per cent, per annum interest on said sum of $198.70 from September 23, 1914, to the filing of this petition, making in all the sum of $212.70 plaintiff has been damaged.
    “Plaintiff prays that he have judgment against the defendants jointly and severally for said damages in. the sum of $212.70, together with interest on said sum of $198.70 from this date until final judgment, and he prays for costs of suit and for general relief.”
    The witness O’Banion testified:
    “I was the attorney for McConkin in the trial of right of property suit in the county court between McConkin and the State Bank. After the execution was issued on the judgment in that case, on the 23d of September, 1914, Sheriff Jno. C. Sanders notified me that he was going to levy on the property of the sureties on Mc-Conkin’s bond. I asked Sanders if he had an indemnity bond, and he said no, and I told him that he had better get one, as the judgment and execution were not correct. I asked him to hold up the execution until I could get the judgment and execution corrected, but he said that he had to make his return on it that day. Sanders said that he knew that the execution was not correct, as the bank was not entitled to all that money. I again talked with Sanders about the execution and judgment, telling him that I could not get them corrected until Judge Huffman returned from the lake. I asked Sanders if I paid him the money if he would hold it until Judge Huffman returned from the lake so that I could get the judgment and execution corrected, and he said that he would do so. He said that he would not pay the money out at all until I had a chance to correct the matter.
    “I also talked with Mr. J. B. Henderson, office deputy for Mr. Sanders, about the execution and judgment being incorrect, and he said that the bank was not entitled to all that money, and that he knew that it was not correct. He also said that they would hold the money and not pay it out until I could get an opportunity to correct the judgment and execution. I paid the costs and the $317.40 over to Mr. Henderson, with this understanding, and to prevent the sheriff from levying on the property of the sureties on McConkin’s bond.”
    The witness Henderson testified:
    “In September 14, 1914, I was chief deputy sheriff under J. O. Sanders, and had charge of the office. I held for collection an execution against McConkin and sureties in the trial of right of property ease. Mr. O’Banion came to the office on September 23, 1914, and paid me the amount claimed in the execution, which was about $317.40, and costs. After he paid me the money I started to the bank with it, and met Mr. O’Banion in the door of the sheriff’s office, and he then asked me if I would not hold up the paying over of the money for a while to see if he' could not get some relief. He said that the bank was entitled to only the balance remaining unpaid On its judgment against Wag-halter. I told him no, that the execution was in favor of the bank for the whole amount, and I would have to pay it out to the bank. This was the last day of the life of the execution, and I could not hold the matter up.”
    Appellant Sanders testified:
    “I was sheriff of Harrison county, Tex., in the years 1913 and 1914. The execution issued in the case of State Bank of Marshall against A. Waghalter and the execution in favor of the State Bank of Marshall against McConkin in the trial of right of property suit were placed in my hands as sheriff of Harrison county. I called on Mr. O’Banion several times to get him to settle the McConkin execution. He did not settle it with me, but wanted more time, and I think he said there was something wrong with the judgment. I don’t remember that I promised him to hold the execution up. I suppose that I must have known that O’Banion was claiming that the bank was not entitled to all the money.”
    The trial resulted in a judgment in ap-pellee’s favor against the sheriff and the sureties on his official bond for the sum of $217.07.

      F. H. Prendergast, of Marshall, for appellants. Cary Abney and M. M. O’Banion, both of Marshall, for appellee.
   WILLSON, O. J.

(after stating the facts as above). In disposing of this appeal it is necessary to refer to only two of the contentions made by appellant.

One of the two is that the court below was without jurisdiction of the suit, because it was for a sum which did not exceed $200, exclusive of $14, which it is asserted was claimed as interest on the $198.70. If it appeared that the recovery sought of the $14 was for interest allowed by the statute, the contention should be sustained. But it will he seen by reference to appellee’s pleadings, set out in the statement above, that his suit was for damages for an alleged conversion by the sheriff of the $198.70, and that he did not seek a recovery of the $14 as interest allowed by the statute, but as damages resulting to him from being deprived of the use of the $198.70. Therefore, in determining the Question made as to the jurisdiction of the court below, the $14 sued for should not be treated as “interest” within the meaning of the Constitution, but as an element of damages suffered by appellee as a result of the alleged conversion by the sheriff of the $198.70. So treating it, the suit was for a sum in excess of $200, exclusive of interest, and the court below was not without power to hear and determine it. Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Dwyer v. Bassett, 29 S. W. 815; Railway Co. v. Faulkner, 118 S. W. 747.

The other of the two contentions referred to is that it appeared that the sheriff was not guilty of a conversion as charged by appellee of the money, or any part of it, paid to him by McConkin in satisfaction of the execution. This contention should be sustained. It was not pretended in the court below, nor is it here, that the execution in the sheriff’s hands at the time the money was paid to him was not, “in due form of law, regular upon its face, and duly authenticated from a court having jurisdiction of the subject-matter” of the suit, resulting in the judgment on which it was issued. State v. King, 30 Ind. App. 389, 66 N. E. 85. Such being the character of the process, the sheriff not only possessed the right, hut it was his duty, to collect of McConkin the amount of the writ, and, having collected same, to pay it oyer to the bank. The fact, as testified to by the witness, O’Banion, that the sheriff knew, he declared, “that the execution was not correct, as the bank was not entitled to all that money,” did not deprive the sheriff of the right conferred, nor relieve him of the duty imposed, on him by the writ in his hands. Tierney v. Frazier, 57 Ter. 437; Randall v. Rosenthal, 31 S. W. 822; State v. King, 30 Ind. App. 389, 66 N. E. 85; Western Seed Co. v. McDonald, 5 Neb. (Unof.) 553, 99 N. W. 517; 35 Cyc. 1744, 1750; 1 Cooley on Torts, pp. 891 to 894. The rule, as stated by Judge Cooley (page 893), and recognized in Tierney v. Frazier, supra, as controlling in this state, is that:

“The officer may safely obey all process fair on its face, and is not bound to judge of it by facts within his knowledge Which may be supposed to invalidate it.”

Nor do we think the testimony of the witness O’Banion that the sheriff promised to hold the money paid to him until McConkin “could get the judgment and execution corrected” authorized the recovery had by appellee. It did not appear in either the pleadings or the evidence that the money would not have been paid as it was by Mc-Conkin to the sheriff had the latter not made such a promise. On the contrary, it appeared that the money was not paid until the return day of the execution, and that it was paid then “ to prevent the sheriff from levying on the property of the sureties on MeConkin’s bond.”

On the facts shown by the record it is clear, we think, that appellee’s cause of action, if any, was against the bank, and not against the sheriff and the sureties on his bond. Therefore the judgment will be reversed, and judgment will be here rendered that he take nothing by his suit.
      <S=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, i,J.

text:
    WALKER v. CHATTERTON et al.
    (No. 1748.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 6, 1917.
    Rehearing Denied March 8, 1917.)
    1. Judgment <&wkey;447(l) — -Equitable Relief-Grounds — Defense to Action.
    A suit to cancel a judgment, whether presented as an independent action or in the form of a cross-bill, is an appeal to the equitable powers of the court, and when the judgment attacked is valid on its face, the party seeking its annulment must show, not only want of service or appearance, but that he has a good defense.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 849.]
    2. Judgment <&wkey;871 — Equitable Relief — Evidence.
    In an action to revive a judgment, where defendant offered to prove want of any service in the original suit or of appearance, and that he had a partial defense, but such evidence was not such as required a different judgment on 'the merits, the refusal of the trial court, after hearing the evidence, to consider it, on the ground that it was inadmissible for any purpose as a defense and that the judgment was valid and conclusive, was not error.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1610, 1612.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by G, A. Chatterton and others against L. E. Walker. From a judgment for plaintiffs, defendant appeals.
    Affirmed.

      . Y. D. Harrison, of Marshall, for appellant. F. H. Prendergast, of Marshall, for appellees.
   HODGES, i,J.

This suit was instituted by the appellees against 'the appellant to revive a judgment.. The .appellant pleaded; among other defenses, that the judgment sought- to be revived had been rendered against him without any notice, service of process or appearance by him, and for that reason was void. He also pleaded payment in part of the debt upon which the judgment was founded. In a trial before the court without a jury judgment was rendered in favor of the plaintiff below, reviving the judgment and allowing a credit of $3,300 as payment made after the rendition of the original judgment. The court filed findings and conclusions which furnish a fair statement of the material facts and the issues involved, which are substantially as follows: On August 12, 1904, W. A. Chatterton, under whom the appellees claim, recovered a judgment in the district court, of Harrison county, Tex., in cause No. 11063, in which there were three defendants, the Texas Southern Railway Company, the Delaware Western Construction Company, and the appellant, L. E. Walker. The basis of that suit was a note executed by the Delaware Western Construction Company in the gum of $15,000, bearing 10 per cent, interest per annum. Judgment was rendered in favor of the plaintiff in that suit against the Delaware Western Construction Company and D. E. Walker in the sum of $16,550, and against the Texas Southern Railway Company for the sum of $31,500. The judgment contained the following recital:

“This day came on to be heard the above cause, and the plaintiff appeared by attorney and the defendants appeared by attorney, and the matters of law and of fact were submitted to the court without a jury, and the court heard the pleadings and evidence and finds for plaintiff,” etc.

In September, 1904, $3,300 had been paid on that judgment. Since that time the Texas Southern Railway Company has become insolvent; all of its property has been sold and its .charter forfeited. The Delaware Western Construction Company is also insolvent, has ceased to do business, and its charter has been forfeited. No execution was ever issued on that judgment, and at the time this suit was instituted it was dormant. W. A. Chatterton, the original plaintiff, died in April, 1910, leaving as his only heirs and representatives the plaintiffs in this suit. L. E. Walker, the appellant, was president of the Delaware Western Construction Company and of the Texas Southern Railway Company, and upon,"him was- served the process in cause No. 11063 against those two companies. After the rendition of the. judgment in favor of Chatterton in that suit the Texas Southern Railway Company was'placed'in the hands of a receiver, ánd Chatterton, the owner of that judgment, becamé one of the interveners in the receivership proceedings. The appellant,. Walker,. assisted the . attor-. neys for the receiver1 in an effort to set aside that -judgment, and was connected in different ways with other proceedings involved in the receivership. The court also finds that .Walker knew of the pendency, of the suit against the Texas Southern Railway Company, the Delaware Western Construction Company and himself as early as August 25, 1904, but that he did not then know that judgment had been rendered against him individually.

The record contains a bill of exception, in which it is stated that the appellant offered to prove the want of any service upon Walker in the original suit and the fact that he had made no appearance and had not authorized any person to appear for him.. He also offered evidence, some of which tended to show a partial defense to the judgment rendered against the appellant. It appears from the record that the court, after hearing the evidence, refused to consider it, upon the ground that it was inadmissible for any purpose as a defense in this suit, holding that the judgment was valid and conclusive. It is contended that this action of the court was error, and several assignments based upon that proposition are presented in the appellant’s brief.

The appellant insists that his answer was not merely a defense to the suit to revive the original judgment, but that it was in the nature of a bill of review seeking to set aside the original judgment upon the ground that the latter was void for lack of jurisdiction over the person of the appellant at the time it was rendered. Conceding that this contention is correct, that the evidence tending to show that no citation had ever been served upon the appellant, and that he had not appeared in the original suit, was material and admissible, the propriety of the court’s refusing to consider such testimony must depend upon other conditions. A suit to cancel a judgment, whether prosecuted as an independent action or in the form of a cross-bill, is an appeal to the equitable powers of the court. When the record discloses that the judgment attacked is valid upon its face it devolves upon the party seeking its annulment to show, not only no service of citation or appearance, but that he has a good defense to the suit. House et al. v. Collins, 42 Tex. 486; August Kern Barber Supply Co. v. Freeze, 96 Tex. 516, 74 S. W. 304; Masterson v. Ashcom, 54 Tex. 324.

The trial court heard all of the evidence offered, and passed upon its -sufficiency as a defense or as grounds for setting aside the original judgment. That evidence is not' such as required the rendition of a different judgment upon the merits. It follows therefore that, the facts being such as to warrant a finding of an insufficient de-. fense to the original suit, we must assume that the trial court was justified in rendering the judgment from which this appeal is prosecuted, and it is accordingly affirmed.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes'


author: HODGES, J.

text:
    AMERICAN INS. UNION v. ALLEN.
    (No. 1710. )
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 11, 1917.)
    1. Insurance <&wkey;813-Assignment by Beneficiary — Rights of Assignee.
    Where the beneficiary named in a policy of fraternal benefit insurance assigned in writing all his rights under the policy, such an assignment vested the assignee with both the legal and equitable title to the policy, and the as-signee alone could sue upon it.
    [Ed. Note. — For. other cases, see Insurance, Cent. Dig. 1994.]
    2. Insurance <&wkey;815(l) — Action on Policy —Petition—Sufficiency.
    Where the "Beneficiary named in a policy of fraternal benefit insurance after assigning the policy in writing brought suit against the insurer for the use and benefit of the assignee without alleging in the petition that the assignee was under legal disability which prevented her suing in her own name, or that she had authorized the suit to be instituted, as the judgment could be interposed as a bar to a subsequent suit by the assignee only by proof aliunde the record that the assignee had authorized the suit, or had accepted the benefits of the judgment in some way that would estop her from maintaining a second suit, the petition showed no right in the plaintiff to bring or maintain the suit, and the court should have sustained a demurrer, since the defendant, when sued, has the right to insist that the record as to parties shall be in such condition that the judgment rendered against him will bar a subsequent recovery upon the same cause of action.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1996.]
    3. Pleading &wkey;>416 — Waiver of Error in Ruling on Demurrer.
    In a suit by the beneficiary named in a policy of fraternal benefit insurance brought for the use of and benefit of his assignee, where defendant demurred to the petition on the ground that it did not show a right in plaintiff to bring the action, and after his demurrer was overruled admitted the cause of action to acquire the right to open and close as provided by rule No. 31 (142 S. W. xx), he did not thereby waive his right to complain of the ruling on the demurrer.
    [Ed. Note.- — For other cases, see Pleading, Cent. Dig. §§ 1397-1400.]'
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Suit by B. F. Allen against the American Insurance Union. Judgment for plaintiff, and defendant appeals.
    Reversed, and cause dismissed.
    Sam H. Smelser, of Texarkana, for appellant. Wheeler & Wheeler, of Texarkana, for appellee.
   HODGES, J.

The appellant is a fraternal benefit society, and this suit is to recover upon an insurance policy issued upon the life of Mrs. Evolyn L. Allen in which the appel-lee, B. F. Allen, was named as beneficiary. The petition begins as follows:

“Now comes Ben F. Allen for the use and benefit of Mrs. O. A. Dowdy, who resides in Dallas county, Tex., hereinafter called plaintiff, complaining of the Union American Insurance Company, á corporation organized and doing business under the laws of the state of Ohio,” etc.

The petition then proceeds with the usual averments, alleging the issuance of the policy upon the life of Mrs. Allen in which plaintiff was named as the beneficiary, and alleges the death of Mrs. Allen, the amount for which the policy was issued, the presentation of proofs of death, and the failure of the appellant to pay the amount due. It then proceeds as follows:

“Plaintiff shows to the court that he has by an instrument in writing duly assigned, transferred, and sold his interest in said policy of insurance to Mrs. O. A. Dowdy, of Dallas county, Tex., and this suit is brought for her use and benefit.”

The petition concludes with a prayer for judgment in favor of the plaintiff for the sum of $33.33, with interest, damages, and attorney’s fees.

Appellant excepted to the petition, upon the ground that it showed no right in the appellee to. bring or maintain this suit. In addition to this the appellant also pleaded false statements made by the insured in her application in answer to questions by the examining physician concerning her previous health. The court overruled the demurrer and submitted the case upon special issues, and upon the answers judgment was entered in favor of the appellee for the amount sued for. At the conclusion of the evidence the appellant requested a peremptory instruction in its favor. This was refused and duly excepted to.

The first question presented on this appeal is: Did the petition disclose a cause of action for which the appellee, B. F. Allen, could sue? The petition shows upon its face that the policy and all rights in it had been assigned by the appellee, Allen, to Mrs. Dowdy. Such an assignment invested Mrs. Dowdy with both the legal and equitable title to the policy, and she alone could sue upon it. East Texas Ins. Co. v. Coffee, 61 Tex. 287; Cleveland v. Heidenheimer, 92 Tex. 111, 46 S. W. 30; Winn v. Ft. W. & R. G. Ry. Co., 12 Tex. Civ. App. 198, 33 S. W. 593.

It is contended by the appellee that the suit is for the use and benefit of the assignee, Mrs. Dowdy, and that the latter is the real party plaintiff. If such is the legal construction that should be placed upon the petition, some of the doubts as to its sufficiency might be removed. The defendant when sued has the right to insist that the record as to parties shall be in such condition that the judgment rendered against him will bar a subsequent recovery upon the same cause of action. East Texas Ins. Co. v. Coffee, supra. In this case it is not alleged that Mrs. Dowdy was under any legal disability which prevented her from suing in her own name; neither is there any averment that she has authorized this- suit to be instituted. If the judgment rendered is permitted to stand, there is nothing in the record which would interfere with her right to institute and prosecute a second suit upon the same policy. In such an event this judgment could he interposed as a bar only by proof aliunde the record that Mrs. Dowdy, the assignee, had authorized the suit, or had accepted the benefits of the judgment in some way that would estop her from maintaining a second suit. In short, she could be defeated, not by the judgment itself, but by some matter in estoppel dependent upon the existence of extraneous facts. The law will not expose a defendant to such hazards, especially when there is no necessity for doing so. The court should have sustained the demurrer and dismissed the case.

It is urged, however, that the appellant, having filed an admission of the plaintiff’s cause of action in compliance with rule 31 (142 S. W. xx) in order to get the privilege of opening and closing the argument, in effect waived the defect in the petition. Such admissions do not waive the issues of law presented in demurrers. Johnson v. Clements, 23 Tex. Civ. App. 112, 54 S. W. 272.

The judgment of the trial court is therefore reversed, and the cause dismissed, without prejuuice to the right of Mrs. Dowdy to institute proper legal proceedings in her own name on the policy involved in this suit.
      ®=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEW, J.

text:
    RED RIVER NAT. BANK v. FERGUSON et al.
    (No. 1664.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 18, 1917.
    Rehearing Denied Feb. 15, 1917.)
    1. Husband and Wins &wkey;>85(3) — Wife’s Joint Note — Liability.
    Under the common law a married woman was not bound by a promissory note executed by her jointly with her husband, but it was tiie note alone of the husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 334, 339.]
    2. Husband and Wife <@=^87(3) — Wife’s Suretyship for Husband — Statute.
    Under Rev. St. 1911, art. 4624, as amended by Acts 33d Leg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4624), providing that a wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband in such contract, the wife cannot become surety for her husband’s debt or obligation; as the requirement that the husband must join with her refers ’ to the obligation of some person other than the husband.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 348, 350, 798.]
    3. Husband and Wife &wkey;>S5(l) — Wife’s Contracts — Joint Note with Husband-Statute.
    Under Rev. St. 1911, art. 4624, as amended by Acts 33d Leg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4624), providing that a wife shall never be the joint maker of a note, a wife is not authorized to become a comaker or co-principal' with her husband on his note.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 334, 336, 337.]
    4. Bills and Notes @=s>121 — Joint Obligors —Surety.
    Joint obligors on a note are, as between themselves, each sureties for the payment of the shares of the others.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 255, 256.]
    5. Husband and Wife <&wkey;85(l) — Wife’s Contracts-AToint Note with Husband-Statute.
    Under Rev. St. 1911, art. 4621, as amended by Acts 33d Leg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4621), giving the wife the sole management, control, and disposition of her separate property, article 4622 (article 4622), relating to community property, and providing that the wife’s personal earnings, rents from her realty, interest on her bonds, note, and dividends on stock shall be under her sole control, and article 4624, providing that community property other than wife’s personal earnings and income from separate property shall be subject to her debts, and that she shall never be joint maker of note of another without joinder of her husband in the contract, and in view of Acts 32d Leg. c. 52 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4629a to 4629d), enacted after the revision of that year removing the disabilities of coverture ■ for certain purposes and conferring upon married women whose disabilities had been removed the rights of a feme sole, a married woman cannot become a joint maker with her husband in his note.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 334, 336, 337.]
    6. Statutes <&wkey;217 — Construction — Legislative Journals.
    The construction of a statute may be aided by reference to the legislative journals.
    [Ed. Note. — For other cases, see .Statutes, Cent. Dig. § 293.]
    Appeal from District Court, Red River County; W. F. Moore, Special Judge.
    Suit by the Red River National Bank against J. E. Ferguson, Bessie Ferguson, and the sureties on their note. Judgment for plaintiff against J. E. Ferguson and the sureties, and that plaintiff take nothing against defendant Bessie E. Ferguson, and plaintiff appeals.
    Affirmed.
    The appellant, Red River National Bank, brought the suit in the district court against J. E. Ferguson, Bessie Ferguson, Dave Watson, and A. L. Robbins upon a promissory note payable to appellant. J. E. Ferguson made no answer to the suit. Bessie E. Ferguson answered by general denial and by plea of coverture, averring that the note was not given for an indebtedness or obligation incurred by her or for or on account of her separate .estate. Dave Watson and A. L. Robbins each answered and pleaded surety-ship for their codefendants J. E. and Bessie E. Ferguson. The plaintiff replied to Bessie E. Ferguson’s plea of coverture, admitting that at the time of the execution of the note she was a married woman and the wife or J. E.* Ferguson, but averred that the note was made and delivered to the use and benefit of the community estate of herself and husband, and that both received and derived a common and mutual benefit therefrom, and that in making and executing the written obligation she joined by and she joined with her husband J. E. Ferguson, and that by reason thereof both J. E. Ferguson and Bessie E. Ferguson are jointly and severally liable for the amount of the note, and that the separate property of Bessie E. Ferguson over and above exemption of law is liable for the debt. By supplemental answer Bessie E. Ferguson averred that the indebtedness for which the note was given was not incurred by her, but “was incurred by J. E. Ferguson in conducting a farming business.”
    The case was tried before the court without a jury. The court entered judgment in favor of the plaintiff against J. E. Ferguson as principal and Dave Watson and A. L. Robbins as sureties for the amount of the note, principal, interest, and attorney’s fees, and that the plaintiff take nothing against Mrs. Bessie E. Ferguson. The following are the findings of fact and conclusions of law of the trial court:
    “(1) Findings of Fact.
    “(a) I find that the note sued on in this case was dated February 21, 1914, due November I, 1914, and in the principal sum of $1,923, and bears interest at 10 per cent, per annum from date until paid, and provides for the payment of 10 per cent, attorney’s fees if collected by law, and is owned by plaintiff.
    “(b) That said note was signed by defendants J. E. Ferguson and Bessie E. Ferguson as principals, and by defendants Dave Watson and A. L. Robbins as sureties. ■
    “(c) That at the date of the signing said note said Bessie E. Ferguson was a married woman, and that she and the said J. E. Ferguson were then, and are now, husband and wife.
    “(d) That said note was not signed by said Bessie E. Ferguson by reason of any debt contracted by her for necessaries furnished herself or children, or on account of any expense incurred by her from the benefit of her separate estate, or on account of any obligation incurred by her in the management by her of her separate estate.
    “(2) Conclusions of Law.
    “I conclude as matter of law that notwithstanding the so-called Married Woman’s Act passed by the Thirty-Third Legislature was in effect at the time of the signing this note, the said Bessie E. Ferguson under the facts proved is not liable thereon, and that as to her the plaintiff should take nothing, but is entitled to judgment against defendants J. E. Ferguson as principal and defendants Dave Watson and A. L. Robbins as sureties for the amount of said note, principal, interest, and attorney’s fees.”
    In view of the finding of the court, and in the light of the pleadings, it would appear as a fact that the indebtedness for which the note was executed was a community debt incurred by the husband, J. E. Ferguson. It does not appear in the record by pleading or evidence that Mrs. Bessie E. Ferguson has by any decree of the district court declared a feme sole for mercantile and trading purposes, as provided by article 4629d of Vernon’s Say les’ Statutes.
    The appellant appeals from the judgment in favor of Mrs. Bessie E. Ferguson.
    Mahaffey, Keeney & Dalby, of Texarkana, and J. R. Kennedy, of Clarksville, for appellant. Burdett, Connor & Dailey, of Paris, for appellees.
   LEW, J.

(after stating the facts as above). The note sued upon is, so the trial court held, in virtue of the facts, the note alone of the husband in legal effect, and the wife is not bound by it. And the proposition maintained -by the appellant is that a married woman, under the present statute, can execute and is legally bound by a promissory note signed by her jointly with her husband.

Under the common law a married woman is not bound by a promissory note executed by her jointly with her-'husband. It is the note alone of the husband. And it is the ruling of the court in this state that article 4624 before amendment did not authorize a married woman to contract a debt except for necessaries for herself or children, or for the benefit of her separate property. Trimble v. Miller, 24 Tex. 215; Covington v. Burleson, 28 Tex. 371; Rhodes v. Gibbs, 39 Tex. 441; and others.

Therefore, if the wife has any enlarged power to bind herself personally by a simple note, it would be so because such power of personal contract is conferred upon her by the Act of 1913 (p. 61) amendatory of articles 4621, 4622, and 4624, R. 'S. of 1911. As amended article 4624 reads:

“Neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payment of debts contracted by the wife, except those contracted for necessaries furnished her or her children: Provided, the wife shall never be the joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

By the language of the proviso authority is not positively given or reserved to the wife to generally bind herself by personal contract, but she is negatively debarred from doing the things therein mentioned, except in the way provided. And, being expressly debarred from contracting except in the way provided respecting the things mentioned in the proviso, the wife cannot go beyond the powers so conferred upon her, nor outside the way and purposes authorized by the proviso in the article. The wife “shall never be,” as the proviso says, (1) “the joint maker of a note” or (2) “a surety upon the bond or obligation of another” without the joinder of her husband with her in making “such contract.” As the wife is authorized, by implication, only to become surety on the “obligation of another” by “the joinder of her husband with her in making such contract,” the authority of the wife to become surety for the husband’s debt or obligation would not be within the terms of the proviso-; for the surety contract for the obligation of “another” that the husband must assent to the wife’s making, and which he must join with her in making, clearly intends to refer and apply to the obligation of some person other than the husband. And neither was it intended by the language of the proviso, we conclude, to authorize the wife to Become a comaker or coprincipal with her husband in his note; for joint obligors on a note are, as between themselves, each sureties for the payment of the shares of the others. 1 Brandt on Suretyship (3d EH.). § 48. And where the wife and husband merely conjointly sign the husband’s note, the undertaking of the wife is in legal effect that of a surety for her husband, which is not within the spirit or purpose of the proviso.

Since the terms of the proviso being considered do not extend and have application to the note here sued upon, the authority of the wife to become a comaker with her husband in his note must be determined by a consideration of the amendatory act; for, if a wife is empowered by the amendatory act, considered as a whole, to contract generally as if she were unmarried, then she may make the contract sued upon. As amended, article 4621 defines the separate property of the husband and wife. The rights of the wife in respect to separate property are placed upon the basis and to the extent of—

“the sole management, control and disposition of her separate property, both real and personal: Provided, however, the joinder of-the husband in the manner now provided by law for conveyance of the separate real estate of the wife shall be necessary to an incumbrance or conveyance by the wife of her lands, and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this act.”

Article 4622 defines the common or community property of the husband and wife. As to such community property it is provided that it—

“during coverture may be disposed of by the husband only: Provided, however, the personal earnings of the wife, the rents from the wife’s real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621, as herein above written.”

And article 4624 has been set out above. By these articles there is clearly conferred upon the wife the authority of management, control, and disposition, with certain limitations, of her separate property. But the phraseology of the entire amending act does not point out nor in words undertake to give to a married woman the right generally to make personal contracts, in distinguishment between contracts of conveyance or disposition of her separate property. And the language necessary to create and give to a married woman the power generally to bind herself personally as if a feme sole is not within the terms and scope of the amending act. Such debts as shall be for the benefit of her separate estate is sense in which the words “debts contracted by the wife,” as found by the act, were intended to be used. And the act does not provide for the wife’s liability on contracts not for .her benefit. So, in the absence of a provision to that effect in the amending act, the amending act may not, it is concluded, be’ construed as of itself in-. tending to entirely do away with the disabilities of coverture and confer full contractual capacity on married women. The act is rendered clearer by a reference to the legislative journals. 2 Lewis’ Sutherland on Stat. Const. (Ed. 1904) § 471; Black on Interpretation of Laws (Ed. 1896) p. 224; United States v. Railway Co., 91 U. S. 72, 23 L. Ed. 224; Aldridge v. Williams (U. S.) 3 How. 9, 11 L. Ed. 469. As the bill was originally passed (House Journal, p. 1156), article 4624 provided:

“.The wife may make any contract which she would be authorized to make but for her marriage, except those herein or elsewhere forbidden, and her coverture shall never be a defense in any suit or action based on such contract, but suits may be brought thereon in the manner prescribed by articles 1840 and. 1841: Provided, however, that neither the separate property of the husband nor the community property other than the personal earnings of the wife, and the income, rents and revenues from her separate property shall be subject to the payments of debts contracted by the wife, except those contracted for necessaries furnished her or her children: Provided, the wife shall never be a. joint maker of a note or a surety on any bond or obligation of another without the joinder of her husband with her in making such contract.”

But a concurrent resolution recalled the bill from the Governor. Id. pp. 1254, 1351. And the bill as finally passed is in its pres, ent form. Id. p. 1387. It will thus be seen that all that portion of article 4624 in the original bill which expressly removed the disability of coverture was left out, and the proviso which limited or restricted the right to make certain contracts was retained. If the Legislature had intended to remove, any of the disabilities of coverture theretofore existing it is not likely that it would have deliberately dropped from the bill language expressive of that intent and retained that portion which could operate to qualify or restrict the new rights theretofore granted. If we confine our consideration to. the law as amended in 1913, this proviso in article 4624 is meaningless and would seemingly have no place in the statute relating to married women. If it is to be regarded as a limitation upon the right of a married woman to make contracts, it presupposes the existence of a right which may be thus limited. It must have something to which it can apply. The failure to discover in the amended article or any other provision of the law any right upon which it could Operate asa limitation has apparently authorized the inference that it ■was intended as constructive legislation and designed as an indirect metliod of conferring tire right to certain kinds of contracts. That inference rests entirely upon the ground that unless so considered the proviso is meaningless. But we are not reduced to that choice; for the act of 1911 (Acts 32d Leg. c. 52 [Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 4629a to 4629d]) enacted after the codification of that year as a separate statute provided for the removal of the disabilities of coverture, for certain purposes, and conferred upon married women whose disabilities had been removed the rights of a feme sole. As such she might make any character of contracts binding herself personally, except those conveying property. This was a part of the existing law at the time article 4624 was amended, and we must assume that the Legislature had it in mind. Here was a right to contract upon which the limitation in the proviso in article 4624 could operate. A married woman now emancipated from the disabilities of coverture by complying with the provisions of the act of 1911 would unquestionably be subject to that restriction, and cannot now claim the right to make the joint contracts referred to in article 4624 without the joinder of her husband. It is not therefore necessary to give meaning to the proviso that it be construed as indirectly conferring a right upon married women to make such contracts.

It is believed that the trial court did not err in his ruling upon the facts of this case, and therefore the judgment should be affirmed.

It is so ordered.
      <S=»For other ca.ses see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. HUGHES et al.
    (No. 1708.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 25, 1917.
    Rehearing Denied Feb. 1, 1917.)
    1. Removal op Causes <©=527 — Right op Removal.
    The fact that a railroad company is incorporated by congressional act does not entitle it to remove an action from a state to a federal court.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 64-68.]
    2. Appeal and Error <©=>1043(7) — Denial op Continuance — Harmless Error.
    Failure to grant defendant a continuance where amendment at trial raises a new issue is without prejudice where court’s charge does not authorize a finding on such issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4121.]
    3. Pleading @=248(11) — Amendment—New Cause op Action.
    In an action for wrongful death, amendment of allegation that blow caused death by reciting that deceased suffered a shock to his back, etc., is a mere amplification, and does not raise a new issue.
    [E'd. Note. — For other cases, see Pleading, Cent. Dig. §§ 693-695.]
    4. Trial @=3256(8) — Instructions — Suppi-ciency.
    Where a court correctly states the law under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6484, on authority of a railroad company to cut down trees on land of another, defendant, in the absence of a request, cannot complain that such instruction does not also embody law of articles 6505, 6530, requiring consent of owner.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 636.]
    5. Carriers @=3291 — Duty to Passengers— Degree op Care.
    A carrier of passengers must use a high degree of care to discover and remove dangerous obstructions on its track.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1170-1176.]
    6. Appeal and Error @=31062(1) — Harmless Error — Submission op Uncontroverted Issues.
    The submission of uncontroverted issues, where not confusing or misleading, is harmless error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    7. Trial @=3194(16) — Instructions—Weight op Evidence.
    An instruction that unless you believe from the evidence by a preponderance thereof that the said injuries, if any, received by said H. were direct and proximate cause of death, you cannot find for plaintiff, is not on weight of evidence in assuming that defendant is responsible for injuries.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 466.]
    8. Carriers @=3317(6) — Injuries to Passenger-Evidence.
    On issue whether a railway company was negligent in not discovering position and condition of a tree before it fell onto its track, evidence that track was straight for a distance of 200 yards north of where tree stood is admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1301.]
    9. Evidence @=474(3) — Opinion Evidence-Appearance op Deceased.
    One who had known deceased for 15 years was competent to testify that after injury he “did not appear natural.”
    [E'd. Note. — For other cases, see Evidence, Cent. Dig. § 2197.]
    10. Negligence @=330 — Evidence—Custom-Admissibility.
    In the absence of contract, where negligence is the foundation of a right, custom cannot be set up to show that negligence does or does not exist.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 49.]
    11. Trial @=382 — Objections—Scope.
    In action for wrongful death, evidence that railway company did not produce conductor and brakeman who were present at accident is not subject to objection that it is immaterial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 194-210.]
    Appeal from District Court, Cass County; H. F. O’Neal, Judge.
    Action by Beulah Hughes and others against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.

      This appeal is from .a judgment against appellant and in favor of appellees, to wit, Mrs. Beulah Hughes, thei widow, Mrs. Virginia Hughes, the mother, and Mabel, Hazel, Marshall G., George T., Jessie L., and Beulah Ruth Hughes, the children of George E; Hughes, for $15,000 asi damages they were entitled to because of the death of said George E. Hughes,' which they alleged was caused by an injury sustained by him as a result of negligence of appellant while he was a passenger on one of its trains. In their original petition appellees, after alleging that appellant, on December 3, 1914, negligently permitted
    “a large pine tree to stand within about 65 feet of its line of railway and within reach of said railway should the same fall,' which was at all times a menace and imminent danger to passenger traffic over said railway. That said tree was liable at any time to fall across the said track of said railway. That for a long period prior to the above date defendant had notice of the dangerous condition of said pine tree, or by the exercise of ordinary care could have learned of its dangerous condition, and it was the duty of defendant to have removed said tree long prior to said date,”
    further alleged that on said December 3, 1914,
    “said tree, just prior to the time the passenger coach on which said George E. Hughes was riding had reached the point opposite same, had fallen toward and on said railway track, extending the limbs and branches of the same across said railway track and on and against said railway train, so that the limbs of said tree, which were large and dangerous, and without any fault on the part of said George E. Hughes, and while said train was being rapidly propelled by the agents and employés of defendant, struck said George E. Hughes on the back of the head, and just in the rear of his left ear, a severe blow, thereby * * * badly lacerating and bruising his head and causing a severe shock, and * * * did fracture Ms skull and inflict upon him a painful and fatal injury, from which said wounds and injuries aforesaid he languished until on or about the 14th day of October, 1915, when he died.”
    In the amended petition, on which the trial was had, the allegations in regard to the position of the tree, the danger therefrom to trains, and appellant’s knowledge thereof were repeated and followed by allegations that when the train reached a point on appellant’s track opposite point where the tree had been standing it
    “collided with said tree, and the limbs and branches thereof which obstructed the track of defendant and the safe passage of said train, which was occasioned by said tree falling on or across the track or on the train of defendant, collided with said train, on which the said George E. Hughes was being conveyed; and plaintiffs allege that as the result of said collision with said tree, which had fallen on the track, or on the train, of the defendant as aforesaid, and by reason thereof a limb of said tree, or some part of said tree, struck the said George E. Hughes on the back of his head a severe blow, thereby seriously and fatally wounding the said George E. Hughes, and said wound inflicted as aforesaid did then and there bruise and wound him on his head, causing a severe shock to his head, back, spine and nervous system, and by the means aforesaid and in the manner aforesaid * * * injured his brain and the blood vessels leading thereto, and from which wound and injuries he, the said George E. Hughes, languished until about the 14th day of October, 1915, when he died.”
    It sufficiently appeared from the testimony that on the morning of December 3, 1914, deceased and his brother, John Hughes, were passengers on one of appellant’s trains from Atlanta to Texarkana; that they sat together on a seat in the car, deceased being next to a window thereof; that when the train reached a point between Alamo Station and Sulphur river, and while it was moving rapidly, it collided with the limbs of a tree which had fallen toward appellant’s track; that one of the limbs, after breaking the glass of the window by which deceased was sitting, struck him- back of his ear on the left side of Ms head; that as a result of injury inflicted by the blow he died in October, 1915; and that by his death appellees were damaged in the sum found by the jury. John Hughes’ account of the accident, testifying as a witness, was as follows:
    “At the time he [deceased] was injured he was sitting by the window, and he was on my left, and we were going along there talking. His face was turned toward me when he was talking, and his head towards the back of the window that he was sitting by; and all at once something hit him, or he hallooed, and he fell over on me and said, ‘I am hurt.’ He was rubbing his head and said, T am hurt.’ It was on the back of the head, just back of his left ear, along about the base of his skull. We didn’t know what had happened to the train. We noticed some of the lights of the windows were broken out, and especially the one we were sitting by. When the crash came he fell on me and threw his hand up to his head and said he was hurt, and he hallooed. At the time that he was knocked over on me I heard something like a crash, like somc-tiiing had struck the train. It made a quick racket, more like lightning had struck it than anything else.”
    Appellant’s track ran about north and south at the point where the accident occurred. The tree (a pine) before it fell stood 61 feet from the track on land west of and adjacent to appellant’s right of way. Extending from the ground about 4 feet up and along its north side, and visible from appellant’s track, was what witnesses designated as a “cat-face,” which, they explained, indicated decay, caused by a bum or something else. The cat-face was about 12 inches wide. There was no evidence that a wind was blowing at the time the tree fell, or that it fell because of any unusual condition then prevailing.
    The charge to the jury required the jury to find for appellant unless they believed it was guilty of negligence in failing to discover the dangerous situation and condition of the tree and remove it prior to the time it fell. The jury found, on evidence which, we think, authorized them to do so, that appellant was guilty of negligence in the particulars stated.

      Glass, Estes, King & Burford, of Texar-kana, and Figures & Stewart, of Atlanta, for appellant. O’Neal & Allday and Hugh Carney, all of Atlanta, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The court did not err in overruling appellant’s petition to remove the cause from the state to a federal court on the ground that it was incorporated under an act of Congress. T. & P. Ry. Co. v. Hanson, 189 S. W. 289.

In their original petition appellees alleged, as is shown in the statement above, that the tree fell “just prior to the time the passenger coach on which said George E. Hughes was riding had reached the point opposite same,” and that deceased was struck by limbs of the tree on the back of his head, “causing a severe shock” and fracturing his skull, from the effects of which he died. , The allegation as to the time when the tree fell was not carried into the amended petition, on which the trial was had filed on the day before the trial commenced, but it was alleged therein that the collision, “was occasioned by said tree falling on or across the track or on the train”; and, as a further consequence to the deceased of the injury caused by his being, struck on the head by limbs of the tree, it was alleged that he suffered a severe shock to his hack, spine, and nervous system. On the ground that it was surprised by allegations made for the first time in the amended petition, as indicated, appellant moved the court for a continuance of the cause when it was called for trial, and in several assignments complains of the action of the court in overruling its motion.

The contention, with reference to the change in the allegations as to the falling of the tree, is, that negligence on the part of appellant in failing to discover the tree on the track after it fell, and remove it, or so operate the train as to avoid injury to passengers, could not he predicated on the allegations in the original, but could be predicated on those in the amended petition. If it should be conceded that this was true, and that appellant was entitled to time to prepare to defend against negligence in those respects, the error of the court in overruling the motion would appear to be harmless, because the court in his charge did not authorize the jury to find appellant to have been guilty in the particulars stated. The jury were authorized by the charge to find in appellees’ favor only in the event they believed appellant was negligent in failing before the time when the tree fell to cut down and remove it. Franks v. Williams, 37 Tex. 24; Turner v. Faubion, 36 Tex. Civ. App. 314, 81 S. W. 810; Ry. Co. v. Shieder, 26 S. W. 509.

The allegation in the amended petition that the deceased suffered a shock to “his back, spine, and nervous system” did not entitle appellant to a continuance. Had the suit been for damages for personal injuries not resulting in death, and had the trial been on the original petition, testimony that the blow on the head resulted in shock to deceased’s back, spine, and nervous system would have been admissible in support of the allegation in said original petition that the blow on his head “caused a severe shock.” Railway Co. v. Trout, 152 S. W. 1137. But the suit was for damages for the death of Hughes' caused by limbs on the tree striking him on the head. Doubtless a blow on the head sufficient to cause his death necessarily would have caused shock to liis back, spine, and nervous system, and the allegation in the amended petition that the blow caused such shock should be treated as a mere amplification of the allegation in each of the petitions that the blow caused his death. The ultimate fact to be established to entitle appellees to recover as they sought to was that the blow on the head killed 'Hughes. Other consequences to him of the blow were merely evidence tending to establish such ultimate fact, and need not have been alleged as a basis for proof thereof. Telegraph Co. v. Hirsch, 84 S. W. 394.

It appeared from the testimony that appellant’s track was in the center of its right of way, which was 100 feet wide at the point where the accident occurred. It further appeared that the tree was not on the right of way, but was 11 or 12 feet from the west line thereof and on land which appellant did not own. The second paragraph of the court’s charge to the jury, which is attacked as erroneous, on various grounds, was as follows :

“Under the laws of this state railway .companies are authorized to enter on the land of any person and cut down standing trees that may be in danger of falling’ on or obstructing the track of such railway, making compensation therefor.”

The instruction was in the language, substantially, of the statute (article 6484, Vernon’s Statutes), and was not an erroneous statement of the law. It is true that the right of a railway company to go upon another’s land and cut down and remove such a tree is conditioned on its first obtaining the consent of the owner to do so, or compensating him therefor as provided by the statute. Article 6505, 6530, Vernon’s Statutes. If appellant thought it important that the jury should be informed as to the conditions on which it possessed the right, it should have prepared and presented to the court, with a request to give it, a charge embodying same.

In his charge the court told the jury it was appellant’s duty

“to exercise a high degree of care to remove all large, dangerous trees, if there were any dangerous trees adjacent to its track and near enough to fall on or across its track and thereby endanger the lives of its passengers.”

It is insisted that appellant owed to the deceased only the duty to use ordinary care to discover and remove trees standing near enough to its track to endanger, if they should fall toward the track, passengers on its trains. We do not think the rule which charges a carrier of passengers with a duty to use a high degree of care for their safety while the relationship exists should be so limited. Railway Co. v. Halloren, 53 Tex. 46, 37 Am. Rep. 744; Railway Co. v. Gresham, 106 Tex. 452, 167 S. W. 724; Rice v. Railway Co., 153 Mo. App. 35, 131 S. W. 376; O’Conner v. Railway Co., 163 Wis. 653, 158 N. W. 343. No reason why it should be is stated in the briefs, and none has occurred to us. Unquestionably, appellant owed to the deceased the duty to use a high degree of care to have its track clear of obstructions which might, by colliding with its trains, injure passengers thereon. If, to accomplish that, it was necessary to exercise a high degree of care to discover and remove nearby trees which might, as the one in this instance did, fall on and obstruct the track, we .think it was appellant’s duty to have exercised it, and that appellant would be liable for the result to a passenger of its failure to do so.

That the tree fell on appellant’s track as charged by appellees, and that deceased was a passenger on the train that collided with it, ■ were not controverted facts. The court in his charge should have assumed they existed, but instead he required the jury to find they existed before returning a verdict in appellees’ favor. This was not error entitling appellant to a reversal of the judgment. The contention made, that the instruction, because it required the jury to find undisputed as well as disputed facts in appellees’ favor, was “confusing and misleading, and calculated to lead the jury to believe that the disputed issues in the case were established as favorably to the plaintiffs as the undisputed issues,” is without merit, unless it should he assumed that the jurymen were incapable of determining from the evidence before them what facts were and what were not disputed. We do not think such an assumption should be indulged.

The seventh paragraph of the charge to the jury was as follows:

“I further instruct you that unless you believe from the evidence by a preponderance thereof that the said injuries, if any, received by the said George E. Hughes, were the direct and proximate cause of his death, you cannot find for the plaintiffs.”

It is objected that the instruction was “on the weight of the evidence, in assuming that the defendant is responsible for the injuries, if any, received by the said George E. Hughes.” If it is not plain enough — and we think it is — that the instruction is not subject to such criticism, even when considered without reference to other portions of the charge, it is when the charge as a whole is looked to.

The court did not err when, over appellant’s objection, he permitted appellees to prove by the witnesses Cameron, Allen,- and McConnell that its track, for a distance of 200 yards or more . north of the point thereon opposite the place where the tree stood before it fell was straight. Clearly the testimony was admissible for what it was worth on the issue as to whether appellant was guilty of negligence in failing, if it did, to discover the position and condition of the tree before the time when it fell. Nor did the court err when he permitted appellees to prove by the witness Price, over appellant’s objection, that he had not qualified as an expert, that the deceased, during his lifetime after he suffered the injury, “did not appear natural.” The witness had known deceased 10 or 15 years. And we think the court did not err when he refused to permit appellant to prove by Merriweather and others, roadmasters on railroads in timbered parts of Texas, Arkansas, and Louisiana,

“that they had observed the conditions and character of the right of ways of railroads in the sections mentioned, and that, as a general rule, the right of way of railroads is only 100 feet wide in said sections of the country; that from past experience and observation said railroads had adopted said widths as being safe, and had cleared the timber only to the outer edges of the right of way on each side of the railroad track; that this rule and condition existed on all the railroads in the timbered country in the states mentioned on which they had worked or had made any observation, and that this practice and system as to the width of the right of way and clearing of the same had proven safe for travel on trains, as far as their observation went.”

Railway Co. v. Evansich, 61 Tex. 3, where Judge Stayton said:

“It may well be questioned whether in any case in which, in the absence of contract, express or implied, negligence as an element, is the foundation of a right, custom may be set up for the purpose of showing that negligence does or does not exist.”

See Railway Co. v. Rowland, 82 Tex. 166, 18 S. W. 96; O’Conner v. Andrews, 81 Tex. 28, 16 S. W. 628.

The assignment in which complaint is made of the action of the court in permitting appellees to prove, over its objection, that same was immaterial to any issue in the case, that the conductor and brakeman on the train in question, who were at the trial as witnesses for appellant, did not testify, but before the conclusion of the trial were by appellant, with appellees’ consent, excused from further attendance on the court as witnesses, is overruled. The testimony was not subject to the objection urged to it. Railway Co. v. Blair, 184 S. W. 566; Landon v. Halcomb, 184 S. W. 1098.

There is no error in the judgment, and «• is affirmed.
      @=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes