source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    HART et ux. v. HULSEY et al.
    (No. 236.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 7, 1917.)
    1. Appeal and Error <&wkey;846(5) — Review— Absence of Findings of Fact and Conclusions of Law.
    Where the trial court did not file findings of fact and conclusions of law, the case is before the Court of Civil Appeals to determine whether there was evidence on trial sufficient to support the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3351-3355.]
    2. Homestead <@=3181(1) — Abandonment — Burden of Proof.
    In suit to cancel a deed of trust and the trustee’s deed executed in pursuance thereof, plaintiffs claiming that the deed of trust was on their homestead, and defendant setting up abandonment thereof, the burden of proof on the issue of abandonment rested on defendant.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. | 352.]
    3. Appeal and Error <&wkey;1010(l) — Review-Finding of Fact.
    The Court of Civil Appeals will not disturb the finding and judgment of the trial court on a finding of fact if there is any evidence in the record to support it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981, 4024.]
    4. Homestead <@=181(3) — Abandonment — Sufficiency of Evidence.
    In suit to cancel a deed of trust and the trustee’s deed executed pursuant thereto, evidence held to warrant findings that the premises had been abandoned as a homestead by plaintiffs, and that they were not their homestead on execution of the deed of trust, so that the latter was a valid lien.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 353.]
    5. Homestead <&wkey;154 — Abandonment by Husband.
    A husband cannot, under any and all eases, divest property of the homestead character, which has once attached, so as to defeat the wife’s right in the same as a homestead, by merely declaring his intention of abandoning the property as a homestead.
    [Ed. Note — For other cases, see Homestead, Cent. Dig. § 307.]
    6. Homestead <&wkey;163 — Abandonment by Husband.
    Where a husband, acting in good faith, without intention to defraud his wife, determines to abandon property once characterized as their homestead, and to remove without intention of again occupying the property as a homestead, and does so remove with such intention, and is followed by his wife, and they establish their residence elsewhere, the intention and act of the husband, he being the head of the family, exercised in good faith towards the wife, and for what he believed to be the best interests of the family, must control and be given effect, and the property so abandoned and removed from loses its homestead character, and is, in contemplation of law, abandoned as a homestead by both the spouses, since the husband is recognized by law as the head of the family, and clothed with the right to determine ordinarily its domicile, either in acquiring property for a homestead or in abandoning the same.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 320-326.]
    7. Appeal and Error <@=1008(2) — Review— Findings of Court.
    Findings of fact by the trial judge sitting without a jury are entitled to at least as much weight as the verdict of a jury on the same facts, both touching the credibility of witnesses and the weight to be given testimony.
    [E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3957, 3964.]
    8. Homestead <@=115(1) — Mortgage Lien.
    Where claimants of homestead rights were occupying or using the premises as a homestead at the very time of the attempted execution of a lien thereon by executing a deed of trust, the attempted lien was absolutely void.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 183, 184.]
    Error to District Court, Harris County; Henry J. Dannenbaum, Judge.
    Suit by Frank Hart and wife against J. B. Hulsey and others. To review a judgment for defendants, plaintiffs bring error.
    Affirmed.
    Ward & Ward, of Houston, for plaintiffs in error. Howard & Kendall, of Houston, for defendants in error.
   HIGHTOWER, C. J.

This suit was brought by plaintiffs in error, Frank Hart and his wife, Annie Hart, for the purpose of canceling a certain deed of trust, and the trustee’s deed executed in pursuance thereof, and was against J. B. Hulsey as beneficiary in said deed of trust, and who was also purchaser in the trustee’s sale, and against R. A. Davis, as trustee named in said deed of trust, for the purpose of removing cloud from the title cast by said deed of trust and the trustee’s deed, plaintiffs alleging as grounds therefor that the property covered by said deed of trust and trustee’s deed was, at the time of the execution of said deed of trust, the homestead of plaintiffs. Defendant J. B. Hulsey, in addition to his answer of general demurrer and general denial, pleaded abandonment of the property in controversy as a homestead by plaintiffs in error, and by way of cross-action, in the event the sale made by the trustee was set aside by the court, set up his debt against plaintiffs in error, and the deed of trust executed to secure the same, and prayed for foreclosure, and also set up the fact that a part of the money borrowed by plaintiffs in error and secured by the deed of trust was, at the request of plaintiffs in error, paid by defendant in error in the discharge of an existing valid lien against said premises, and thereupon prayed to be subrogated to the rights of the holder of said lien. Upon trial before the court without a jury, the court found against plaintiffs in error on the issue of homestead, and found for plaintiffs in error on the invalidity of the trustee’s sale, and awarded defendant in error Hulsey, judgment for the amount of his debt against plaintiffs in error, interest and attorney’s fees, as prayed, and foreclosure of the deed of trust lien on the property claimed by plaintiffs in error to be their homestead. To this judgment of the trial court, plaintiffs in error Hart and wife duly excepted, and have brought the case here by writ of error for revision.

We find in the brief of plaintiffs in error seven assignments of error, each of which challenges the correctness of the trial court’s judgment in holding that the deed of trust in question constituted a valid lien upon the property involved, and in foreclosing the same, on the ground that the property covered by said deed of trust was the homestead of plaintiffs in error at the time of the execution of said deed of trust, and that therefore, under the Constitution and laws of this state, said deed of trust was void, and constituted no lien on said property. We say that all seven of the assignments of error, in different form, relate to this one question, and therefore we will dispose' of them all together.

The deed of trust in question was duly executed and acknowledged by plaintiffs in error on the 25th day of May, 1912, and covers lot No. 10 in block No. 7 of the Hard-castle addition to the city of Houston, Tex., and was executed to secure the payment of a promissory note executed by plaintiffs in error to J. B. Hulsey, defendant in error, for the principal sum of $1,100, interest, and attorney’s fees.

We gather from the record before us that the plaintiffs in error acquired the property covered by the deed of trust in the year 1901, or 1902, for the purposes of a homestead, and that soon after its acquisition they moved upon the same, and made the same their homestead in fact, and continued to occupy the same as their homestead 'until some time in July, 1909, at which date plaintiffs in error removed from said premises, and have never at any time since that date occupied, or pretended to occupy, said premises as their homestead until about August, 1916, some 4 years after the execution of said deed of trust, and approximately 7 years after they had moved from said premises, as before stated.

The trial judge did not file findings of fact and conclusions of law, and therefore the case is before this court to determine whether or not there' was evidence adduced upon the trial sufficient to support the judgment of the trial court, and, if so, it is the duty of this court to affirm such judgment.

It is conceded that the property covered by this deed of trust was at one time stamped with the homestead character, and yvas actually used and occupied by plaintiffs in error as their homestead, and the controlling question to be here determined is whether or not there was any evidence before the trial court which, if believed by him, was .sufficient to warrant a finding by him that the plaintiffs in error had aban-, doned the premises in controversy as a homestead prior to the execution of the deed of trust in question, with the intention on their part not to use or occupy the same again as their homestead, and we .concede that the burden of proof upon this issue rested upon defendant in error, and, in view of the fact -that the trial court gave judgment in favor of defendant in error, establishing and foreclosing the deed of trust as a lien upon the premises in question, he, presumably, found and held that defendant in error had discharged that burden, and, following the rule in this state, established by an unbroken line of decisions, this court will' not disturb the finding and judgment of the trial court on this finding of fact, if there is any evidence found in the record to support it.

The property upon which the deed of trust was' executed was, at the date thereof, and had been for approximately 3 years prior thereto, located in what' is known as the “Reservation” in the city of Houston. This Reservation was established about July, 1909, and was a place set aside for the prostitutes of the city of Houston. In July, 1909, after this Reservation was established, plaintiffs in error moved from said premises, and, according to statements and declarations shown to have been made by the hus'band, Frank Hart, such removal was made with the intention of abandoning said premises as a home. It is undisputed by the record that up to the time of the- execution of the deed of trust in question, almost 3 years subsequent to the date that plaintiffs in error removed from the premises in question, they had not, in any way, used or occupied the premises as a homestead, and at the execution of the deed of trust, the premises in question were occupied by renters or tenants of plaintiffs in error, and were in no mahner, nor to any extent, used for the purposes of a homestead by plaintiffs in error. At the time plaintiffs in error left the premises in question, they had three children, two of whom were girls, aged 16 and 17 years, respectively, and a boy 15 years of age. It was proven on the trial, by defendant in error, that Frank Hart, the husband, on several occasions stated, prior to the execution of the deed of trust in question, that the premises in question had been abandoned as a homestead by plaintiffs in error, for the reason that his wife, Annie Hart, would not live there, on account of the fact that the Reservation of the city of Houston was established there, and that plaintiffs in error were opposed to living with their children in such a place, and, further, that he (Frank Hart), had made, or was making arrangements to purchase other property for the purposes of a homestead, and, in fact, that he had negotiated a purchase of other property for such purposes. Prank Hart, however, denied having made any such declarations to any one, and claimed that he had at all times intended to return to the property in question, and occupy it as a homestead, and that his only reason in removing therefrom, in the first place, was that he wanted to get in such part of the city as would afford his wife convenient access to such employment as her physical condition would permit of, and that he intended, ultimately, to return to the premises, and occupy same as a homestead. Annie Hart, the wife, testified, in substance, that she, too, had no intention of abandoning the property in controversy as a homestead at the time she and her husband removed therefrom, but that such removal was only temporary, and for the purpose of enabling her to secure employment more easily accessible to her, and that, ultimately, she intended to return to the premises in question as their homestead.

It is undisputed, also, that after plaintiffs in error removed from the premises in question, Prank 1-Iart, the husband, did negotiate with the William A. Wilson Company for the purchase of a lot, which was some time in September, 1911, but for some reason he never finally acquired the property negotiated for, but instead the same was conveyed by the William A. Wilson Company to one Chambers, with whom the husband, Prank Hart, had some dealings, and to whom- he became indebted, it seems, in the sum of approximately $400.

We think that the evidence before the trial court, to the effect that the husband, Prank Hart, expressly declared that the premises in question had been abandoned by plaintiffs in error as a homestead, coupled with the fact that the same was not occupied or used as a homestead for approximately three years after removal therefrom, when considered in connection with the further fact that Prank Ilart, after removal, and before the execution of the deed of trust, was negotiating for other premises for the purposes of a home, as declared by him, and also, when considered in connection with the further fact that the premises in question were never occupied, or pretended to be occupied or used in any manner, as a homestead by plaintiffs in error until after the filing of this suit, and also, when considered in connection with the reason stated by Prank Hart for removing from the premises in controversy, that is to say, that plaintiffs in error would not live on the property because of the fact that the Reservation had been established there, constituted a sufficient basis for the findings of the trial court that the premises in question had been abandoned as a homestead by plaintiffs in error, and that the same was not their homestead at the date of the execution of the deed of trust in question, and that therefore such deed of trust constituted a valid lien upon said premises. It is true that the wife, Annie Hart, was not shown to have made any declaration to defendant in error, or his agent, acting for him, relative to the lien in question, jas to what her intentions were with reference to the premises in question, and she, therefore, claims that, even if it be true that her husband declared his intention to abandon the promises in question as their homestead, such declaration and intention on his part could” not affect her interest in the premises in question - as a homestead, and could not have the effect to deny her the right to claim the property as a homestead, and thereby defeat the alleged lien.

In answer to his proposition, it may be conceded that the husband cannot, under any and all cases, divest property of the homestead character, which has once attached, so as to defeat the right of the wife in the same as a homestead, by merely declaring his intention of abandoning such property as a homestead of the family, and this proposition of law is too well settled in this state to require citation of authority, but it is also true that where the husband, acting in good faith, and with no intention to defraud the wife, determines to abandon property once characterized as a homestead, and to remove therefrom, with no intention of again occupying the same as a homestead, and does so remove with such intention, and is followed by the wife, and their residence is established elsewhere, then, in such case, the intention and act of the husband, he being the head of the family, exercised in good faith towards the wife, and for what he believes to be for the best interests of the family, and in the absence of any fraud whatsoever perpetrated upon the wife, must control and be given effect, and the property so abandoned and removed from loses its homestead character, and is, in contemplation of law, abandoned as a homestead by both the spouses. It is the intention and act of the husband, when exercised in good faith towards the wife, that control in such cases, for the reason that the husband is recognized by law as the head of the family, and is clothed with the right to determine, ordinarily, the domicile of the family, either in acquiring property for the purposes of a homestead, or in abandoning same, after being once acquired, provided, always, that the intention and judgment of the head of the family be exercised in good faith towards the wife. There is nothing in this record that indicates that Frank Hart, the husband, if he, in. fact, had the intention of abandoning the property in question as a homestead, as the trial court found he did, which would indicate .any bad faith towards or intention to defraud, in the least, his wife, and we cannot say that the' evidence before the trial judge, taken as a whole, some of which we have not mentioned, was not sufficient to warrant the judgment of the trial court in this case.

We understand that findings of fact by the trial judge, sitting without a jury, are entitled to at least as much weight as would he the verdict of a jury on the same facts, both touching the credibility of the witnesses and the weight to be given to the testimony, and before this court would feel justified, or would be authorized, under the rule in this state, to disturb the judgment of the trial court in this case, we would have to hold, in effect, that there was no evidence before the trial court, upon which to base a finding, which was to the effect that the property in controversy had been abandoned as a homestead by plaintiffs in error, prior to the execution of the deed of trust in question, and that the same was not stamped with the homestead character at the date of the execution of such deed of trust. ■ The rule that appellate courts in this state will not disturb a finding of the trial court on a question of fact, unless it can be said by the appellate court that there is ho evidence in the record, upon which to base such findings on questions of fact, is so well established that the citation of authorities is entirely unnecessary.

On the issue of abandonment of property in controversy as a homestead by plaintiffs in error, the following authorities, among many others in this state unnecessary to mention, are referred to: Parker v. Schrimsher, 172 S. W. 165; Morris v. Simmons, 138 S. W. 802; Derry v. Harty, 187 S. W. 343; White v. Cowles, 155 S. W. 982.

Plaintiffs in error have cited quite a number of cases in support of their assignments that the trial court was in error in holding the deed of trust in question a valid lien on the premises in question, with the opinions in most of which we are familiar, and it will be found that many of these cases deal with the question of estoppel on the part of the claimant of the homestead to deny the validity of the lien attempted to be executed, and as to that line of cases we might say that they have no application here, because the issue of estoppel is not in tills case,.and, further, we might say that some of these cited cases refer to controversies where the claimants of the homestead rights were occupying or using the premises in controversy as a homestead at the very time of the attempted execution of the lien, and, of course, under such circumstances, any such attempted lien was absolutely void, and others of these cited cases have reference to instances where the jury or trial judge found in favor of the claim of homestead as a question of fact. We think that none of them can control in this case.

Prom what we have said, it follows that in our opinion none of the assignments of error should be sustained, and they are therefore overruled, and the judgment of the trial court is therefore, in all things, affirmed.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, O. J.

text:
    WEST LUMBER CO. v. DAVIDSON.
    (No. 7530.)
    (Court of Civil Appeals of Texas. Galveston.
    June 14, 1917.
    Rehearing Denied June 21, 1917.)
    Quieting Title &wkey;7(l) — Cloud on Title-Stock — Negotiability.
    A bill will not lie to remove from title to lands of plaintiff cloud consisting of assertion by defendant of ownership in land by virtue of his being pledgee of stock in corporation which formerly owned land and to enjoin sale of said stock, since stock is not negotiable, and therefore plaintiff’s right to hold land free of lion asserted by defendant cannot be impaired or endangered by sale of stock.
    [Ed. Note. — For other cases, see Quieting Title, Cent. Dig. §§ 14, 15, 17.]
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Action by the West Lumber • Company against Lynch Davidson. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Huggins & Kayser, of Houston, for appellant. Campbell, Myer, Myer & Freeman, of Houston, for appellee.
   PLEASANTS, O. J.

This appeal is from an order of the district court for the Sixty-First district denying an application of appellant for a temporary injunction. The following statement of the allegation of the petition upon which the injunction was sought is copied from appellant’s brief and is sufficient for the purposes of this opinion:

“This suit was instituted by appellant, West Lumber Company, a corporation organized and existing under the laws of the state of Texas, against the appellee, Lynch Davidson, to remove cloud from title to certain lands described in plaintiff’s petition. So far as this appeal is concerned, the particular cloud sought to be removed was the assertion by the defendant of some character of ownership in the land by virtue of his being the owner and holder or pledgee of certain stock in the W. W. West Company, which company had previously owned the land. Appellee advertised this stock for sale, claiming to hold it as pledgee for certain indebtedness in the sum of approximately $50,000; the sale being set for Monday, June the 11th, at 10 o’clock. On receiving notice of the advertisement of this sale, appellant filed an amended petition, which petition is set out in the transcript, asking' for a temporary injunction against the sale of said stock on said date. This injunction was denied by the court and an appeal immediately taken, and, upon motion and informal hearing, an , understanding was reached with the attorneys for appellee that the sale was not to take place until this court could pass upon the appeal.
“Statement of the Case.
“Appellant, West Lumber Company, alleged that it is the owner of certain lands described in paragraph 1 of plaintiff’s petition. As shown by the petition, the following are the facts alleged as ground for the injunction herein:
“On June 9, 1908, the West Davidson Lumber Company was the owner of a certain sawmill and certain pine timber and timber lands situated near Lovelady. The capital stock of this company was owned principally by W. W. West and the defendant, Lynch Davidson. W. W. West decided to purchase Lynch Davidson’s interest in this sawmill. To this end he organized a corporation known as the W. W. West Company, and on June 9, 1908, purchased from the West Davidson Lumber Company all • of its assets for the sum of $107,000, evidenced by promissory notes, of that date, of the W. W. West Company, and gave as security therefor a deed of trust of the date above mentioned upon all of this property, and in addition thereto pledged with the West Davidson Lumber Company to secure these notes 992 shares of the capital stock of the W. W. West Company, which was all of the capital stock of the company, except eight shares. (Tr. p. 8, par. 2.)
“After the purchase of this property in the manner above described the W. W. West Company took charge of the sawmill and all the properties and undertook to operate it, but instead of making a profit the operations were carried on at a loss, and during these operations it incurred an indebtedness of $50,000 to the Orange Lumber Company, a corporation of which J. M. West was the principal stockhold-jr, and W. W. West Company became unable to meet its obligations to its creditors in general, including the West Davidson Lumber Company and the Orange Lumber Company. (Tr. p. 4, par. 3).
“On March 11, 1910, J. M. West and the defendant, Lynch Davidson, entered into a contract in writing, by the terms of which it was agreed that J. M. West should take charge of all of the assets of W. W. West Company and operate the same to the best of his ability, with the end in view and to the purpose of paying first $57,000 of the indebtedness of W. W. West Company to the West Davidson Lumber Company, said indebtedness then being held by the Continental Lumber & Tie Company, second, to pay all of the other indebtedness of the W. W. West Company, except the balance due the Continental Lumber, & Tie Company of approximately $57,000, and providing that the balance, if any there should bo remaining, after the payment of the first $57,000 due Continental Lumber & Tie Company and all other indebtedness of W. W. West Company, should be divided equally one-half to each between J. M. West and defendant, Lynch Davidson, the contract having provided that J. M. West would bring about the cancellation of tho $50,000 indebtedness held by the Orange Lumber Company, and that Lynch Davidson would bring about the cancellation of the balance of the indebtedness owed to the Continental Lumber & Tie Company by W. W. West Company of approximately $50,000 or $57,000. It is alleged that the gist of the entire agreement between the defendant and J. M. West was.to the effect that J. M. West should take charge of the properties of the W. W. West Company and realize therefrom a sufficient amount first to pay $57,-000 of the $107,000 indebtedness due the Continental Lumber & Tie Company, that being the same indebtedness previously held by the West Davidson Lumber Company, and realize therefrom, if possible, a sufficient amount to pay the balance of the debts bf the W. W. West Company, except the balance of approximately $50,-000 due the Continental Lumber & Tie Company and the $50,000 due the Orange Lumber Company, and the remainder of the assets, if any, to then belong to plaintiff and defendant in the pi'oportion of half each. (Tr. pp. 4 and 5, par. 5.)
“In pursuance of this contract, J. M. West took over all of the properties of the W. W. West Company with the acquiescence of all of the stockholders and officers and directors of said company, and began the operation thereof, and gave, his personal time and attention thereto without making any charge for the services, and advanced large sums of money to said company so that it might continue its operations^ and caused the Orange Lumber Company to advance large sums therefor, and in fact proceeded with the best of his ability to operate the properties and realize therefrom the best possible returns, and did operate them until he had cut substantially all of the timber owned by the W. W. West Company and sold it on the market to the best possible advantage and then made diligent efforts to secure other timber to continue the operations; but, because of the fact that none was available at a price at which it could be used at a profit, the operation of the mill was of necessity discontinued, and, in spite of his careful and economical management, the operation during the time.it was operated was at a heavy loss, but nevertheless he paid the $57,000 due the Continental Lumber & Tie Company as it became due in accordance with the agreement mentioned above. That upon the payment of the $57,000, one-half of the stock of the W. W. West Company which was attached to the notes was delivered to him, so that after the $57,000 was paid the defendant, Lynch Davidson, held one-half of the stock of W. W. West Company, which was attached to the balance of the notes which he held aggregating $50,000 or $57,000, but which he agreed to cancel in the contract as mentioned above. (Tr. pp. 5 and 6, par. 6.)
“After the sawmill had been operated until substantially all of the timber had been cut that was available, it was necessary then to dispose of the assets, lands, etc., of the W. W. West Company to the best possible advantage. To this end, J. M. West sold the lands belonging to the company to J. D. Ereeman on January 20, 1911, for the sum of $17,094.12, $1.-000 of which was paid cash and immediately applied to the debts of W. W. West Company which existed at that date, and the balance of the purchase price of the land which was covered by notes was also applied to other indebtedness of the W. W. West Company which existed at that time. (Tr. p. 6, par. 7.) It not being feasible or practicable to continue operations, the corporation was dissolved.
“The Freeman notes were transferred to West Lumber Company, the appellant herein, in part satisfaction for advances made to pay off certain indebtedness of the W. W. West Company that existed on March 11, 1910. J. D. Freeman defaulted in the payment of these notes, and W. W. West Company, being unable to collect them, took a conveyance of the land from Freeman to C. B. Granbury, trustee, for appellant, West Lumber Company, in satisfaction of said notes. Even after the conveyance of the land to Granbury as trustee, the appellant, West Lumber Company, advanced and paid off for the account of W. W. West Company more than $17,000 of the indebtedness of said W. W. West Company. (Tr. p. 7, pars. 8 and 9.)
“It is further alleged: That, by virtue of the facts recited above, all of the notes which were not paid the West Davidson Lumber Company, and which aggregated approximately $50,000 or $57,000, have become fully canceled and discharged. Further, that all of the acts of J. M. West in the premises were well known to the defendant; that he was constantly kept advised of all of the operations, and that he acquiesced therein and ratified and approved the acts of J. M. West in the premises. And, further, that J. M. West in undertaking to carry out the terms of the contract of date March. 11, 1910, expended and lost of his own money and that of his companies more than $100,000, all of which was known to the defendant and acquiesced in by him at the time, and that by reason of all of these facts the defendant is es-topped now to assert any interest in the lands in question. (Tr. pp. 7 and 8, pars. 11 and 12.)
“It is further alleged as followg: That the defendant is now taking steps to assert title and interest in said lands and premises as the owner and holder of an -undivided interest therein resulting from the proposed ownership by him of 552 shares of the capital stock of said W. W. West Company, the same being the remaining half of said stock deposited as collateral of said obligations of W. W. West Company to said West Davidson Lumber Company, and which are attached to said $57,000 worth of said notes remaining in his possession, and to that end has given notice that on, to wit, the 11th day of June, 1917, at his office in the Carter building, he will proceed to sell said stock as the collateral holder thereof, or the defendant is undertaking through such sale to place the ownership of said stock in the hands of a purchaser in the expectation that such purchaser would not be at the disadvantage in owning same in which defendant finds himself, and could thereby assert title to said land, which the defendant is now estopped by virtue of the premises from asserting, and á further cloud is sought to be cast upon the title of plaintiff in said premises, by said action of defendant in conducting said sale and by the results of such sale and the consequences that will follow therefrom if same is permitted to be conducted and consummated. (Tr. p. 9, par. 15.)
“It is further alleged as follows: That defendant has no right, title, interest, or equity in said lands or premises of any sort or kind whatever, and his said assertions and claims of titles and equities are wrongful and malicious and done in total and wanton disregard of the rights of plaintiff and with the willful and malicious intent to thereby injure plaintiff. (Tr. p. 10, par. 17.)
“The prayer was, among other things, for an injunction to restrain defendant from selling or undertaking to sell said stock of the W. W. West Company. (Tr. p. 11.)”

No- answer was filed in the court below by appellee, but appellee’s attorneys were present and participated in the hearing of the application.

The contract between J. M. West and ap-pellee referred to in petition was not attached to the petition, but was before the court on the hearing, and by agreement of parties is considered by this court a part of the petition.

We are of opinion that the trial court did not err in refusing to grant the temporary injunction. The contract between J. M. West and appellee expressly provides that, after the payment by West of the indebtedness of the company to the extent mentioned in the plaintiff’s petition above set out, he would -acquire and transfer and deliver to appellee one-half of the capital stock of the company, and when said stock was so transferred to appellee he would surrender and cancel the balance of the unpaid notes of the company held by him and the Continental Lumber & Tie Company, and release the lien given to secure the payment thereof upon the lands now claimed by appellant.

It appears from the allegation of the petition that J. M. West has not transferred and delivered any of the stock to appellee, and appellee only holds the same as collateral security for the notes. If the -allegations of the petition are true, and being undenied they are presumed to be true, all of the property and assets of every kind owned by the W. W. West Company have been disposed of, and the 'proceeds thereof applied in accordance with the provisions of the contract in the payment of the debts of the corporation, and the corporation has been dissolved.

If these facts are true, the acquisition of one-half of the stock by J. M. West and its transfer and delivery to appellee would have been a vain and useless performance, and the failure of appellant to comply with that provision of the contract would not affect his right to have the property held by him by purchase from the W. W. West Company free of any lien for the payment of the balance due appellant and the Continental Lumber & Tie Company. This right of appellant cannot 'be impaired or endangered by the sale of the stock held by appellee as collateral. We do not think that a purchaser of the stock would be in any better position to set up irregularities in the disposition of the property and have the sale thereof set aside because of such irregularities than is appellee. In volume 10, p. 589, Oyc., it is said:

“Certificates of shares of capital stock are not negotiable _ instruments either in form or character. * * * The general consequence of this doctrine is that whoever takes them takes them subject to the equities and burdens which attend them as in the case of the purchase of any other nonnegotiable paper, and that, although ignorant of such equities and burdens, his ignorance does not relieve the paper thereof, or enable him to hold it discharged therefrom. They are nonnegotiable in the sense that a complete transfer of title, good not only between the parties but also against the corporation itself, can only be made with the concurrence of the act of the corporation in pursuance of its charter, governing statute, or operative by-laws.”

In the case of Young v. South Tredegar Iron Co., reported in 85 Tenn. 189, 2 S. W. 202, 4 Am. St. Rep. 752, the Supreme Court of Tennessee says:

“It is well settled that such certificates (meaning certificates of capital stock) are not negotiable. The assignee takes them subject to all the equities which existed against the assignor. They are choses in action. Cornick v. Richards, 3 Lea, 1.”

It seems to us, upon the facts shown by the record, that, while the -granting of the injunction would not have injured appellee, its refusal cannot injure appellant. In this view of the case, the judgment of the trial • court should be affirmed, and it has been so ordered.

Affirmed.
      (&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indesas


author: BROOKE, J.

text:
    VAN WORMER v. GALLIER.
    (No. 209.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 3, 1917.)
    1. Bills and Notes <&wkey;92(5) — Consideeation —Pre-Existing Debts.
    Promissory notes executed by defendant to take the place of a pre-existing debt due by another to plaintiff are not invalid as not being supported by consideration; the surrender and cancellation of the previous note being sufficient.
    [Ed. Note. — For other cases, see Bills' and Notes, Cent. Dig. §§ 196-19S.]
    2. Bills and Notes &wkey;>471 — Actions—At-tobney’s Fees.
    In a suit on a promissory note,_ attorney’s fees may be allowed as provided for in the note, without allegations and proof that it was necessary to place the same in the hands of attorneys for collection.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1467-1470.]
    3. Bills and Notes <&wkey;534 — Actions — Attorney’s Fees.
    t In a suit on a promissory note, attorney’s fees may be allowed, notwithstanding the absence of proof as to amount agreed upon for collection.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947.]
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Action by R. W. Gallier against Lucy A. Van Wormer. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Howth & Adams and F. G. Vaughn, all of Beaumont, for appellant. Watts & Duflie, of Beaumont, for appellee.
   BROOKE, J.

This suit was brought by appellee, plaintiff in the court below, against appellant, to recover a judgment against appellant on two promissory notes, one for $400, dated December 27, 1915, and one for $500, dated December 27, 1915.

Defendant answered that said notes were made to take the place and stand in lieu of notes for like amounts made by Frank Meagher for a pre-existing debt for which R. W. Gallier was a surety, and that said notes becoming due, and Frank Meagher being unable to pay, the said Gallier became bound to and did pay them; that thereafter, at request of Gallier; Frank Meagher procured the execution of the notes herein sued on to take the place of the amounts plaintiffs paid, by reason of his indorsement and suretyship, and that said notes sued on against appellant are not supported by any consideration, and that she was neither principal, surety, nor obligor on the notes originally executed by Frank Meagher, and that they were of no advantage or benefit to her, to which answer plaintiff filed a supplemental petition alleging that at the time of the execution of said notes plaintiff held the notes of Frank Meagher, the son-in-law of appellant, and was threatening to bring suit thereon, when the said Meagher, in consideration of the acceptance of the notes sued on by plaintiff and the surrender of Frank Meagher’s notes held by him, delivered to this plaintiff the notes sued on, all of which was well known to plaintiff, and that defendant is estopped from denying liability. Defendant answered by supplemental answer, excepting to said supplemental petition on the ground that same set up no ground 'of estoppel against defendant to plead want of consideration, and denying that she was in any way benefited by plaintiff withholding legal proceedings against Frank Meagher, and further excepting to said supplemental petition on the ground that it did not allege how or in what way she could be or was benefited by plaintiff withholding legal proceedings against Meagher, or in what way she would suffer loss or disadvantage by a suit against Frank Meagher on a note on which defendant was not an in-dorser or surety, and not the maker thereof, and not in any way liable thereon, and alleging also that Frank Meagher was insolvent, and that he could not be injured by the bringing of said suit. The court entered judgment in favor of appellee on both of said notes in the sum of $1,076.48, principal, interest, and attorney’s fees, with 10 per cent, per annum interest from date of judgment. Appellant in due time filed a motion for a new trial on the ground: First, that the pleading and the undisputed proof show that said notes were without consideration; second, that plaintiff failed to allege and prove that the notes were presented to appellant for payment, and that payment was refused, and that it was necessary to employ attorneys to sue on them, which motion being overruled, the appellant then and there gave notice of appeal in open court to this court, and thereafter in due time filed her appeal bond, and the cause is now properly before this court for review.

Complaint is made by the first assignment of error that:

“The court erred in rendering judgment for plaintiff, because the undisputed evidence shows that said notes were executed by defendant to take the place and stand in lieu of a pre-exist-ing debt due by Frank Meagher to plaintiff, without any other consideration, by reason of plaintiff having become an accommodation in-dorser on Frank Meagher’s notes.”

The proposition under this assignment is:

“A promise to pay the pre-existing debt of another, without any further or additional consideration, is not binding.”

On the other hand, it is contended that where, as in this ease, one person executes and delivers his or her notes to a third party in payment of the indebtedness of another, and such indebtedness is there paid and relinquished, such notes are based upon a sufficient consideration, and are valid and enforceable.

The question of consideration for the execution of notes under similar circumstances was decided in the case of Meyers v. Van Wagoner et al., 56 Mo. 115, in which case the court said:

“The facts as developed on the trial appear to be: That the plaintiff held the note of Ada-line IT. Van Wagoner’s son by a former marriage for loaned money; that this son was wholly insolvent; that the plaintiff applied to Mrs. Van Wagoner to assume the debt, which she did by executing her own note for the same, and taking up and destroying her son’s note; that plaintiff held this note for some time, when she renewed it by giving' the note in suit with an extension of time of payment. Nothing was said by either party in regard to her separate •property when she executed the notes referred to. She testified on the trial that she did not intend to bind her separate property by assuming the debt and giving her own notes for it. But there was no proof that anything at all was said about her separate property at the time of executing either note. It was admitted that the real estate described in the petition was and still is her separate property. The point that the note sued on was voluntary and without consideration was not sustained by the proof. The surrender and cancellation of her son’s note was a sufficient consideration for the note she executed. If the first note was good, the second note in renewal was tcertainly good, as it was supported by the same consideration, and also by the further consideration of the extension of time.”

We think the appellee’s contention is correct, and the consideration was sufficient, and the record does not refieet whether or not any consideration was paid by Frank Meagher to Mrs. Yan Wormer for the execution of the two notes. There being no error in the action of the court on this matter, the assignment is in all things overruled.

The second assignment is to the effect that the court erred in rendering judgment for attorney’s fees, because plaintiff failed to allege and prove that, said notes becoming due, they were presented to defendant and =she failed to pay them, and that it was necessary to place same in the hands of attorneys to collect them.

The proposition under this assignment is:

“In order- to be entitled to recover attorney’s fees on a note providing for attorney’s fees, it is necessary to both allege and prove that payment was denied, and that it was necessary to place same in the hands of attorneys for collection.”

The law is- not with the appellant on this proposition, but is to the effect that it is not necessary to prove that payment was denied. The plaintiff alleged a demand and refusal to pay the notes, also set up and prayed for attorney’s fees. The authority relied on by appellant is not the law now in this state on the proposition presented.

The third assignment is:

“The court erred' in rendering judgment for attorney’s fees in the absence of proof as to what, if any, amount the holder of the note had agreed to pay the attorneys for collecting same.”

What we have said above disposes of this assignment, and both of the assignments are overruled.

Finding no error in the action of the trial court, the judgment is in all things affirmed.
      <SsoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gj^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    HOLLAND v. WOOD et al.
    (No. 721.)
    (Court of Civil Appeals of Texas. El Paso.
    June 7, 1917.)
    Judgment <&wkey;17(10) — Return oe “Not Found.”
    Where sheriff’s return of “Not found” affirmatively showed a defendant was not served with citation, judgment against such defendant was unauthorized.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31.]
    Error from Palo Pinto County Court; J. T. Ranspot, Judge.
    Action by M. F. Wood against E. R. Holland and others. Judgment for plaintiff, and the named defendant brings error.
    Reversed and rémanded as to the named defendant, and affirmed as to the other defendants.
    Lockett & Rowe, of Ft. Worth, for plaintiff in error. W. P. Smith, of Mineral Wells, for defendants in error.
   HIGGINS, J.

Judgment by default was rendered against E. R. Holland and others in a suit by M. F. Wood. The return of the sheriff upon the citation to Holland is as follows:

“Sheriff’s Return.
“Came to hand on the 14th day of Dec., 1914, at 9 o’clock a. m., and executed in-county, Texas, by delivering to each of the within named defendants, in person, a true copy of this citation (together with the accompanying copy of the plaintiff’s petition) at the following times and places, to wit: After making diligent search for the defendant E. R. Holland, not found in Tarrant county.
“I actually and necessarily traveled ■- miles in service of this citation, in addition to any other mileage I may have traveled in the service of other process in the same case during the same trip. N. C. Mann, Sheriff, Tar-rant County, Texas, by F. B. Claypool, Deputy.”

This return affirmatively shows that Holland was not served with citation, for which reason the judgment against him was unauthorized. No other question is presented.

Reversed and remanded as to Holland; affirmed as to the other defendants.


text:
    WILLIAMS v. GALVESTON, H. & S. A. RY. CO.
    (No. 234.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 25, 1917.)
    1. Carriers &wkey;>320(25) — Injury to Passenger-Alighting at Station — Negligence —Question eori Juey.
    Evidence, in action for injury to passenger in alighting at station, where the platform was 26 inches below the car step, and between the platform and step, and 16 inches below the step, there was merely a plank 12 inches wide, projecting 9 inches outside the step, covering pipes, and not intended for use for passengers, held to make the issues of negligence in not providing adequate moans and appliances for alighting, and in the conductor not rendering proper assistance, questions for the jury.
    [Ed. Note — For other cases, see Carriers, Cent. Dig. § 1244.]
    2. T'eial <&wkey;191(9) — Instructions—Assumption as to Facts.
    The instruction, in action for injury to a passenger in alighting at station platform 26 inches below car step, with nothing between except a plank, 16 inches below the step, covering pipes, 12 inches wide and extending only 9 inches outside the step, that plaintiff could not recover if she put her foot on the edge of the plank and slipped therefrom, and there was room on it for her to have placed her foot without slipping, and but for her failure to do so she would not have been injured, is erroneous as assuming that if she could have placed her foot on the plank without slipping, and failed to do so, she was guilty of contributory negligence without regal'd to the care used by her.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 480.]
    Appeal from District Court, Harris County; W. J. Howard, Special Judge.
    Action by Emily Belle Williams against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    Gill, Jones, Tyler & Potter, of Houston, for appellant. Baker, Botts, Parker & Gar-wood, of Houston, for appellee.
   HIGHTOWER, C. J.

Appellant, Emily Belle Williams, as plaintiff below, filed this suit in one of the district courts of Harris county against appellee, Galveston, Harrisburg & San. Antonio Railway Company, defendant below, to recover damages on account of personal injuries alleged to have been sustained by appellant while alighting from one of the. cars of the defendant at Seabrook, Tex., on the 7th day of September, 19X4. The cause was tried to a jury, and was submitted under a general charge of the court, together with two special instructions requested by appellee. A verdict was returned by the jury in favor of appellee, and judgment entered by the court in conformity with such verdict. Appellant’s motion for new trial having been overruled, the case has been properly brought to this court for revision.

In her petition, appellant alleged that, after the train had arrived at the station of Sea-brook, a regular station on appellee’s road, and had stopped there, and the passengers were leaving the train, appellant in the exercise of due care and prudence for her own safety, undertook to descend the steps of the car in which she had been seated; that, in stepping from the lowest step of the coach to the platform of the) station, her foot caught on the edge of a board or box, covering certain wires or switching apparatus running along the platform, on the side of the platform, just beneath the lowest step of the car, that appellant was violently precipitated to the ground or platform, striking her back and hips severely on the lowest step of the car and on the ground, resulting in the injury complained of.

Appellee was charged with negligence in the following particulars:

(1) “Defendant failed to provide reasonably safe appliances and equipment to enable plaintiff to leave the car With safety.”
(2) “Defendant failed to place a box or stool just below the lowest step of the car, as is customary when passengers are getting off at a regular station.”
(3) “Defendant failed to have the lowest step of the car sufficiently dose to the platform at its station at Seabrook to enable plaintiff to descend from the ear to the platform with safety.”
(4) “Defendant failed to build its platform at its station at Seabrook sufficiently high and properly situated so as to enable plaintiff to descend from the car to the platform with safety.”
(5) “Defendant permitted the box or board covering of the wires or switching apparatus to be placed on the platform in such a way as to interfere with or endanger the safe departure of the plaintiff from its car, and which it did do.”
(6) “Defendant’s employé, the conductor, although standing at the foot of the steps as plaintiff was descending, failed to render her proper and customary assistance, but was looking in the opposite direction from her, and only slightly touched her arm, rendering her practically no assistance whatever in descending from the car, which failure of the conductor was negligence, in view of the facts that the car step was so high from the platform; that no box had been placed there to step upon; and that the board covering of the wires was there.”

The answer of appellee, defendant below, consisted, substantially, of a general demurrer, general denial, and plea of contributory negligence on the part of appellant, in that she failed to use ordinary care, etc., for her own safety while attempting to alight from said car.

We find in appellant’s brief one assignment of error only, upon which she relies for1 a reversal of the judgment against her, and* this assignment challenges the correctness of the action of the trial court in giving to the jury special charge No. 2 requested by ap-pellee, reading as follows:

“If you believe from the testimony that the plaintiff, in alighting from the train, put her foot on the edge of the boxing and slipped therefrom, and was injured, and if you further believe that there was room on the boxing for her to have placed her foot without-slipping, and she failed to do so, and without failing to do so she would not have been injured, then you are instructed that the plaintiff cannot recover, and your verdict should be for defendant.”

There are eight propositions of law submitted under this assignment, showing reasons advanced by appellant why the giving of this charge by the court was prejudicial error, and, while we do not deem it necessary to set them out literally, we will state briefly the substance of several of such propositions. We might say, first, that the court, in the main charge, submitted to the jury for their consideration each ground of negligence relied upon by appellee for recovery, as above mentioned, and instructed the jury that in the event they should believe from a preponderance of the evidence that the appellee was guilty of all or any one of the acts or omissions charged to be negligence by plaintiff, and that plaintiff was proximately caused to be injured by any one or all of such acts of negligence, then to find in favor of plaintiff. Now having given this general charge to the jury, submitting all the grounds of negligence relied upon by appellant, the court, over the objection and protest of appellant timely and properly made, gave to the jury special' instruction No. -2 above set out, at the request of appellee, which had the effect to take from the consideration of the jury every ground of negligence relied upon by appellant, and which was submitted in the court’s main charge for the jury’s consideration, save and except the one ground which said special instruction submits, and affirmatively told the jury that, unless the jury could find in appellant’s favor on such one ground, they would be compelled to return a verdict in favor of defendant. The giving of this special charge by the trial court was error, we think, for several reasons: First, because such charge expressly took from the consideration of the jury several grounds of negligence alleged and relied upon by appellant for recovery, and which allegations were sufficiently supported by proof to warrant consideration by the jury and a verdict in favor of appellant, if such evidence in support of such allegations should have been found by the jury to be true. We shall not discuss this evidence in detail, for we feel that it would serve no useful purpose to do so, but will merely allude to some of the grounds relied upon, which we think were supported by the evidence in such manner as to have required the submission of such issues, to the jury.

For instance, we think that the evidence was sufficient to have carried to the jury the first ground of negligence alleged, to the effect that appellee failed to provide reasonably safe means and equipment to enable appellant to leave the car with safety. The evidence discloses the fact, without contradiction, that the platform at the station of Seabrook was at least 26 inches below the lowest step on appelleefs passenger train from which appellant had to alight, and, while the evidence shows that there was some kind of a boxing laid on this platform for the purpose of covering and protecting some character of pipe or pipe line, yet the evidence ■tends to strongly show that this boxing or pipe covering was not intended for use by passengers.as a means of alighting from ap-pellee's trains at said point, though passengers sometimes, as the evidence shows, stepped onto this boxing, and from there to the platform. The top of this boxing itself was fully 16 inches below the lowest step of the car from which appellant was compelled to alight, according to one of appellee’s own witnesses, who actually measured the distance, and. all the testimony shows that the width of, this boxing did not exceed 12 inches, its covering or top plank being a 2x12, that is a plank 2 inches thick and 12 inches wide, and according to the undisputed testimony, as we gather it-, the width of the top of this boxing was diminished from 2% to 3 inches, by reason of the fact that that much of the top of the boxing extended under and was overlapped by the step of the car itself, measured by a line drawn perpendicular from the bottom of the step to the top of this boxing, and we assume that the width of this boxing or top plank would be still considerably further reduced, in so far as the question of room for a passenger’s foot was concerned, and especially the plaintiff in this case, who was shown to be a woman of between 175 and 190 pounds in weight, for we assume that the size and shape of the calf of such a person’s leg in descending from the step to this box would take up several more inches of this boxing, and it is not unreasonable to suppose, as we view the situation, reflected by the record, that ibis lady had some difficulty in getting down from the step onto this boxing with even an inch of room to spare, though appellee intimates in its brief that there was at least a space of 9 inches in width on this boxing in which appellant could have placed her foot; but we take it that in this conclusion appellee makes no allowance for the size of the lady’s leg, or anything else, but concludes, that she should have stepped down in such manner as would have permitted the full space of 9 inches on which to place her foot. This-could have only been possible, perhaps, in the case of a line drawn perpendicular from the top of the step to the top of this boxing beneath, and would have been impossible, we think, in the case of any passenger, without a very great effort in placing her heel on the boxing in such manner as to have been extended back under the step itself, which would, perhaps, have left the passenger in a very awkward position. While it is pleaded by appellee that this boxing was intended to take the place of a footstool usually and customarily used for enabling passengers to alight, and that it was sufficient, in the place of such a stool, yet appellee, in its brief, expressly states that this boxing over this pipe was not constructed for use by passengers in alighting, and was never intended by appellee to 'be used for such purpose. If this be true, then, in view of the fact that the distance from the car step to appellee’s platform at this station was at least 26 inches, certainly, we think, it ought to have been left to the jury to determine whether or not the means and appliances at this point furnished by appellee to passengers to enable them to alight from its trains were adequate and sufficient for such purpose.

Without discussing this point further, we hold that this ground of negligence ought to have been submitted to the jury, as was done by the court’s main charge, but which was expressly taken from the jury by the special charge given at the request of appellee.

We also think that there was error in the court’s action in taking from the jury, as was done by the giving of this special charge, the second ground of negligence alleged by appellant, to the effect that appellee failed to have a box or stool below the step of the car, for the purpose of safely permitting passengers to alight, for the evidence is undisputed that such a stool or box, as is alleged and shown to have been customarily used for such purposes, was not there, and which might have been used by appellant in alighting from said car. It is, in effect, also alleged, as hereinbefore shown, that appel-lee’s platform at the station of Seabrook was too low and far from the steps to enable passengers to alight with safety to themselves, and we think that the evidence was sufficient to support this allegation of negligence, and the jury should have been permitted to consider the samé. But this was taken from the jury’s consideration by the giving of the special instruction complained of.

We are also of the opinion that appellant’s allegation of negligence, to the effect that appellee’s conductor failed to properly and sufficiently assist appellant while alighting from its car, when said conductor was present, and knew of the situation surrounding appellant, and the insufficient facilities afforded to her by appellee for the purpose of enabling her to alight from the car. It is true, the conductor testified, in substance, that he rendered all the assistance he could in helping appellant while in the act of alighting; but appellant’s own testimony on this point is to the effect that the conductor very lightly touched her arm about the elbow, and rendered her practically no assistance while in the act of alighting from the car. It is true, as contended by appellee, that appellant’s sister testified that she saw the conductor while he was in the act of assisting appellant to alight from the car, and the sister thought that the conductor rendered her such assistance as was customarily rendered passengers; but this is about all that the sister testified on this point. We believe that, under the circumstances surrounding appellant, the condition of the means and facilities afforded by appellee to enable passengers to alight from its train at such point, etc., this issue should have been permitted to go to the jury, as was done by the court’s main charge, but which was taken from the jury’s consideration by the special instruction given at appellee’s request.

It is also insisted by appellant that the giving of the special instruction complained of was, in effect, to tell the jury that if, in fact, there was room on the top of the boxing above mentioned for appellant to have placed her foot without falling, and she failed to do so, and but for such failure would not have, been injured, then appellant was guilty of contributory negligence, and appellee was entitled to a verdict. We think this contention is correct, and, while the term “contributory negligence” is not used in this instruction, yet the effect of it was to tell the jury that a mistake on appellant’s part, or misstep by her in any way, which caused her to fall, would bar her recovery, whether or not such fall resulted from a failure on her part to use ordinary care, or such care as a person of ordinary prudence would have used under the same or similar circumstances. We sustain this contention made by appellant. The court was not warranted in assuming, as matter of law, that appellant would be guilty of contributory negligence if the facts submitted in this special charge existed. It is very true, perhaps, that) the court could have properly eliminated from the consideration of the jury the question as to-whether such act proximately contributed to her injury, because her act was so directly connected with the injury as to necessarily contribute thereto, and, if such act was negligence on her part, it would necessarily follow that there would be no issue of proximate cause involved in her act.

It will not do to say that, because the-court submitted in its main charge the grounds of negligence which we have found ought to have been submitted, appellant cannot complain of the special instruction, which we have been discussing, and which took from the jury, as we have shown, the very grounds of negligence which were submitted in the main charge, because the giving of the special charge had the effect to nullify the main charge, or at least, by giving the special charge, there was such a contradiction in the instructions given by the court to the jury that it must be held that the giving of the special charge was prejudicial error. But, in justice to appellee’s counsel, wé shall say that no such contention is made by them, but they take the broad ground that no prejudicial error was committed by the trial court in giving the special charge complained of, for the reason that the evidence was such that the court should have instructed, peremptorily, in favor of appellee. From what we have said, it follows that this contention of appellee cannot be sustained.

We have already said more than was perhaps necessary in disposing of this case, and it follows that it is our opinion that the-judgment of the trial court should be reversed, and the cause remanded; ahd it is so ordered.
      <J=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes