author: HALL, J.

text:
    DODSON et al. v. WARREN HARDWARE CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 6, 1913.
    On Motion for Rehearing, Jan. 3, 1914.
    Rehearing Denied Jan. 17, 1914.)
    1. Garnishment (§ 87) — Proceedings to Procure — Affidavit—'‘ ‘Firm. ’ ’
    Where the affidavit and writ of garnishment described plaintiff as the W. company, a firm composed of persons named, it sufficiently appeared that plaintiff was a partnership and not a corporation, since a “firm” is a partnership.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 156-159, 163-166; Dec. Dig. § 87.

    For other definitions, see Words and Phrases, vol. 3, p. 2820.]
    2. Garnishment (§ - 64) —Nature of Proceeding — Docketing.
    While garnishment proceedings should be docketed separately from the original suit, the fact that the clerk indorsed on the affidavit and writ the docket number of the original suit did not require that they should be quashed and was a mere irregularity not affecting the validity of the judgment.
    [Ed. JSTote. — For other cases, see Garnishment, Cent. Dig. §§ 133-135; Dec. Dig. § 64.]
    3. Garnishment (§ 87) — Proceedings to Procure — Aepidavit.
    Where an affidavit for a writ of garnishment recited that “Now comes the W. Company, a firm composed of C. W. W. and M. W. W.,” and after the signature recited that “O. W. W., one of the plaintiffs mentioned in the foregoing application, being duly sworn, upon •his oath says that the facts therein stated are true,” the affidavit was not defective as being made by the partnership instead of by an agent or member thereof.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 156-159, 163-166; Dec. Dig. § 87.]
    4. Garnishment (§ 44) — Property guBjECT— Judgment.
    A judgment which had been affirmed on condition that plaintiff file a remittitur was not, before a motion for rehearing was overruled, final so as to be subject to garnishment.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 90; Dec. Dig. § 44.]
    Appeal from District Court, Deaf groith County; D. B. 1-Iill, Judge.
    Garnishment proceeding by the Warren Hardware Company against g. J. Dodson and another, in which Edgar Johnson intervened. From a judgment for plaintiff, tlie defendant named and the intervener appeal.
    Reversed and rendered on rehearing.
    S. J. Dodson and Carl Gilliland, both of Hereford, for appellants. Knight & Slaton,, of Hereford, and G. W. Bareus, of Weather-ford, for appellee.

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

   HALL, J.

On April 19, 1912, S. J. Dodson recovered judgment in the county court of Deaf Smith county, against E. W. Harrison, in the sum of $155, from which judgment Harrison appealed to this court, and on December 14, 1912, the judgment was affirmed for $106, provided the overplus was remitted by appellee within ■ 30 days. This remittitur was entered in this court on January IS, 1913, judgment was affirmed for $106, and motion for rehearing filed by E. W. Harrison was overruled by this court February 8, 1913. On November 25, 1912, M. W. Warren and C. W. Warren, a firm known as the Warren Hardware Company, obtained 'a judgment in the district court of Deaf Smith county, against S. J. Dodson, for the sum of $642.86, in cause No. 556, on the civil docket of siiid court, which was at the time of the trial of this cause unpaid except the sum of $125. On December 20, 1912, O. W. Warren made an affidavit for garnishment in cause No. 556, pending in the district court, and sued out a writ of garnishment against E. W. Harrison returnable to the next term of the district court of Deaf Smith county, which convened on May 4, 1913. A writ of garnishment was issued and served the same day, requiring Harrison to answer on May 5, 1913, and the garnishment suit, as shown by the civil docket of the district court of Deaf Smith county, was numbered 558. The garnishee Harrison filed his answer on May 14, 1913, in said cause No. 558, stating that he owed the judgment of $106, with interest at 6 per cent, from date in cause No. 285, in the county court of Deaf Smith count-y, and stating further that he did not know to whom he owed the judgment since he had been informed that one Edgar Johnson was the then owner of the judgment for value. On May 27, 1913, the garnishee Harrison, in accordance with the order of the court, pai<J into the registry of the court the sum of $113.06, being the amount of the judgment in the county court, with interest to May 27, 1913. Edgar Johnson appeared as intervener in the district court case, claiming to be the as-signee for value of the judgment. The affidavit and the writ of garnishment bore the file mark of cause No. 556 in the district court, and the clerk of the district court docketed the garnishment proceedings as, cause No. 558. The case was tried before the court, whose findings, in addition to the facts above stated, are in substance as follows: it is therefore the opinion of this court, and the court so finds, that at the time S. J. Dodson transferred Ms interest in the judgment in cause No. 285, in the county court against E. W. Harrison, that the plaintiff herein, Warren Hardware Company, a firm composed of C. W. Warren and M. W. Warren, had obtained prior thereto a writ of garnishment and the same has been served on said Harrison, and that by reason thereof plaintiff had and has a superior • right to the money due on said judgment, and that the plaintiffs are entitled to said money paid into this court by said garnishee. The decree further ordered that the clerk pay to “plaintiffs, Warren Hardware Company, a firm composed of C. W. Warren and M. W. Warren, the said sum of $113.06.” The affidavit for garnishment contains the following recitals: “Now comes Warren Hardware Company, a firm composed of C. W. Warren and M. W. Warren, plaintiffs in the above-entitled cause, and, after being signed by plaintiff’s attorneys, recites: C. W. Warren, one of the plaintiffs mentioned in the foregoing application, being duly sworn, upon his oath says the facts therein stated are true.” In two places in the affidavit the word “plaintiff” is used, but in the writ we find this language: “Whereas, in the district court of Deaf Smith county, in a certain cause wherein Warren Hardware Company, a firm composed of C. W. Warren and M. W. Warren, are plaintiffs, and S. J. Dodson is defendant, the plaintiffs claiming an indebtedness against the said S. J. Dodson,” etc.

The joint brief filed by appellants Dodson and intervener Johnson is defective in many respects, and appellee objects to its consideration. It does not meet the requirements of the acts of the Thirty-Third Legislature (page 276) and rules 69 (142 S. W. x'xii), 101, and 101a for the district courts (159 S. W. xi) and rules 24, 25, 26, 27, and 31 for the Courts of Civil Appeals (142 S. W. xii, xiii).

The appellants filed a motion for new trial in the court below and in filing assignments of error failed to comply with that part of the act of the Legislature, referred to above, wMch provides that, where a motion for new trial has been filed in the court below, the assignments therein shall constitute the assignments of error. We have compared the assignments of error with appellant’s motion for new trial, filed in the court below, and in only two instances have they presented the identical questions here which were presented in the trial court. We have held in the case of Edwards v. Youngblood, 160 S. W. 288 (not yet officially reported), that this act in this particular is mandatory, but we have decided to consider some of the assignments presented in the trial court, but such consideration will be in a general way.

The preliminary statement of appellant has not been faithfully made, and what we have said in the case of K. C., M. & O. Ry. v. Whittington & Sweeney, 153 S. W. 689, is in a large measure applicable to appellants' brief. Eor instance, the appellant says, “This was an action by the Warren Hardware Company, a corporation or a partnership, nothing in the record to show which,” when the statements quoted above from the affidavit and the writ clearly state that the plaintiffs composed a firm. “A firm is a partnership.” Black’s Eaw Diet.

The first assignment of error is to the action of the court in refusing to quash the garnishment proceedings filed in cause No. 656, on the civil docket of the district court of Deaf Smith county, when the cause, if any, out of which the garnishment proceedings could issue was No. 558 on the docket of said court. The proposition under this assignment is that the law requires garnishment proceedings to be docketed separately from the original suit, after which the writ may issue and all papers filed in said gar-gishment suit may be filed under the number of said garnishment suit, and, where the affidavit and writ was filed under a different number, they should be quashed upon motion to do so. It is true that the proper practice requires the garnishment proceeding to be separately docketed, and that seems to have been done in this case, but it is not true that, where the affidavit and writ contain a different file number, they should be quashed, and one of the authorities cited by appellant (Sun Mutual Insurance Co. v. Seeligson & Co., 59 Tex. 7) expressly holds that a failure to docket the garnishment proceedings against each of the garnishees is a mere irregularity and will not affect the validity of the judgment. The mere failure of the clerk to put the proper docket number upon the affidavit and writ is not such an irregularity as has resulted in any injury to appellants, and this assignment is overruled.

The second assignment is that the court erred in refusing to quash the affidavit and writ, which affidavit was made by the Warren Hardware Company. This statement is not correct. The affidavit, as appears upon its face,- was made by “C. W. Warren, one of the plaintiffs”; and appellant’s proposition, following this assignment, that the affidavit must be made by an agent or member of the partnership, while true as a proposition of law, and is sustained by the authorities cited, cannot be upheld because the record clearly shows that the affidavit complies with the rule.

Under the fifth assignment appellant insists that a judgment which is not final is not subject to garnishment, and cites the case of Burke v. Hance, 76 Tex. 76, 13 S. W. 163, 18 Am. St. Rep. 28, to sustain the proposition. The Supreme Court, in that case, used this language: “It is not our purpose to decide that a judgment, final in the courts of this state, when all proceedings in the suit in which it was rendered, whether original or appellate, are at an end, is not subject to garnishment in other suits pending in the courts of this state, without regard to any question of inferiority of the courts.- While authorities conflict on the question, we are of the opinion that they are subject to garnishment in such eases by writs sued out after the termination of all proceedings.” In the instant case the writ was sued out while the appeal was pending in this court and before motion for rehearing was overruled.

In Waples-Platter Grocer Co. v. Railway Co., 95 Tex. 486, 68 8. W. 265, 59 L. R. A. 353, the Supreme Court, in answering a certified question from the Second district, held that a claim for any unliquidated damages against a railway company for loss for depreciation in the value of-cattle, owing to delay in transportation, was not subject to garnishment until the judgment was final. The report of that ease discloses that on January 20, 1900, the district court judgment against the railway company, in favor of Downtain, was affirmed and the motion for rehearing was overruled February 17, 1900. Based on a judgment previously rendered against Down-tain in its favor, the Waples-Platter Grocer Company caused to be issued and served on the railway company two writs of garnishment; the last one being served February 5, 1900. Subsequent to all these dates, the railway company filed its answer, setting up the facts. The first question certified to the Supreme Court was “whether, pending said appeal therefrom, the said judgment in favor of Downtain was subject to appellant’s writs of garnishment.” The Supreme Court answered the question in this language: “The demand being uncertain, it is not made certain until the amount is fixed by a final judgment of the court; that is to say, a judgment not merely final in the sense that an appeal lies therefrom, but a judgment final in the sense that it has reached that stage in judicial procedure when it can neither be set aside nor reversed on appeal. In the case of Railway Co. v. Jackson, 85 Tex. 605, 22 S. W. 1030, Chief Justice Stayton, speaking for the court, says: ‘We are of opinion that an appeal or writ of error, whether prosecuted under cost or supersedeas bond during penden-cy, deprives a judgment of that finality of character necessary to entitle it to admission in evidence in support of the right of defense declared by it, and from this necessarily follows the insufficiency of a plea in bar based on it.’ In the case of Kreisle v. Campbell, 89 Tex. 104, 33 S. W. 852, this question came before us for an application for a writ of error; but, since the judgment was sustainable upon another ground, we did not find it necessary to decide the point, and its determination was expressly waived. The Court of Civil Appeals for the Second District, however, in that case, held in accordance with our opinion. Id., 32 S. W. 581.” This seems to be the last word from the Supreme Court on this question, and the effect is to overrule the contrary holding in the case of Raley et al. v. Hancock, 77 S. W. 658, cited by appellee to sustain tbe judgment. ■This error will require a reversal.

On account of tbe condition of appellants’ brief, we decline to consider tbe remaining assignments.

Reversed and remanded.

On Motion for Rebearing.

Appellee bas filed and urges a motion for rebearing, insisting that we erred in considering tbe brief and assignments of error filed by appellant. We did not consider tbe assignments wbicb were objectionable under tbe authorities cited in appellee’s motion.

Tbe second ground urged in tbe motion is that we erred in bolding that tbe writ of garnishment issued against E. W. Harrison was prematurely issued. We have again reviewed the authorities and believe that our bolding is correct.

Tbe appellee finally insists that we erred in deciding in effect that a garnishment held only such sums as were due from tbe garnishee at tbe time the writ was served. If we had made any such bolding, appellee would be correct, but we did not bold it, and there is nothing in tbe opinion which we think can be construed as announcing any such doctrine. In fact, that question does not arise in tbe case.

Appellee insists that our opinion, as they construe it, settles tbe case, and unless we are willing to affirm tbe judgment, that it should be reversed and rendered instead of remanded, and that to reverse tbe ease means a delay of six months and possibly the expense of another appeal before final judgment can be entered. We reversed tbe case, thinking appellee might upon another trial strengthen their cas'e, wbicb a rendition of tbe judgment in this court would deprive them of.

After duly considering tbe motion, we have decided to reverse and render tbe judgment for tbe appellants, and it is so ordered.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    METERS et al. v. RILEY et al.
    (Court of Civil Appeals of Texas. Austin.
    Nov. 19, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Homestead (§ 152) — Right of Surviving Wife.
    A surviving wife may select her homestead, not to exceed 200 acres, in any shape that she may see proper, provided she selects such lands as have been impressed with the homestead character and lands contiguous thereto.
    [Ed. Note. — Eor other cases, see Homestead, Cent. Dig. § 293; Dec. Dig. § 152.]
    2. Homestead (§ 150) — Right of Surviving Wife.
    The court, in a partition suit by the children of a deceased husband and his surviving wife, must set aside the homestead for the use of the wife and her minor children so long as the same is occupied as a homestead, and no partition may interfere with such right of user, but this does not prevent the court from considering the homestead in partitioning the estate.
    [Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 294-305; Dec. Dig. § 150.]
    3.Partition (§ 83) — Adjustment of Equities — Right of Surviving Wife —Homestead.
    Where, in a partition suit by the children of a deceased husband and Ms surviving wife, the wife selected a homestead, the part of the homestead allotted to heirs must be awarded subject to the wife’s use and occupation, and the value of that use must be considered in determining the rights of all the cMldren in making an equitable division.
    [Ed. Note. — Eor other cases, see Partition, Cent. Dig. §§ 228, 229; Dec. Dig. § 83.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Action by Mrs. Ruth Meyers and others against Mrs. R. J. Riley and others for partition. From a judgment granting insufficient relief, plaintiffs appeal.
    Reversed and remanded.
    See, also, 150 S. W. 479.
    T. R. Mears, of Gatesville, for appellants. S. P. Sadler, of Gatesville, for appellees.

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

   JENKINS, J.

In so far as tbe proper disposition of this case is concerned, we deem it necessary to consider only tbe following facts: Mrs. R. J. Riley and her deceased husband, A. M. McCallister, were tbe owners of about 700 acres of land, community property, in two tracts. Tbe homestead of Mrs. Riley and her deceased husband was situated upon one of these tracts, and she continues to occupy tbe same as a homestead. Suit was brought by the children of Mrs. Riley and her deceased husband for partition of said estate. Commissioners were appointed, and they set apart to Mrs. Riley as her homestead 200 acres of land as claimed by her, and valued tbe same at $10,000. This was not taken into consideration in tbe partition. Tbe remaining lands were valued at $6,400, one half of wbicb was set aside to Mrs. Riley in fee simple, and tbe other half to tbe children.

1. It is tbe contention of appellants, first, that Mrs. Riley did not have tbe right to select her homestead in an irregular shape to tbe detriment of tbe children, who inherited one-balf of tbe community estate. We overrule this assignment, Mrs. Riley bad tbe right to select her homestead, not to exceed 200 acres, in any shape that she saw proper, provided only that she should select such lands as bad been impressed with tbe homestead character and lands contiguous thereto. Shippey v. Hough, 19 Tex. Civ. App. 596, 47 S. W. 672.

2. We sustain appellants’ assignment that tbe court erred in approving tbe report of tbe commissioners, for tbe reason that tbe same did not take into consideration tbe homestead in partitioning' tbe estate. It was tbe duty of tbe court to set aside tbe homestead for the use of Mrs. Riley and her minor children, so long as the same was occupied as a homestead, and no partition of the estate could interfere with this right of user; but it does not follow from this that the homestead should not enter into the partition of the estate. As was said by the Supreme Court in Hudgins v. Sansom, 72 Tex. 232, 10 S. W. 106:

“We see no reason why the homestead may not enter into the partition of the estate and be disposed of in any manner which does not take away the right conferred ⅜ * * to occupy it. This right to occupy is the sole right which it was the purpose to protect by the provision of the Constitution quoted; and the partition of an entire estate, of which a homestead may be a part, which does not take away this right, neither contravenes the spirit nor letter of that instrument.”
“The Constitution, after providing for the descent and distribution of property occupied as homestead, declares that ‘It shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted under the order of the proper court having the jurisdiction, to use or occupy it.’ Const, art. 16, § 52. * ⅜ ⅜ The purpose of the constitutional provision quoted evidently was to secure to the surviving wife or husband the right to use the homestead so long as he or she might elect to do so, and to protect minor children in a home so long as, in the opinion of the court having jurisdiction over the property and minors, it was necessary that they should use the homestead. It was. the light of such persons to occupy the homestead which it was the purpose of the Constitution to protect, and it therefore forbids the partition of the homestead so long as given conditions continue. The word ‘partition’ is evidently used in the Constitution in its legal sense, and means the act or proceeding through which two or more co-owners cause the thing to be partitioned to be divided into as many shares as there are owners, and which vests in each of such persons a specific part, with the right to possess it ■ freed from a like right of any other persons who before partition had an equal right to possess. ⅜ * ⅜ It is a partition of the homestead that is forbidden, but it does not follow from this that in the partition of an estate the homestead may not enter into the partition, if that may be made without defeating the right of the surviving wife, husband, or children to occupy the homestead as under the Constitution they are entitled to occupy.” 72 Tex. pages 231, 232, 10 S. W. 105, 106. See, also, Higgins v. Higgins, 129 S. W. 162.

3. We hold that Mrs. Riley had the right to select her homestead in the manner in which she did, and that she may have the exclusive use and possession of the same so long as she occupies it as a homestead, and that said use and occupation may be continued in her children under the order of the proper court, as provided by the Constitution. But this selection of the homestead need not necessarily be taken into consideration in partitioning the estate; that is to say, the title to the homestead, or portions thereof, may be vested by the partition in the heirs of Mrs. Riley’s deceased husband, but such title would not permit them to interfere with her proper use and occupation of the homestead. And in placing the value upon that portion of the homestead which is allotted in fee to other heirs, if such be the case, of course the commissioners will take into consideration that it is burdened with the homestead rights of Mrs. Riley and her children. If in the partition the homestead or a part thereof is set aside in fee to Mrs. Riley, the same should-be charged to her at its value, and if the homestead or such part thereof as shall be set aside to Mrs. Riley in fee is equal to her share of the community estate, the remainder of the estate, including the excess- of the homestead not set aside to Mrs. Riley, should be partitioned among the children of her deceased husband; the part ,of the homestead so partitioned among the children being, however, subject to the use and occupancy of Mrs. Riley and of her minor children, as hereinbefore stated.

For the reasons herein indicated, the judgment of the trial court is reversed, and the cause remanded, with instructions to partition said estate as indicated in this opinion.

Reversed and remanded, with instructions.

On Motion for Rehearing.

Appellees have misconstrued our opinion herein, as appears from their motion for a rehearing, and for fear that we may not have made our meaning plain, we write this additional opinion as explanatory of the original opinion herein.

(1) We did not hold that the land allotted to the eight children must be subdivided into eight tracts. As to some of the children, the land was allotted in severalty, and, as to some, it was not. This is not complained of by appellants.

(2) We did not hold that the value of the use and occupancy of that part of the homestead set apart to Mrs. Riley as her homestead, and not included in the land that might he set apart to her in fee should be charged to her, and thereby lessen the amount to which she is entitled as owner in fee of her interest in the community estate. The surviving husband or wife is entitled to the use and occupancy of the homestead as long as it is used as such, and is not chargeable with rent therefor.

The language in our opinion herein, which has been misconstrued by counsel for Mrs. Riley, is this; “In placing the value upon that portion of the homestead which is allotted in fee to the other heirs, if such he the case, of course the commissioners will take into consideration that it is burdened with the homestead rights of Mrs. Riley and her children.” This is a matter that does not concern Mrs. Riley. She is entitled: First, to the use and occupancy of her homestead of 200 acres as selected by her; second, to her part of the community estate in fee, which may or may not include the homestead or a part thereof.

Our statement as above quoted was not necessary to the decision of the case as now before us, and was made only to avoid a misapprehension which might cause another appeal on the part of some of the children on the ground that partition among them was inequitable. What we meant was this: After Mrs. Riley’s portion of the land has been awarded to her in fee, if any part of the land awarded to the children of her former husband, McAllister, is included in the land awarded to her as her homestead, that fact should be taken into consideration in the partition among the McAllister heirs. To illus-strate: Suppose there is a community estate of 400 acres of land, all of equal value, if improvements be not considered. The land without improvements is worth $10 per acre, or a total of $4,000; 300 acres are improved, and the improvements are of the value of $4,000, making the total value of the entire tract $S,000. As the survivor ■ of the community, the wife would be entitled to $4,000 worth of the land. There is set aside to her in fee 150 acres, on which the improvements are worth $2,500, making the value of the 150 acres awarded to her $4,000. But there is also set aside to her use as a homestead 200 acres, including the 150 acres set aside to her in fee. Thus she would receive what she is entitled to in fee and as a homestead. There are two children, who are each entitled to equal portions of the remainder of the estate. The 50 acres included in the homestead, but not included in that portion of the land set aside to the wife in fee, has improvements upon it of the value of $1,500, making its value $2,000. The other 200-acre tract is unimproved, and is of the value of $2,000. It would be inequitable to award one of the children the 50 acres and the other the 200 acres, for the reason that the homestead right of the wife would lessen the market value of the 50 acres in proportion to her age. If she was young, the child to whom this 50 acres was awarded, or its assigns, might have to wait 50 years before coming into possession. In such case, the fact that the 50 acres was burdened with the homestead rights of the wife should be taken into consideration in apportioning the 250 acres between the children.

For the reason that we believe our former opinion herein correctly disposes of this appeal, the appellees’ motion for a rehearing is overruled.

Motion overruled.


author: FLY, C. J.

text:
    UVALDE NAT. BANK v. BROOKS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1913.
    On Motion for Rehearing, Jan. 21, 1914.)
    1. Limitation of Actions (§ 46) — Cause of Action — Accrual—Time.
    An application having been made to a bank for a loan, the money was furnished April 27, 1910, and suit was subsequently instituted against the borrowers April 26, 1912. Eeld that, since the contract was not consummated until the money was furnished, the suit was brought within two years after the cause of action accrued, and was therefore not barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240-253; Dec. Dig. § 46.]
    2. Mines and Minerals (§ 104) — Corporations — Borrowing Money — Persons Liable.
    A mining corporation being indebted, and having no credit, and being unable to pay the same, defendants, its officers, met, and F., who-was cashier of a bank, stated that the bank would let defendants have the money, if they would pay it, to which B. replied that they might as well owe such bank as another; whereupon P. stated that he would put no more money into the concern, but the others said nothing. The meeting adjourned, and a draft was drawn by P., as secretary of the corporation, and cashed by plaintiff bank, and the proceeds used in paying the debts of the company. Eeld, that the officers present at such meeting, other than P., by their silence agreed to the arrangement, and were jointly and severally liable to the bank for the loan.
    LEd. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 228; Dec. Dig. § 104.]
    3. Frauds, Statute of (§ 26) — Performance of Agreement — Time — Original Undertaking.
    The promise of defendants was an original one, and, being capable of performance within a year, was not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 35^-42½; Dec. Dig. § 26.]
    Appeal from District Court, Uvalde County; R. H. Burney, Judge.
    Action by the Uvalde National Bank against R. E. Brooks and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Love & Hill, L. Old, and L. B. Lanier, all of Uvalde, for appellant. A. M. John, of Houston, Martin & Martin, of Uvalde, and Geo. C. Altgelt, of San Antonio, for appel-lees.

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

   FLY, C. J.

This is a suit instituted by appellant against R. E. Brooks, John Marbach, W. F. Miller, and F. J. Rheiner to recover the sum of $5,000, alleged to have been borrowed by them on or about April 27, 1910.

Appellees, except Rheiner, pleaded the statute of frauds, in that the promise alleged was not in writing; denied that they borrowed the money, alleging that it was loaned to the Del Carmen Mining Company, and was used by it; and also pleaded limitation of two years. Rheiner answered that he and the other defendants borrowed the money from appellant, and that it was just, due, and unpaid. The court instructed a verdict for appellees.

The money was paid by the bank on April 27, 1910; the suit was instituted on April 26, 1912. The contract was not consummated until April 27, 1910, and appellant could not have sued until on or after that date. The suit was instituted within two years after the cause of action accrued.

The evidence of Rheiner shows that ap-pellees were directors of the Del Carmen Mining Company; that the company was in debt, and it became necessary from time to time to raise money to pay its debts; that the company had no credit; and that the directors had been in the habit of raising money on their individual credit for the. corporation. Rheiner swore that he loaned the money, as cashier of the Uvalde National Bank, to appellees; that he, Miller, Palfrey, Marbach, and Brooks met in Palfrey’s office in San Antonio on April 25, 1910; that the mining company owed a debt to the Mexican Ore Purchasing .Company of $5,000; that Brooks stated that they had to go to a local bank and pay the money; that Rheiner then stated, “The Uvalde National Bank will let you have this money, if you folks will pay it.” To that statement Brooks replied, “We just as well owe the Uvalde National Bank as the Erost National Bank.” Palfrey said he would not put any more money into the concern; but the others said nothing. Brooks, during the meeting mentioned, said, “Well, it looks like another case of dig.” Rheiner said, “X stated in substance that the Uvalde National Bank would loan you fellows this money, if you will repay it, and Mr. Brooks replied that we had just as well go to the Uvalde National Bank as the Erost National Bank.” The meeting then adjourned, a draft was drawn for $5,000 by Palfrey, as secretary of the Del Carmen Mining Company, and was paid by appellant, and was used in paying debts of the company.

It is clear from what Palfrey said that he understood that the money was to be borrowed upon the individual credit of the men present at the meeting, and he refused to enter into the arrangement. The others said nothing, but permitted the money to be loaned which they knew could not be borrowed on the credit of the mining company. They placed themselves in the position of consenting to be responsible for the money. There is a maxim of equity which might be applied in this case that “he is willing who either expressly consents or tacitly makes no opposition,” as well as that other well-known maxim “that he who is silent when he should speak shall not be heard to speak when he should be silent.” There was evidence that the corporation had no credit; that its directors borrowed on their individual responsibility ; that Rheiner thought this loan was to be made in the same way; and that Palfrey alone refused to again be responsible. The case should have gone to the jury.

The contract, as alleged and proved, is not within the purview of the statute of frauds. An agreement which may or may not be performed within a year is not within the statute. Taylor v. Deseve, 81 Tex. 246, 16 S. W. 1008; Robb v. S. A. St. Ry. Co., 82 Tex. 892,18 S. W. 707. The contract was not within the statute as being a promise to pay the debt of another. It was an original undertaking upon the part of appellees, if it was an undertaking. Hicks v. Bailey, 16 Tex. 229; Lemmon v. Box, 20 Tex. 329; Wallace v. Ereeman, 25 Tex. Supp. 91; Green v. Dallahan, 54 Tex. 281; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

If four persons in business together should enter a bank, and one of them should request the loan to them of money to be used by the company or corporation of which they are members, and he states that they are bound for it, the contract would be an express contract to repay the money, and the circumstances would not create an implied contract as -to those who were silent. Their spokesman would be representing them, and would bind them as he was bound. The appellees in this cause, if bound at all, are bound by an express contract.

The cases of Krohn v. Heyn, 77 Tex. 319, 14 S. W. 130, and Moore v. Kennedy, 81 Tex. 144, 16 S. W. 740, cited by appellees, have no applicability to the facts of this case. This court fully recognizes the elementary principle that the allegations and proof must correspond, and that, if an express contract is alleged, it must be proved. That is all that is held in the two cases cited.

In each of the petitions an express contract upon the part of the appellees to repay the borrowed money was alleged, and the question of limitations does not arise in the case.

The motion for rehearing is overruled.


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. RENTZ.
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 20, 1913.
    Rehearing Denied Jan. 17, 1914.)
    1. Master and Servant (§ 89) — Existence of Relation.
    An employé is deemed to be in the employer’s service whenever he is present to perform his duties as servant and subject to orders, though at a given time he may not be engaged in the actual performance of a duty.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. § 89.]
    2. Master and Servant (§ 89) — Existence of Relation.
    Plaintiff was a locomotive engineer in defendant’s employ, and, when injured, was in the yards on his way to the roundhouse to take out his engine; it being his custom in going to work to pass through the yards. Plaintiff had reached one of defendant’s depot platforms on his way to the roundhouse, when he was called by a fireman on an engine standing in the yards, but continued walking, when another engineer called to him, whereupon he changed his course and crossed another track and stopped, waiting for three or four minutes, for the engineer who had called him, when he was struck by an engine on another track. Meld, that the relation of master and servant existed when plaintiff was struck.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 153-156; Dec. Dig. § 89.]
    3. Commerce (§ 27) — Master and Servant— Accidents or Injuries — Statutes Applicable.
    Where an engineer, when injured by being struck by a train while going through the yards to his work, was employed by a railroad company engaged in interstate commerce, any claim for damages for such injuries was governed by the federal Employers’ Liability Act (April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.]
    4. Appeal and Error (§ 989) — Findings— Conclusiveness.
    The question of contributory negligence in a railroad employé’s action for personal injuries under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. 5. Comp. St. Supp. 1911, p. 1322]) is for the jury in the trial court, and the appellate court will only examine the evidence on the question to determine whether there was any evidence from which the jury could reasonably have found a verdict for plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3897; Dec. Dig. § 989.]
    5. Master and Servant (§ 289) — Injuries-Jury Questions — Contributory Negligence.
    Evidence, in an action for injuries to a railroad engineer by being struck by a train while going through the yards to work, held to make the question of contributory negligence one for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 10S9, 1090, 1092-1132; Dec. Dig. § 289.]
    6. Master and Servant (§ 144) — Rules of Employer — Nonenforcement.
    If a rule of a railroad company, that trains should not exceed a speed of six miles an hour within its yards, was generally ignored by plaintiff and its other employes, and not enforced by the company, its nonenforcement could not be alleged as a ground of negligence by the company in an action by plaintiff engineer for injuries by being struck by another train in the yards; an excess speed not violating any law so as to be negligence per se.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 287; Dec. Dig. §
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by R. Rentz against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for a new trial.
    A. S. Coke, of Dallas, and Head, gmith, Hare & Head, of Sherman, for appellant. Wolfe, Wood & Haven, of Sherman, for ap-pellee.

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

   RASBURY, J.

Appellee recovered verdict and judgment in the court below against appellant for $6,000 for personal injuries alleged to have been negligently inflicted upon him by appellant by striking appellee with one of its engines while he was passing over and across appellant’s platform and tracks in Denison, Tex., on the way to take up his duties as a locomotive engineer for appellant, from which judgment this appeal is taken. The grounds of negligence alleged by appel-lee and the defenses urged thereto will be sufficiently disclosed in determining the several assignments of error.

The evidence introduced upon trial of the case was conflicting, but in deference to the verdict of the jury it sustains the following conclusions of fact: At the time of the accident appellee was in appellant’s employ as switch engineer. His work was performed in appellant’s yards in Denison. Appel-lee, incident to taking up his duties each day, would go from his residence to appellant’s roundhouse, where he secured his engine and set about his day’s labor. In making his way to the roundhouse it had been his custom, for six or seven years, to go south on Houston avenue (on which avenuq he lived), a north and south street, until he reached Gan-dy street, an east and west street, when he would go east to a point where he would reach appellant’s yards, whence he would pursue his way to the roundhouse between tracks 2 and 3; there being at this point six railway tracks. From and at the point where he struck the yards on Gandy street to a point south to Main street, which paralleled Gandy street, the space along his route was the ground or surface depot platform or landing place for appellant’s passengers disembarking at its depot situated on the northeast corner of Main street and Houston avenue. This landing place or platform was in part paved with brick and in part spread with gravel. Over this place was laid the tracks of appellant. It was a depot platform and used as such by the general public and appellant’s employes. At the time of the accident, appellee, as was his custom, had proceeded east on Grandy street until he reached the appellant’s tracks, at which point he changed his course, got between tracks 2 and 3, and started south for the roundhouse. While so pursuing his way and yet upon the platform, and at a point within about 125 or 150 feet of Main street, the fireman on an engine standing on track four called to appellee, who did not halt, but continued his progress a few steps further, when the engineer motioned and also called to him, at which appellee changed his course southeast and across track 3, stopping on the track barely clearing the first rail of track 3, which put him facing the cab of the engine on track 3. Appellee remained on track 3 waiting for the engineer, who was apparently preparing to leave his engine to speak with appellee, but who consumed some three or four minutes in preparations. As the engineer was between his cab and tank so preparing to dismount, appellee saw in his eyes an expression that caused him “to wonder,” and upon looking around he discovered an approaching train right upon him, which struck him before he was able to get off the track. When appellee stepped upon track 3 and before he was struck, he looked in both directions three or four times while so standing, and saw no trains. The train which struck appellee was a regular passenger train. This train arrived practically on schedule on the day it struck appellee. Ap-pellee was familiar with the train schedule. The engine which appellee manipulated for appellant was engaged in interstate traffic. Appellee was employed from day to day. At the time he was injured his hours were from 7 p. m. to 7 a. m. On said day he left home at 6:30 p. m., as we have said, to mount his engine, and was on his way to commence his labor when struck in the manner detailed before reaching same.

Appellant urges by its first assignment of error that the court should have instructed a verdict for appellant for the reason that it appears from the evidence mat at the time appellee was injured the relation of master and servant did not exist-between the parties, and hence his cause of action was not controlled by any statute or rule of decision governing the rights of employer and employs. i No complaint is made that the charge of the court incorrectly applied any rule between master and servant, but that the testimony failed to establish such relation, and hence no liability was shown by the evidence. Thus, it will be seen, the single question here is: Was appellee in law, under the undisputed facts, an employe of appellant at the time of his injury? We have just detailed the facts. The general rule in relation to when the master is liable for injuries to the servant, and when such servant is or is not in the master’s employment, is stated with singular clearness and brevity in East Line & Red River R. Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 804, where it is said: “It is true that the employer is only liable as master to the servant when the latter is actually in his service, and that at times, during the period of an engagement, the employe may sustain to the employer no other relation than that of stranger. It does not follow from this, however, that the employe is to be deemed in the employer’s service only when he is actually engaged in labor. I-Ie is to be deemed in the master’s service whenever present to perform his duty under the contract creating the relation of master and servant and subject to orders, although at a given moment he may not be engaged in the actual performance of any labor.” In the case from which we have just quoted, it was held that an employe whose duties required him to be with a train, subject to call for duty, the engine of which exploded and injured him, was entitled to recover for such injuries, even though not in the performance of his duties at the time of such injury. Similar is the holding and the facts in St. Louis, S. & T. Ry. Co. v. Welsh, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839.

In Missouri, Kansas & Texas Ry. Co. of Texas v. Pennewell, 50 Tex. Civ. App. 541, 110 S. W. 758, this court ruled on facts similar to those in the Scott and Welsh Cases, supra. There the injured person had actually entered upon and begun his duties, remaining subject to call, but was not so actually engaged at the time of the injury. Likewise, on the point now under discussion was the holding of this court similar in the facts and the application of the rule in Missouri, Kansas & Texas Ry. Co. v. Balliet, 48 Tex. Civ. App. 641,107 S. W. 906. The cases cited are distinguishable from the case at bar in that in all the cited cases the employs was either actually engaged in the performance of his duty or present at the place of injury subject to instant call thereto. Here appellee was employed by the day, and while on his way to assume the duties of his employment from which it does not appear that he had been discharged, and while proceeding along the route appellant customarily permitted and allowed its employés to go, he was injured. The case nearest in point cited is Chicago, Rock Island & 'Texas Ry. Co. v. Oldridge, 33 Tex. Civ. App. 436, 76 S. W. 581. In that case Oldridge, preparatory to assuming his duties as a brakeman, and in order to be ready therefor, took his way to his train, arriving there before his train was “made up” and before his actual duties could begin. It was customary for brake,men to arrive at the location of their trains before they were made up. On reaching the place where his train was to be made up, Oldridge entered a detached caboose which was to be a part of Ms train to await the making up of the train, which was also the custom of such employés. While in the caboose Old-ridge was injured by the negligence of his fellow servants in attaching the caboose to the train. In determining whether or not Oldridge’s cause' of action was controlled by the law of master and servant, the court, in holding that it was, said: “The testimony of appellee tended to show that it was customary for freight brakemen, when called to go out with a train, to meet the conductor in the caboose, with the food and clothing required for the journey, while the caboose was yet in the yards, and before the. train had been made up. If it be true that appellant’s business, as well as that of other railway companies, had been habitually conducted in this manner, as the evidence tended to show, in the absence of a definite rule or positive requirement to the contrary, we could not say that appellee was a mere volunteer when he entered the caboose in this instance. His conduct should be interpreted in the light of the usage or custom pertaining to the service in which he was engaged, and the question was one for the jury.”

In the application of the general rule to specific cases, it was held in Boldt v. N. Y. C. R. Co., 18 N. Y. 432, that an employé on his way to begin his labors was in the performance thereof, since he was doing that which was essential to enabling Mm to discharge his duty; that is, going to the spot whore it was to be performed by the route and method customarily permitted and allowed by the master. To the same effect is Powers v. Calcasieu Sugar Co., 48 La. Ann. 483, 19 South. 455. A case much in point is Ewald v. C. & N. Ry. Co., 70 Wis. 420, 36 N. W. 112, 591,.5 Am. St. Rep. 178. The Wisconsin Supreme Court, in that case, held that the railroad company was not liable for damages because the same resulted from the negligence of Ewald’s fellow servants, but, on the issue as to whether he was in the employ of the railroad while making his way to its roundhouse to begin the duties thereof, said: “Here we have a private pathway over the grounds of the company, granted and allowed to the plaintiff and other em-ployés of the company who worked in the roundhouse, by usage, custom, and consent, for their ingress and egress to and from their work, kept open across the track of the road, and which had been worn and used by himself and others for long time prior to the injury, and that in order to reach the roundhouse it was necessary for Mm to go upon said pathway and to cross the track of the company at that place. It was the means, and only means, of entrance and exit to and from their work furmshed by the company, and the plaintiff and others had a right to its free and uninterrupted use as they always had; and it was because they were the employes of the company in the roundhouse that they had such right and privilege. It was an essential part and ingredient of the plaintiff’s contract of employment, and incidental to it, as much as any means and facilities for Ms labor in the roundhouse itself furnished by the company. The plaintiff, therefore, while enjoying such privilege and facility, or while passing along that pathway and between the opening of the cars, was an employé and servant of the company, as much as while actually laboring for the company in the roundhouse, and as much within his contract of employment.”

In consonance with the authorities cited, we conclude appellee was an employé of appellant at the time of the accident and that the trial court did not err in submitting the case to the jury.

It is contended, however, that when appel-lee halted in Ms journey to the roundhouse, stepped upon the track upon which he was injured, and engaged in conversation with Ms fellow servants, he thereby voluntarily suspended the relation of master and servant, and, his: injuries having been received during such suspension, appellant was not liable. Having determined that appellee was in the employ of appellant at the time of the injury, he then comes witMn that class of cases first cited in this opinion, as illustrated in Railway v. Scott, supra, which hold that though the employé may not be actually engaged in labor that fact does not destroy the relation of master and servant, and accordingly appellant owed appellee the duty of the master to the servant. Such acts by the servant show, at most, either contributory negligence on the part of the servant or a total lack of negligence on the part of the master. We think it may further be safely said that the evidence fails to show a material turning aside from Ms employment by appellee as contemplated by the adjudicated cases in this state, as where the servant voluntarily and without any necessity therefor turns aside from his duty for his own convenience and goes into a place not necessary or proper in going to or returning from service for the master. S. L. S. Ry. Co. v. Spivey, 97 Tex. 143, 76 S. W. 748; Lynch v. T. & P. Ry. Co., 133 S. W. 523. In the case at bar appel-lee was pursuing the very pathway over which he had from appellant permission to go in order to perform the essentials of his employment, and it seems to us that what he did was not only not in legal contemplation a turning aside from his employment, but that quite clearly he was entitled to that degree of care from appellant necessary to protect him from the danger incident to the route by which he was passing under the rule applicable between master and servant.

By its third assignment of error appellant asserts that the trial court should have instructed a verdict for appellant because appellee, by the evidence, was guilty of contributory negligence, and being so, and not being an employé of appellant, was not entitled to recover at all. Iíaving lield that appellee was an employs of appellant, there was no error in refusing said peremptory instruction. /

Anticipating such a ruling by this coutt, appellant goes further and asserts that ap-pellee was in the employ of a railway company engaged in interstate commerce, and that any claim for damages sustained by him is controlled by the provisions of the act of Congress concerning interstate commerce, known as the federal Employers’ Liability Act, Supp. U. S. Comp. St. 1911, p. 1322, and that the trial court did not properly apply said United States statute in his charge to the jury. We concede the proposition to be correct in asserting that appellee was engaged in interstate commerce, and hence our duty narrows to ascertaining whether the trial judge properly instructed the jury. The federal statute provides that, in all suits against common carriers for damages for injuries to employes, “the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employs.” The charge of the court on this issue was practically in the precise words of the federal act, and we conclude there was no error in that respect.

It is also contended under this assignment of error that the facts in this ease show appellee was guilty of “contributory negligence as a matter of law,” which under our state and the federal statutes is to assert that the record discloses “no testimony upon which the jury could reasonably have found a verdict” in favor of appellee, since contributory negligence is a question of fact for the determination of the jury. I. & G. N. Ry. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106.

Thus, under the contention here made, our sole function is to examine the evidence and determine therefrom if there was evidence adduced from which “the jury could reasonably have found a verdict.” We have done so, and in view of the evidence recited in this opinion, which we are not expected to set out at length, we conclude the court properly submitted the question of contributory negligence to the jury for their determination.

By its sixth assignment of error appellant asserts that the trial court erred in submitting to the jury as a ground of negligence whether appellant violated a rule promulgated by it inhibiting the running of trains at a greater speed than six miles per hour at the point of accident, and directing the jury to find for appellee if such rule was promulgated and violated, and they believed the operation of its trains at a speed in excess of six miles an hour was negligence and was the direct and proximate cause of appellee’s injuries. It was not disputed that appellant did promulgate in June, 1907, a rule directing that trains should not exceed a speed of six miles an hour within its yards or the city limits of Denison. Appellee testified, and it was not disputed, that said rule, since its promulgation, had by appellant's employSs been generally and habitually violated. The ordinances of the city of Denison make it unlawful to move an engine through its limits at a greater speed than 12 miles an hour. The claim is here made that the undisputed evidence conclusively shows the abrogation of said rule by reason of its nonenforcement by appellant and its general violation by its employés, including appellee. In this contention we agree. Hence the rule being abrogated or canceled by the parties, there was no such rule, and its submission as an independent ground of negligence, if violated by appellee, constituted in our opinion substantial error in view of the sharp conflict in the evidence on the other grounds of alleged negligence and the fact that the verdict was a general one. The ease at bar is controlled by the decision of this court in T. & P. Ry. Co. v. Leighty, 32 S. W. 799. In that case the railway company had promulgated a rule requiring all east and west bound trains to pass Choctaw siding under full control in order to avoid collisions with work trains expected to be found on the main line. In violation of the rule, Leighty ran his engine upon the siding at a speed of 20 or 30 miles an hour, striking the tender of an engine on the siding, resulting in Leighty’s death. This court found, under the evidence in that case, that the company’s employSs had ignored the rule from its promulgation to the time of Leighty’s death, a period of six months, and that the company had made no attempt to enforce same, and that hence there was no such rule. Tlie trial court, after charging the jury that the violation of the rule by the railway company’s employSs and the failure of the railway company to enforce same, refused a charge requested by the railway company directing the jury that Leighty’s failure to-conform to the rule in managing his engine-constituted negligence on his part, and would prevent a recovery. In commenting upon the refusal of the trial court to allow the requested charge, this court said: “Appellant, complains of the action of the court in refusing said requested charge and in charging the jury as above set out. The action of the court in these particulars was correct. The abrogation of a rule by the company may be presumed when it is frequently and openly violated for such a length of time as that the company could by the use of ordinary care, have ascertained its nonobservance. When a rule is not observed by employes for a long length of time, and no attempt is made by the company to enforce it, it' becomes of no force or effect, and the mere fact of the nonobservance thereof will not be considered contributory negligence in case of injury. Railway Co. v. Scott, 71 Tex. 703, 10 S. W. 298 [10 Am. St. Rep. 804]; Railway Co. v. McMahon, 6 Tex. Civ. App. 601, 26 S. W. 159; Rutledge v. Railway Co., 123 Mo. 121, 24 S. W. 1055 [27 S. W. 327]; Barry v. Railway Co., 98 Mo. 62, 11 S. W. 308 [14 Am. St. Rep. 610].” See, also, T. & N. O. R. Co. v. Conway, 44 Tex. Civ. App. 68, 98 S. W. 1070.

If the general violation of the master’s reasonable rules not in violation of any duty imposed upon him by law by the servant, with the acquiescence and knowledge of the master who makes no effort to enforce them, is an abrogation of such rule, and hence furnishes no basis for a charge of negligence against the servant, then it inevitably follows as a corollary that the violation by the servant of the master’s rules made for the benefit and protection of the servant in turn affords no basis for a charge of negligence against the master; particularly since it was not negligence per se to operate trains in appellant’s yards at a speed in excess of six miles an hour by reason of which it cannot be said that the rule applied in any way conflicts with the rule that habit or custom Nwill in no instance be permitted as an excuse for doing that which the law itself declares to be negligence. G., C. & S. F. Ry. Go. v. Evansieh, 61 Tex. 3.

All assignments of error not specifically discussed herein are overruled either because they do not, in our opinion, present any reversible error, or have been disposed of by our conclusions upon those we have discussed.

For the error mentioned, the judgment of the court below is reversed, and the cause is remanded for another trial.


text:
    WOLNITZEK et al. v. LEWIS et al.
    (Court of Civil Appeals of Texas. Austin.
    Oct. 29, 1913.
    On Motion for Rehearing, Dec. 10, 1913.
    Further Rehearing Denied Jan. 14, 1914.)
    1. Courts (§ 202) — Appeal Bond — Febson to Whom Payable.
    The appeal bond in probate proceedings is payable to the county judge, as such, and hence the fact that an appeal bond was made payable to the county judge of the county, who was disqualified to try a probate case, instead of to the special judge appointed in his place, was immaterial, since the special judge would be held to be the “county judge,” to whom it was payable.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 480-486; Dec. Dig. § 202.]
    On Motion for Rehearing.
    2. Appeal and Ebrok (§ 151) — Probate — Appeal — Right op Appeal.
    Where appellants did not sue to establish a will, but were made parties to a suit brought by appellee to probate a will when they alleged the making of a subsequent will to that sought to be probated, appellants’ failure to offer any evidence would not prevent them from appealing from the judgment of probate, under Rev. Civ. St. 1911, art. 3631, permitting any person aggrieved to appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 947-952; Dec. Dig. § 151.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Application by J. B. Lewis for the probate of a will, which Oscar Wolnitzek and others contested. From a judgment for proponent, contestants appeal.
    Reversed and remanded.
    Jno. P. Bell, of San Angelo, Johnson, Math-aei & Thompson, of Bellville, and Atkinson & Atkinson, of Houston, for appellants.

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

   Findings of Fact.

JENKINS, J.

Appellee J. B. Lewis, who was named as independent executor in the joint will of Peterus Paulus Wolnitzek and his wife, Franeiska Wolnitzek, executed April 6, 1903, made application to the county court of Austin county for the probate of same. As appears from the final pleadings of appellants, they contested the probate of said will on the ground that it had been revoked by a subsequent will, which they filed and asked that the *same be probated, and also upon the ground of undue influence in obtaining the' will of 1903.

The county judge of Austin county being disqualified, Hon. J. R. Heslip was appointed special judge to try the case, and judgment was entered as follows: “In the Matter of Paul and Franeiska Wolnitzek, Deceased. No. 1461. In the County Court of Austin County, Texas, February Term, A. D. 1912. This day came on to be heard the application of J. B. Lewis to probate the will of Peterus Paulus Wolnitzek and Franeiska Wolnitzek, of date April 6, 1903, who appeared by counsel, and there came also Oscar and Alma Wolnitzek in their own behalf, and in behalf of the minors, Alvin and Norma Wolnitzek, by their attorneys, who offered for probate, in opposition to the aforesaid will, another instrument bearing date July 7, 1910, as the last will of Paul Wolnitzek, deceased. The proponents of the first will herein mentioned offered their evidence after the pleadings were read, and the parties representing the other purported will declined to offer any testimony. It appeared to the court that the instrument dated April 6, 1903, was and is the last will of Paul and Franeiska Wolnit-zek, deceased, and at the time of executing same they were of sound and disposing mind and memory. It is ordered, adjudged, and decreed by the court that the said will of date April 6, 1903, be and the same is hereby admitted to probate and ordered placed on record, and the other instrument purporting to be the will of Paul Wolnitzek, dated July 7, 1910, be not admitted to probate. It is further ordered by the court that John B. Lewis be and he is hereby appointed as independent executor under said will; and that he be not required to give bond; and it is ordered that he proceed to take charge of said estate, and administer the same in accordance with the provisions of the will aforesaid. It is further ordered by the court that O. Sehauerhammer, O. P. Hellmuth, and L. A. Machemehl be and they are hereby appointed to appraise and file an inventory of all the property of Paul and Franciska Wolnitzek, deceased, or either of them. To all of the orders, aforesaid contestants, by their attorneys excepted, and gave notice of appeal, in open court, to the district court of Austin county, Tex.”

The judge trying the case did not fix the amount of the appeal bond, and, so far as the record shows, was not requested to do so.

Appellants, within the time allowed by law, filed an appeal bond, payable to the county judge in the sum of $500, conditioned as the law requires, which was approved by the county clerk.

In the district court appellee filed the following motion: “To the Hon. District Court of Austin County, Texas. Now comes J. B. Lewis, proponent of the joint will of Paul and Franciska Wolnitzek, deceased, and moves the court to dismiss' the appeal of Oscar Wolnitzek and Alma Wolnitzek, contestants herein, for the following reasons, to wit: First. Because said appeal bond is not sufficient in amount as required by law. Second. Because said appeal bond does not sufficiently describe the judgment rendered in the county court of Austin county, Tex., in the case of the estate of Paul Wolnitzek and Franciska Wolnitzek, deceased, to identify the same. Third: Because said appeal bond is not conditioned as required by law, and is not made payable to the proper officer, as required by law. Fourth. Because said appeal bond is wholly insufficient in that it fails to set out and describe properly the judgment and the disposition of the parties to this cause in the county court of Austin county, Tex. Wherefore proponent prays that the appeal herein be dismissed.”

The district court entered judgment “that said motion be in all things sustained, and that the appeal of said Oscar and Alma Wolnitzek (appellants herein) is ordered dismissed, and this cause stricken from the docket of this court.” .Thereupon the appellants filed a written motion, asking that they be allowed to amend their appeal bond by filing a new bond upon such terms as the court might prescribe, which motion was denied by the court. Appellants, having perfected their appeal to this court, assign error upon the action of the district court in dismissing their appeal on account of alleged defects in their appeal bond, and also in overruling their motion to amend said bond.

Opinion.

The trial court did not file any findings of fact or conclusions of law'. No brief has been filed by appellees, and we are somewhat at a loss to determine upon what grounds the action of the court was based. We gather from the argument and authorities cited in appellants’ brief, though such fact is not therein directly stated, that the court sustained the motion to quash the appeal bond upon the grounds: First, that the same was payable to the county judge of Austin county, who is shown to have been disqualified to try the case, when it should have been payable to the special county judge who tried the same; and, second, that the amount of' the appeal bond had not been fixed by the county judge who tried the cause.

1. As to the first objection to the appeal bond above set out, if the trial court so held, we think it was in error. The bond in such cases is payable to the county judge, as such, and he has no personal interest in it. It may be enforced by his successor. And, besides this, so far as this case is concerned, if necessary to the enforcement of the bond, it must be held that the special judge was the county judge.

2. The objection that the amount of the appeal bond was not fixed by the county judge trying the cause presents a more serious difficulty. The act of 1848 required that the amount of the appeal bond in such cases should be fixed by the Chief Justice. P. D. 1884. Our attention has not been called to any case arising under this statute in which the issue was presented that the amount of the bond had not been fixed by the Chief Justice. This provision with reference to fixing the amount of the bond was omitted from the act of August 9, 1876. See R. S. 1895, arts. 2255 and 2256. It was not stated in this act who, if any one, should fix the amount of the appeal bond. The act of 1909 (R. S. 1911, art. 3632) requires the party appealing to give bond “in any amount to be fixed by the county judge.” Section 2 of said act declares that “The uncertainty as to the amount of the bond that should be given in appeals in probate eases ⅜ * * creates an emergency,” etc. Acts of 1909, p. 2S3. In view of the previous legislation on this subject, we construe the act of 1909 to require that the amount of the bond must be fixed by the county judge, and as he did not do so, and was not requested to do so in this case, the trial court did not err in sustaining the motion to quash the appeal bond.

3. If the amount of the bond had been fixed by the county judge, and the bond had been deficient as to amount, or hád there been any other defect as to form or substance, appellants should have been permitted to cure such defect by giving a new bond; but as no amount had been fixed by the county judge, and as the district court to which the ease had been attempted to be appealed had no authority to fix such amount, it could not say that any new bond that might have been tendered cured this defect.

4. If we are wrong in our conclusions of law as above set forth, still, we' think the judgment of the trial court dismissing the appeal must be sustained for the reason that, under the pleadings in this case, the contestants did not call in question the execution of the will sought to be probated, but contested the same upon two affirmative propositions, viz.: Undue influence, and the execution of a subsequent will. As shown by the judgment above set out, “the proponents of the first will herein mentioned offered their evidence after the pleadings were read, and the parties representing the other purported will declined to offer any testimony.” This amounted to an abandonment of their contest, and there was nothing from which to appeal. Sorrell v. Stone, 127 S. W. SCO, and authorities there cited.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing.

1. Upon a former day of the present term of this court, we affirmed the judgment of the trial court dismissing appellants’ appeal for the reasons that the judge of the county court from which said appeal was taken did not fix the amount of the appeal bond, and that appellants, by not offering evidence as to an alleged will of Wolnitzek and wife upon the trial in the county court, had abandoned their cause of action. In the motion for rehearing counsel for appellants has filed an affidavit to the effect that the fact that the probate judge had not fixed the amount of the appeal bond came to his knowledge before the expiration of the time for filing a new bond herein, and that he spoke to counsel for appellee, who stated to him that this point would not be raised on appeal to the district court; that the motion, as originally made in the district court, did raise this point, but that upon attention of the counsel for appellee being called to the agreement, he admitted that he had made such agreement, and erased that ground of the motion. Attached to the motion for rehearing is a certified copy of the motion to dismiss appeal as originally filed, and the erasures therein, which shows that the first ground of said motion as filed read as follows : “Because said appeal bond is not sufficient in amount, and the amount named therein was not fixed by the county judge or of (by) any special county judge presiding in this case in the county court of Austin county, Tex., as required by law.” That the words following the words “in amount” and preceding the words “as required by law” are erased. In our original opinion herein we stated that it did not clearly appear upon what grounds the trial judge sustained the motion to quash the appeal bond, but we presumed that it was upon the ground that the probate judge had not fixed the amount of the same. It appears from the affidavit and the certified copy above referred to that this ground was especially waived, and did not therefore form the basis of the judgment of the trial court.

2. We have concluded that we were in error in holding, upon the authority of Sorrell v. Stone, 127 S. W. 300, that appellants’ appeal should have been dismissed by the district court, for the reason that they offered no evidence in the probate court. In the Sorrell Case, supra, appellant had filed a motion to set aside the probate of a will, thereby becoming the plaintiff in the cause, and we think it was correctly held in that case that the refusal to offer any testimony in support of plaintiff’s cause of action was- an abandonment of the suit, therefore no appeal would lie; but, in the instant case, appellants did not bring suit to establish a will, but were cited as proper parties in a suit brought by appellee to probate a will. It is true that appellants in their contest allege the making of a subsequent will, and offered no evidence to sustain'the same. The statute (article 3631, R. S. 1911) provides as follows : “Any person who may consider himself aggrieved by any decision, order, decree or judgment of the county court shall have the right to appeal therefrom to the district court -of the county, upon complying with the provisions of this chapter.” The provisions of the chapter referred to are that the party appealing shall execute a proper appeal bond, or malse affidavit of inability to do so. The decree of the county court in this case was that the will offered by appellee should be admitted to probate. Appellants considered., themselves aggrieved by this decree, as indicated by their notice of appeal, and executed an appeal bond, which we hold was in due form and in sufficient amount.

For the reasons above stated, the motion for rehearing is granted, and the judgment Of the trial court is reversed, and this cause is remanded for further proceedings in accordance with this opinion.

Motion granted. Reversed and remanded.


text:
    PEDEN IRON & STEEL CO. v. JAIMES.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1913.
    On Motion for Rehearing, Jan. 21, 1914.)
    1. Master and Servant (§§ 280, 281) — Injuries to Servant — Assumed Risk — Contributory Negligence — Findings—Evidence.
    In an action for injuries to a servant, evidence held to sustain a finding that.plaintiff was not guilty of contributory negligence and did not assume the risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 981-996; Dec. Dig. §§ 280, 281.]
    2. Master and Servant (§ 277) — Injuries to Servant — Relation—Evidence.
    In an' action for injuries to a servant, plaintiff’s evidence that he was employed by defendant, corroborated by that of another witness and Ms brother, was sufficient to establish the relation of master and servant between plaintiff and defendant.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. § 953; Dec. Dig. § 277.]
    3. Master and Servant (§ 265) — Injuries to Servant — Contributory Negligence-Burden of Proof.
    In an action for injuries to a servant, the burden of proving plaintiff’s contributory negligence is on the defendant.
    [Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    4. Appeal and Error (§ 1170) — Review — Instructions — Prejudice.
    In an action for injuries to a servant, the fact that the court used the words “established to your satisfaction” in a charge was not prejudicial to defendant, within Supreme Court Rule 62a (149 S. W. x), providing that the judgment shall not be reversed on appeal for error in the course of the' trial unless the appellate court is of the opinion that the error amounted to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 1170.]
    5. Trial (§ 260) — Instructions — Request to Charge — Instructions Given.
    Requests to charge substantially covered by instructions given may be properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.] '
    Appeal from District Court, Bexar County; R. H. Ward, Judge.
    Action by E. M. Jaimes against the Peden Iron & Steel Company. Judgment for plaintiff, and defendant appeals. Affirmed. Motion for rehearing denied.
    Emmett B. Cocke and Templeton, Brooks, Napier & Ogden, all of San Antonio, for appellant. C. C. Harris and Hertzberg, Barrett & Kercheville, all of San Antonio, for appellee.

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

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

   FLY, C. J.

This is an action for damages alleged to have arisen from personal injuries inflicted upon appellee through the negligence of appellant. It was alleged that ap-pellee was in the employment of appellant and engaged “in loading and unloading and handling of light casing to and from wagons and pipé racks” ; that while engaged in loading 10-inch pipe, from 17 to 21 feet in length and weighing 45 pounds to the foot, from a pipe rack to a wagon, standing alongside the pipe rack, appellee being in the wagon, a pipe, too heavy for appellee and the two men assisting him to hold “crashed down with a great weight into the wagon, and crushed the leg and foot of plaintiff by the terrific impact,” and permanently injured appellee by ■crushing the bones in his ankle, foot, and leg, and wrenching and bruising the muscles and tendons. Appellant pleaded assumed risk and contributory negligence. A trial by jury resulted in a verdict and judgment for $3,-500.

The evidence shows that appellee was an employe of appellant, and was engaged in loading pipe into a wagon, and was in the wagon by the orders of his foreman; that the pipe was so heavy that appellee and the two men working with him were unable to handle it, and it slipped from their hands and crushed the ankle and foot of appellee, permanently injuring him. The wagon was driven alongside the pipe racks by order of the foreman, instead of being backed to them, which some of the testimony tended to show as the proper position in which the wagon should have been placed. The wagon was being loaded under the supervision and orders of the foreman. The pipe weighed about 640 pounds. Appellee was not experienced in loading pipe of the kind described. He did not know its weight and did not realize the danger of obeying the order to get in the wagon.

The issues of assumed risk and contributory negligence were fully submitted to the jury, and it was found that appellee neither assumed the risk nor contributed by Ms negligence to his injury. The evidence was sufficient to sustain the finding. The first, second, tMrd, and fourth assignments of error are therefore overruled.

The evidence of appellee was to the effect that he was an employé of appellant, and he was corroborated by Fassnidge and his brother. The evidence was sufficient to establish the relation of master and servant between appellant and appellee.

The fifth and sixth assignments of error are without merit. The burden of proof was upon appellant to establish contributory negligence. The evidence of appellee did not tend to show contributory negligence. He was an inexperienced man, and was acting under the orders and immediate supervision of his foreman.

Whatever may have been the exceedingly technical position of the Supreme Court in the past, as in the case of Willis v. Chowning, 90 Tex. 617, 40 S. W. 395, 59 Am. St. Rep. 842, in regard to charges, and in regard to so-called leading questions, as in Railway v. Dalwigh, 92 Tex. 655, 51 S. W. 500, it is to be hoped that the more liberal rule will be enforced and no judgment reversed for any error unless it is apparent that injury has resulted from it. Using the words, “establish to your satisfaction,” in the charge, we cannot conceive could have influenced the verdict. “No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” Rule 62a (149 S. W. x). That rule properly and wisely enforced, as it should be, will lift untold burdens off litigants and courts and have a tendency to create a higher respect for the opinions of courts, than reversals on hairsplitting technicalities, that could have no effect whatever on the trial of the cause. The rule as formulated in 62a should have always prevailed in Texas, without the necessity of placing it in a book of rules, because it is founded on common sense and reason.

In other portions of the charge the jury was instructed that if the evidence showed contributory negligence appellee could not recover, and no doubt the jury understood that the issue of contributory negligence should be proved, as any other fact, by a preponderance of the evidence. Appellants asked charges, which were given, which presented every phase of contributory negligence and assumed risk raised by the evidence.

The substance of special charge 10 was contained in other special charges given by the court, and it was not error to refuse it.

Being of the opinion that there is no error presented in the record that requires a reversal, the judgment is affirmed.

On Motion for Rehearing.

Bule 62a was adopted by the Supreme Court on October SO, 1912, and became effective on November 15, 1912, and no opinion of any court of Texas has come to our notice which reverses a judgment for an error in the charge similar to one now before this court. 149 S. W. x. However, it is stated in the motion for rehearing that the judgment in the case of Brewer v. Doose, 146 S. W. 323, was reversed because of a similar charge, and that the decision was rendered after rule 62a was in effect That opinion was rendered on February 14, 1912, nine months before the rule became effective. A different order of things has happily been inaugurated in Texas, if the appellate courts are permitted by the authors of the rules to carry them into effective execution.

Rule 62a clothes the Courts of Civil Appeals with the authoi'ity to determine whether an error of law amounts “to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case.” The charge in this case was not given “scant consideration,” as stated by appellant, but was thoroughly considered in the light of the circumstances in this case. The facts showed that appellee was an inexperienced boy and was working under the immediate supervision and control of Cain, appellant’s superintendent, who knew how the pipe should be loaded, and who should have warned appellee of the danger of getting in the wagon. These facts were un-contradicted and tended to show that appel-lee was not guilty of contributory negligence in getting in the wagon, even though not ordered to do so by Cain. There was no testimony that indicated that appellee knew of the danger of his position. Cain knew and had been told just before the accident that he was not loading the pipe in the proper manner. There was no evidence of contributory negligence, unless getting in the wagon was contributory negligence. That act was either commanded by the superintendent, or he permitted an inexperienced boy to do a thing -which he knew was dangerous. In either event appellee was not guilty of contributory negligence. ' The wagon was being loaded under the personal supervision of the superintendent and in the manner directed by him. How could any kind of erroneous charge on the amount of proof required have injured appellant?

The evidence showed that appellee was ignorant of the danger of the position occupied by him in the wagon, and that the superintendent did know it, and yet he did not warn him. That duty devolved upon appellant, and the failure to instruct the servant as to the danger removed the question of contributory negligence from the ease. Labatt, Master & Servant, § 235. The charge on contributory negligence, standing alone, could not have injured appellant, and, when read in connection with other parts of the court’s charge and the special charges asked by appellant, it is apparent that no harm was done by it.

The motion for rehearing is overruled.