text:
    MELCHER et al. v. HIGBEE et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 16, 1914.
    Rehearing Denied April 9, 1914.)
    1. Mechanics’ Liens (§ 14) — Homestead-Contract — Validity.
    Where defendants, desiring to obtain a building loan to construct certain improvements on their homestead, executed a note to the contractor for the amount to be loaned, together with a contract reserving a mechanic’s lien, which note and contract were transferred to plaintiff’s testator, who advanced the money, and, prior to the execution of the note and' contract, defendants represented to testator’s attorney that all the labor and materials theretofore provided had been paid for, the lien reserved in the contract was valid as to all work and materials furnished for the improvements on the homestead subsequent to the execution of the contract.
    [Ed. Note. — Eor other cases, see Mechanics’ Liens, Gent. Dig. § 16; Dec. Dig. § 14.]
    2. Estoppel (§ 22) — Recitals—Contract.
    Where a mechanic’s lien on a homestead, executed to secure a building loan, recited that it was agreed that all work already done on the building and all material furnished had been paid for, the borrower was estopped to thereafter deny the truth of such statement in order to avoid the lien.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 27-51; Dee. Dig. § 22.]
    3. Mechanics’ Liens (§ 277) — Description oe Property — Variance.
    Where a mechanic’s lien note described the land as “lot 14, block 41,” while the petition for foreclosure described it as the “west half of lot 14, block 41,” but the contract described it as in the petition, and the note and contract were made a part of the petition, the variance was not fatal.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. §§ 546-554; Dec. Dig. § 277.]
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by Margaret F. Higbee, as executrix of H. D. Brown, Sr., deceased, and others, against Louis Melcher and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellants. G. G. Kelley and W. L. Hall, both of Wharton, for appellees.

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

   McMEANS, J.

Mrs. Margaret F. Higbee, as executrix of the estate of her deceased father, H. D. Brown, Sr., brought this suit against defendants Louis Melcher and wife to recover upon a negotiable promissory note executed and delivered by defendants to H. Beneker on November 17, 1906, being for $1,-200 balance due on said note, and interest, and 10 per cent, attorney’s fees, as provided in the note, which note was indorsed to said H. D. Brown on January 29, 1907; and also for foreclosure of a mechanic’s and furnish-er’s lien on the west half of lot No. 14 in' Block No. 41 in the town of South El Campo, created by virtue of a contract executed by and between Louis Melcher and wife on the one part, and Henry Beneker on the other part, also dated November 17, 1906. The note and lien contract was set out in full in plaintiffs’ petition.

The defendants answered by general denial, and specially pleaded that they were husband and wife at the time of the execution and delivery of the note and contract, and that they, at said time, were living on the lot on which the lien was sought to be foreclosed, and that same constituted their homestead; that the contract for material described in the exhibit attached to the alleged materialman’s lien, set up by plaintiff, was made prior to the execution of said note, and without the consent or “connivance” of the defendant I. A. Melcher, the wife; that all of the material that went into said house was contracted for and work begun upon said premises prior to November 17, 1906, and long prior to the execution of the lien declared upon in plaintiffs’ petition.

To this answer plaintiff filed her supplemental petition, denying that the material for the erection of the house on which her lien was claimed was bought prior to the execution of the contract entered into between the defendants and the contractor, Henry- Beneker; that, while the erection of said house had been begun prior to said time, it was distinctly understood and agreed by and between H. D. Brown, Sr., who purchased the Melcher note from said Beneker, and defendants that he (the said Brown) would not have anything to do with carrying the note of said- Melcher, unless all the material purchased before the entering into said contract was paid for, and a new bill of lumber, based on the contract entered into by and between said Beneker and defendant, was made; that the said Beneker also understood this; that such an arrangement was made between said contractor and the said Melcher, whereby the said bill of lumber theretofore purchased was fully paid for by said Melcher, and an entirely new bill made out for the future erection of said house; that these facts were all, s'o represented to the said Brown, and that it was upon such representation to him that said Brown bought said note; that, if the fact of this settlement of the old bill and the making of the new was not actually made, but only pretended, then same was a fraud on said Brown, and he was not aware of such secret defects and fraud in said transaction, and cannot be bound by it. Plaintiff further alleged that the defendant Melcher had entered into a deliberate scheme to defraud the said Brown by attempting to evade the arrangement regarding the settlement of the prior bill of lumber; that, by reason of all these facts, defendants were estopped from urging the defense set up by them.

In reply to this petition, the defendants filed a supplemental answer, in which they deny that any new contract was ever made or entered into by and between the plaintiff and the contractor, Henry Beneker, for the construction of improvements on defendants’ property, or that any change or amendment of any kind was ever entered into in connection therewith; that some time during the month of October, 1906, the defendant Melcher, being desirous of erecting improvements on the south half of lot 14 in block 41 in El Campo, entered into an agreement with the said Beneker for the erection of said improvements, and to do all the labor necessary therefor, and entered into a contract for the purchase of the material from Mack Webb; that, prior to the making of this agreement and contract, Louis Melcher had borrowed from Horace D. Brown, $1,-500 with which to pay said material bills and labor for the erection of the house; that, at the time said money was so borrowed, no lien was contemplated as between the parties, nor was any given; that on or about the 15th of November, 1906, the greater part of the-material having been purchased and the building partly erected, Mack Webb called upon the defendant Melcher for a payment for the labor and material so sold; that thereupon H. D. Brown, the deceased, was called upon to advance the money, as per the agreement with Melcher; that, when Melcher went to the bank with Brown to get the money, the question regarding the securing of this loan was raised, at the suggestion of P. J. Hardey, and a mechanic’s lien suggested, and the said Melcher agreed to this, and thereupon the papers were prepared ; that the defendants had never paid one cent on the note sued on, but that the in-dorsement of $300 on said note was made by plaintiffs, or some one acting for them, at the time payment was made to Mack Webb for material furnished that went into said building, said payment being -made directly to Mack Webb, and the defendants allege, on information and belief, that the amount so paid to Mack Webb was $1,200, but, as no money ever came into their hands or was ever paid to them or either of them on account of the execution of said note, they could not state definitely as to that. They also deny ever having made any representation to said Brown, or that they attempted to defraud him. The defendant Melcher also admitted in said answer that there was some sum of money advanced by Brown to liquidate the indebtedness due to Mack Webb for material furnished, but, as to such amount, he could only say from what had been told him, and for this he admits that he is personally liable therefor.

The case was tried before a jury, and, when the parties had closed the evidence, the court instructed the jury to return a verdict in favor of plaintiff, and, this being done, a judgment was entered in her favor for the amount of the principal and interest of the note sued on, and for 10 per cent, attorney's fees, as provided in the note and foreclosure of the lien upon the lot of land. Prom this judgment defendant has appealed.

The material evidence is undisputed and is substantially as follows:

Some time in October, 1906, Louis Melcher entered into a contract with Henry Beneker to build him a house on the land in controversy, on a portion of which he and his wife were then living, and which was their homestead. A part of the lumber and material for the building of the house had been bought, and a part of the work thereon had been done, prior to November 17, 1906. A ■day or two prior to November 17, 1906, Mel-eher applied to H. D. Brown, Sr., for a loan to enable him to carry on these building operations. He was referred to W. L. Hall and G. G. Kelley,’ attorneys, at Wharton, Tex., for the necessary steps to be taken in order to get this money. Pie was advised by Kelley that, in order to fix a lien on this property in order to secure the money sought, all material bought and labor done prior to that time would have to he paid. Kelley testified that Melcher told him in that conversation that the work and material furnished up to that date was about $500, and that he (Melcher) had the money to pay this, and he told Melcher if he would pay this off they would make the loan. Melcher did not dispute this. Thereupon Kelley prepared the note and mechanics’ lien contract, which was introduced in evidence, and sent it over to El Oampo by Melcher. Kelley then gave instructions to Mr. Brown and Mr. Hardey, his agent, as to what he had done and what they were to do. and also gave these instructions to Melcher. This note and contract were duly executed by Melcher and wife and Beneker on November 17, 1906, and duly recorded, as the law requires.

This contract contains this recital: “It is understood and agreed by and between the parties hereto, that the work already done upon said building and material already furnished has already been paid, amounting to the sum of $500.00. And the party of the second part hereby acknowledges receipt in full thereof. It is further understood and agreed that none of said work done and material furnished is embraced in this contract, but that all of said material and work embraced in this contract is yet to be furnished and done, and that this is a new and separate contract from that heretofore entered into between said parties for the construction of said building.”

The evidence is undisputed that on January 29, 1907, this note executed by Melcher and wife to Henry Beneker was indorsed to PI. D. Brown, Sr., and that on January 30, 1907, Brown gave Beneker his check for $1,-200, and this check was indorsed by Beneker to Mack Webb on February 1,1907, and Mack Webb got the money on it from the bank on February 2, 1907. The indorsement of the credit of $300 on the note is explained by Beneker as being for extras.

It was undisputed that all of the labor done on the house prior to November 17, 1906, when the note and contract were executed, was paid for on or before that date. All of the above evidence is undisputed.

The defendants, however, dispute, by the evidence of Louis Melcher and Mack Webb, that all of the material that went into this building prior to November 17, 1906, when the contract and note were executed, was paid for on or before that date, but the record does not disclose any evidence as to how much lumber and material was furnished before that date, or how much was paid- for.

Melcher testified: “I do not'know what was the amount due for material in that house at the time this contract was entered into, on Novemuer 17, 1906, but the biggest part of that building was done at that time.”

Mack Webb testified: “I could not say positively how much lumber I delivered to Mr. Beneker or Mr. Melcher prior to the 17th day of November, 1906, nor just how much I delivered subsequent to that time.”

Webb, when afterwards on the stand, testified: “I cannot say whether there was ever a cent paid me at all in connection with the Melcher deal until this payment on the 1st of February, 1907, the date of the check, but we might be able to throw some light on it by looking at the bill that was rendered; maybe that will show some payments or something. Here is a memorandum of $100 paid on the 16th of October, at the time this bill was made. It is in my handwriting on the bill, and was paid at the time the bill was made. There are no other credits on the bill except the $100 when the bill was made, and a little rebate for stuff not taken. So far as my record shows, except for the $100 that was paid at the time the bill was made in the beginning, the 16th of October, the money indicated by this receipt and check is every cent that was paid me on the material. How do I know whether any was paid that I did not make any record of, when my books are gone and I can’t find them? I generally credit up everything I get, of course.”

Melcher testified that the entire cost of the material and labor for the building of the house was about $2,000. The specifications attached to the contract state the total cost of the building to be $2,000.

Kelley testified that when Melcher came to him to see about getting the money from Brown, that he told him that’ he had the money to pay for all the work and material that had been done upon the building at that time, which he said was about $500. Melcher did not deny that he made this statement, but said he did not -remember it.

The note and contract were for $1,500. There was no evidence that Brown, who bought this note, ever knew that any portion of the material for which, and the work done, this note was given was furnished before the execution of said note and lien contract. The contract itself expressly states that all work done and material furnished prior to that date had been paid for.

Under tlie foregoing facts, we are of the opinion, and hold: (1) That the contract between Melcher and wife and Beneker created a valid lien on the lot, and was not a subterfuge for a loan from H. D. Brown (Lippencott v. York, 86 Tex. 276, 24 S. W. 275; Building & Loan Association v. Goforth, 94 Tex. 260, 59 S. W. 871; Churchill v. Bielstein, 9 Tex. Civ. App. 445, 29 S. W. 392; Walters v. Loan Association, 8 Tex. Civ. App. 501, 29 S. W. 51; Downard v. Loan Co., 22 Tex. Civ. App. 570, 55 S. W. 981); (2) that the lien was valid as to all work done and material furnished after the execution of said contract and creation of said lien (Walker v. House [Civ. App.] 24 S. W. 82; Heady v. Bexar B. & L. Ass’n [Civ. App.] 26 S. W. 468); and (3) that, inasmuch as the contract signed and acknowledged by Melcher and wife expressly recited that it was agreed between the parties thereto that the work already done upon said building and the material already furnished, amounting to $500, had been paid for, and that none of the same was embraced in the contract for labor and material to be done and furnished under the contract, and that said contract was a new and separate contract from that theretofore entered into between the parties for the construction of the building, and having procured H. D. Brown to advance the money on the faith of the truth of such recitals, appellants are estopped to deny the same are true, even though a portion of the amount advanced by him may have been used to pay for material and labor furnished and performed before the contract was executed. Roane v. Murphy (Civ. App.) 96 S. W. 7S2; Cain v. Bonner (Civ. App.) 149 S. W. 702.

We are of the opinion, therefore, that the court did not err in instructing the jury to return a verdict for appellee, and the assignments of error raising the point are overruled.

There is no merit in the assignment •which complains that the court erred in admitting in evidence, over appellants’ objection, the note sued on, because. of variance in the description as given therein and in the petition, of the lot sought to be foreclosed upon. The lot was described in the note as lot 14, block 41, while in the petition it is described as the west half of lot 14,' block 41. The contract describes it as the west half of lot 14, block 41, and the note and contract were made a part of the petition. The variance was not such as could have operated to the prejudice of appellants. Nor was it error to admit the lien contract in evidence, over the objection of appellants of variance between the description of the lot as contained . in the note and in the contract, for the same reason. The second and third assignments raising the points are overruled.

We will not extend this opinion by a discussion in detail of appellants’ other assignments of error. It is sufficient to say that we have carefully considered all of them, and find no reversible error in any of them.

The judgment of the court below is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    DARBY et al. v. WHITE.
    (Court of Civil Appeals of Texas. Galveston.
    March 2, 1914.
    Rehearing Denied March 19, 1914.)
    1. Judgment (§ 656) — What Constitutes Conclusive Judgment.
    On the sustaining of exceptions to the original petition, plaintiff filed an amended petition, containing some of the allegations to which exceptions were sustained, and defendants presented an exception in the nature of a plea of res judicata, asserting that the former ruling of the court was conclusive on the question of the sufficiency of the allegations oil the amended petition. RelH, that the order sustaining the exceptions being interlocutory, because it made no final disposition of the cause, it was not a conclusive judgment, and defendants, if dissatisfied with the second petition, should have urged exceptions thereto, and directly assigned the error of the court in overruling them.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 1167; Dec. Dig., § 656.]
    2. Appeal and Error (§ 553) — Record— Bill of-Exceptions.
    Under court rule 55 (142 S. W. xxi), providing that the rulings upon motions for continuance can be reviewed only when exception is reserved and presented in a proper bill, the overruling of a motion for a continuance cannot be considered, where it was only preserved in the minutes of the court.
    [Ed. Note. — Eor other cases, see Appeal and Error,-Cent. Dig. §§ 2461, 2462, 2465-2471; Dec. Dig. § 553.]
    3. Appeal and Error (§ 742) — Assignment op Error — Sufficiency.
    Where the statement subjoined to an assignment of error complaining of the admission of testimony did not refer to any bill of exceptions, or disclose what objections, if any, were urged to the admission of the testimony, it cannot be reviewed.
    [Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    4. Appeal and Error (§ 731) — Assignments of Error — Sufficiency.
    An assignment of error complaining of the charge cannot be reviewed where neither the assignment nor the statement contained the charge excepted to, or its substance, or directed the appellate court as to the page in the record where it could be found.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by T. J. White against W. G. Darby and W. T. Reed. Erom a judgment for plaintiff, defendants appeal.
    Affirmed.
    W. S. Strickland, of Eagle Lake, and W. L. Hall and G. G. Kelley, both of Wharton, for appellants. A. J. Wirtz, of Eagle Lake, and Ring, Oarothers & Brown, of Houston, for appellee.

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

   McMEANS, J.

This suit was brought by

appellee, T. J. White, against appellants, W. G. Darby and J. T. Reed, to recover damages for breach of contract. He alleged, in substance, that he made a contract with appellants, by the terms of which the appellants leased to him 200 acres of land for the year 1910, and agreed to furnish him seed rice for planting the same, three wells and pumping plants, and fuel oil to operate the pumps, and also agreed to repair the tenant house on the premises for the occupancy of appellee; that appel-lee agreed to plant the land in rice, cultivate and harvest the crop, to operate the pumps and water the rice crop; that by the terms of the contract it was agreed that the crop should be divided into two equal parts, one to belong to appellants and the other to appellee. It was further alleged that appel-lee took possession and began preparation to put in the crop, but that appellants breached their agreement, whereby appellee was damaged in the sum of $3,600. The appellants answered by general demurrer, several special exceptions, general denial, and certain special defenses unnecessary to be stated in the view we take as to the proper disposition to be made of this appeal. A trial before a jury resulted in a verdict and judgment for appellee for $500, and appellants Darby and Reed have appealed.

At the first term of the court after this suit was filed the defendants filed a general demurrer to the original petition, which was afterwards overruled, and several special exceptions, the second to the effect that the petition did not set out the correct measure of damages, and the third that the damages alleged by plaintiff were too remote, speculative, uncertain and indefinite to entitle him to recover, and these special exceptions were sustained. Plaintiff then took leave to amend, and at the next term filed an amended original petition. To this the defendants also urged a general demurrer; and, claiming that the amended petition contained substantially the same allegations as the original, they presented an exception in the nature of a plea of res judicata, asserting that the former ruling of the court on special exceptions to the original petition was conclusive on the question of the sufficiency of the allegations of the amended petition. They also presented the same special exceptions to the amended petition as were urged against the original. All these exceptions were overruled, and appellants’ first assignment of error is predicated upon the action of the court in refusing to sustain their exception in the nature of a plea of res judi-cata. No question is otherwise made as to the action of the court in overruling the special exceptions. We think the assignment cannot be sustained. It is clear that the order sustaining the exceptions to the original petition was interlocutory, because it did not make, nor attempt to ■ make, a final disposition of the case. This being true it was incumbent upon defendants when the1 amended petition was filed, if they were not satisfied with its sufficiency, to urge such exceptions as they might deem necessary, and'' if aggrieved by the action of the court in' refusing to sustain the same, that action should have been directly assigned as error. This was not done. Hill v. Nolan (Civ. App.) 147 S. W. 365; Texas Land Co. v. Winter, 93 Tex. 560, 57 S. W. 39; Webb v. Reynolds (Civ. App.) 160 S. W. 154.

The second assignment is based upon the refusal of the court to grant defendants’ motion for a continuance. The order of the court overruling this motion was entered in the minutes, and the exception is there noted. This minute of the proceedings of the court' below did not make the application for continuance a part of the record. Under rule 55 • (142 S. W. xxi), the action of the court upon motions for continuance can be revised here only when exception is reserved and presented in a proper bill. As no such exception was taken in this case, this assignment of error presents nothing to be considered by this court. Railway v. Mallon, 65 Tex. 117; Posey v. Lumber Co. (Civ. App.) 142 S. W. 931; Cranfill v. Fidelity & Dep. Co. (Civ. App.) 143 S. W. 233; Railway v. Blackburn (Civ. App.) 155 S. W. 625.

The third assignment is predicated upon the action of the court in admitting certain testimony in behalf of plaintiff over defendants’ objection. The assignment is not presented in such a way as to require us to consider it, in that the statement subjoined does not refer to any bill of exceptions, nor does it disclose what objections, if any, were urged, or that any exceptions were reserved. Holland v. Closs (Civ. App.) 146 S. W. 671; Autrey v. Linn (Civ. App.) 138 S. W. 197; Lee v. Simmons (Civ. App.) 151 S. W. 868; Hill v. Neese (Civ. App.) 160 S. W. 314.

The fourth assignment purports to assail the court’s charge on the measure of damages. This assignment is not presented in accordance with the rules, and cannot be considered. Neither the assignment nor the statement contains the charge objected to, nor is its substance given, nor are we directed to the page of the record where the charge can be found. Mansfield v. Neese, 21 Tex. Civ. App. 584, 54 S. W. 370; Horseman v; Coleman County (Civ. App.), 57 S. W. 304; Railway v. McClain, 80 Tex. 92, 15 S. W. 789.

The fifth assignment complains that the verdict of the jury is contrary to the law and the evidence in the respects pointed out in the assignment. We think it is sufficient to say, in disposing of this assignment, that we have carefully considered the evidence brought up in the record, and, while we will not set it out, it is sufficient, we think, to justify the verdict rendered. The record discloses no reversible error, and the judgment of the court below is affirmed.

Affirmed.


author: CARL, J. FEY, O. J. CARL, J.

text:
    \CARTER v. WALKER.
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 23, 1913.
    On Motion for Rehearing, April 15, 1914.)
    1. Municipal Corporations (§ 706) — Negligent Use op Streets — Actions—Suffucien-ct of Evidence.
    In an action for the value of a horse which fell when plaintiff jerked suddenly, on the reins, believing that an automobile was about to collide with him, evidence held insufficient to show any misconduct on the part of the chauffeur justifying his fear of a collision.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 15Í8; Dee. Dig. § 706.]
    2. Negligence (§ 72) — Contributory Negligence-Acts in Emergencies.
    A person through whose negligence another is placed in a position where he must adopt a perilous alternative or in a situation of apparent sudden or imminent danger is responsible for the consequences.
    [Ed. Note. — For other cases, see Negligence, Cent Dig. §§ 99, 100; Dec. Dig. § 72.]
    3. Municipal Corporations (§ 705) —Contributory Negligence — Acts in Emergencies.
    An owner of an automobile was not liable for the value of a horse, caused to fall by its driver jerking suddenly on the reins under the belief that a collision was imminent, where there was no misconduct on the part of his chauffeur reasonably calculated to cause a belief that such action was necessary to prevent a collision ; it appearing that the owner of the horse was unreasonably frightened without cause.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.]
    4. Negligence (§ 72) — Contributory Negligence-Acts in Emergencies.
    When the negligence of another has given rise to a belief of imminent danger, a person is not bound to exercise the prudence of a man of ordinary prudence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 99, 100; Dec. Dig. § 72.]
    5. Trial (§ 127) — Misconduct of Counsel-Statement as to Insurance.
    In an action for damages claimed to have been caused by the negligence of the driver of an automobile, plaintiff, after testifying that defendant had told him the number of his ear and had also made another statement about the car, was asked what such statement was; whereupon defendant’s counsel interrupted and told him not to state what somebody else told him, but only what defendant told him. Plaintiff then answered that he said he had insurance on the car. On defendant’s objection the court and plaintiff’s counsel told the jury not to consider such answer, and plaintiff’s counsel further said that they cared nothing about the insurance and only wanted to know what was said as to the number and ownership of the ear. Held, that the circumstances; showed that plaintiff made the statement as to the insurance de--liberately with an appreciation of the effect it would have on the jury, since the questions asked him about the conversation showed that he had told his attorney-about it, and it would be presumed that his attorney told him that such testimony was not permissible; and hence a judgment for plaintiff- would be reversed.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 275; Dec. Dig. § 127.]
    6. Trial (§ 133) — Error—Cure by Instructions to Disregard.
    No admonition to the jury could remove the effects of such testimony, as it could not remove the knowledge that the suit was not between citizens, but between a citizen and a corporation.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.]
    7. Appeal and Error (§ 882) — Review—Invited Error.
    Defendant was in no manner responsible for the admission of such testimony, as his counsel could not have known what plaintiff intended to state when he told him not to tell what any one but defendant said.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    8. Municipal Corporations (§ 706) — Negligent Use op Streets — Questions for Jury.
    In an action for damages alleged to have been caused by the negligence of the driver of an automobile, evidence held to make, a question for the jury as to whether defendant’s automobile was the one which caused the injury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.]
    9. Appeal and Error (§ 237) — Reservation of Grounds of Review — Motion for Mistrial.
    In an action for negligence, where defendant objected and reserved a bill of exceptions to plaintiff’s testimony that defendant said he had insurance, he was not required to ask that the cause be withdrawn from the jury and continued.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1302%; Dec. Dig. § 237.]
    Carl, J., dissenting in part.
    Appeal from Bexar County Court; John •H. Clark, Judge.
    Action by T. S. Walker against H. C. Carter. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded on rehearing.
    Terrell, Walthall & Terrell, of San Antonio. for appellant. T. H. Ridgeway, of San Antonio, for appellee.

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

   CARL, J.

Appellee; T. S. Walker, sued appellant, H. C. Carter, for the value of a horse belonging to Walker, ana alleged that appellant’s servant was negligent in driving his car at a high rate of speed on one of the streets in San Antonio; that appellee was driving along in his buggy, and in order to avoid being struck, or having his horse struck; by appellant’s car, he jerked his horse around and threw it down, thereby injuring the horse to such an extent she died. Appellant pleaded, in addition to a general demurrer and general denial, contributory negligence on the ’ part of appellee. The trial resulted in a judgment for appellee in the sum of $150, from which' this appeal is taken.

The appellant complains that the court erred in refusing to instruct a verdict for the defendant in the county court, to which the case was appealed from the justice court, and assigns such refusal to instruct, by the county judge, as error.

The case seems to have been tried mainly on the issue as to whether the car which caused the wreck belonged to appellant. Walker testified that it was a big gray car. “I was coming down Crockett street in my buggy, and an automobile came down the left-hand side of the street going west, and the negro driving the car turned the car on my buggy and horse, and it either struck me or would have struck me; but I was about half out of the buggy when the horse fell, and I hollered at the negro'. There was a cut place on the horse’s leg. I saw it was a negro driving the car. I did not see the number of the car. It was a big gray car. X don’t know whether or not I have seen the car since. The horse died the next morning after the accident. I took her home. After the horse was knocked down, X helped it up three times before it could stand, and after it got home it laid down and never did get up any more. I paid $150 for the horse. I would have sold her for $175.” And substantially: “I am a dealer in horses, and know the reasonable market value in San Antonio at that time. She was worth on the market $150.” “It was between Losoya street and the bridge. I was going west downhill, and the automobile was going in the same direction. The boy with the car was about 25 yards behind me when I first saw him. I heard the car coming and saw he was not going to stop, and I hollered at him and began pulling my horse to keep him from striking it. I was driving a one-horse buggy. The wheels of the buggy projected out on either side in.the street further than the horse. The negro was coming angling across the street, and it could have hit the horse’s head and not have touched the wheels of the buggy. He missed the buggy about the horse’s shoulder. I throwed the horse down or he would have hit the horse.” “It is rather downhill.” “I don’t know whose car it was, only what I have been told.”

W. C. Fleming corroborates the plaintiff as to the accident, and says he knew the driver ; had seen 'him before that and has seen him since. He saw the number on the car, and says he saw the car with the same driver in it after that, and the car was No. 278, a big gray car. “X first saw the driver when he started to go across Crockett street. I have seen him lots of times before that. When he passed that morning (at Joske’S), I recognized him as the man I had seen before. * * * The reason I noticed him was because he was going so fast, about 20 miles an hour.”

Sylvester Simonds (the negro driver) said he was working for appellant at the time of the accident, driving a large gray Stod-dard-Dayton auto. It was a seven-passenger car, No. 278, and says he had worked for Mr. Carter six or eight years.

Both Walker and Fleming are positive the ear which did the damage to the horse was a large gray auto. Both say the driver was a negro. Fleming says he had seen the negro before and since, and that he was driving the car which did the damage, and the car number is Mr. Carter’s. We think the evidence was sufficient, and the court did not err in refusing to instruct a verdict for defendant.

It is true that “the broad and wise imlicy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his life, or his liberty, upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining, as a question of law, whether the tes•timony establishes more.” In the Joske Case, 91 Tex. 574, 44 S. W. 1059, cited, it was held that the facts did not do more than create a strong suspicion; whereas in this case it is shown that Fleming recognized the driver, knew him before and since the accident. He. was driving a big gray car, and was working for Mr. Carter, and had been for six or eight years. The number of the car was that of appellant, and on the same day of the accident the driver was driving appellant’s car. We think the evidence was sufficient to justify the finding of the jury, and this assignment is overruled.

The court did not err in refusing special charge No. 2 requested by appellant, which is as follows: “In this case you are instructed that if the horse of the plaintiff fell on account of the fact that the plaintiff pulled the rein too suddenly, if he did so pull it, that it was not necessary under the facts and circumstances, or that a reasonably prudent man would not have thought it necessary, for the plaintiff to have so pulled said rein, if he did, and that said act of pulling the rein, if it was 'done, was the proximate cause of the accident alleged, then you will find for the defendant.” Authorities cited by appellant do not apply to this case. The charge requested ignores the doctrine of imminent peril. “When one person is placed in a perilous position by the wrongful act of another, the person so situated is not required to exercise the same degree of care that a person of ordinary prudence would have exercised.” Railway Co. v. Neff, 87 Tex. 803, 28 S. ¡W. 283; Saunders v. M., K. & T. Ry. Co. of Texas, 35 Tex. Civ. App. 383, 80 S. W. 387, and cases cited. Indeed, when a man is borne down upon' by a big seven-passenger automobile at the rate of 20 miles per hour, “prudence” and “ordinary care” are about the least of his assets. In Railway Co. v. Neff, 87 Tex. 303, 28 S. W. 283, it was shown that Neff, in crossing the railway in his wagon, would not have been injured if he had stayed in the wagon; but he jumped out of the back end, fell on the track, and was killed. The Supreme Court held that, when it was shown that the railway company was negligent, the fact that Neff acted rashly or imprudently would not relieve the company.

While appellee Walker was on the stand testifying as to a conversation with appellant, Ms attorney asked: ‘'Did you ever Rave a talk with Mr. Carter about tMs accident? A. Yes, sir. Q. Did you ask Mm tbe number of tbe ear? A. Yes, sir. Q. Wbat did be say tbe number was? A. 276. Q. Did be make any other statement about tbe car? A. Yes, sir. Q. AVliat did be state? Mr. Terrell (Attorney for Appellant): Don’t state wbat somebody else told you; state wbat be told you. A. He said be bad insurance on tbe car.” TMs was objected to as immaterial, and tbe court instructed tbe jury not to consider same. Appellee’s counsel thereupon stated: “We don’t care anything about any insurance upon tbe car. All we want to know is about wbat Mr. Carter said as to tbe number and ownership of the car.” He then turned to tbe jury and said: “Gentlemen of the jury, I will ask you not to consider tbe answer of Mr. Walker about the insurance upon tbe car.”

Appellant complains that, notwithstanding tbe court instructed tbe jury not to consider said remark, and appellant’s counsel did tbe same, it was so prejudicial to bis case as to require a reversal of tbe judgment; and we are referred to a rather fertile field of authorities. In the case of City of Austin v. Gress, 156 S. W. 535, the appellee was on the'stand, and attorneys for the city asked if be would submit to an examination, to which he replied that, if tbe court thought it necessary, he would do so. Attorneys for the city stated that appellant would pay for the examination. Counsel for Gress then asked: “Who do you represent, tbe city of Austin, or an insurance company?” To which tbe attorney replied: “We represent the city of Austin.” Counsel for the appellee then asked: “Been paid by them?” “That is my business,” replied the other attorney, “I generally manage to collect my fees.” Thereupon counsel for appellee said: “If you will state that it is not for the benefit of an insurance company — ” At this point counsel objected, and the court instructed the jury to disregard tbe remark. The Court of Appeals reversed thé casé, because it was apparent that it was the deliberate purpose of the appel-lee’s attorney to get the! fact before the jury that there was indemnity insurance to protect the city.

In the case of Levinski v. Cooper, 142 S. W. 961, cited by appellant, there appears also an intent on part of counsel to get tbe impression to the .jury that the appellant was protected by insurance. Tbe persistence of shrewd attorneys in getting these prejudicial matters before the jury can only be remedied by withdrawing the case from tbe jury and selecting another panel, or for the court to reverse the case. The idea that a court can undo the barm done by information of this kind by merely telling them not to consider such statements is pure fiction. After tbe serpent has thrown its virus into its victim, it would be just about as effective for the physician to tell the patient not to let the poison circulate through his system, as it would for a court to tell a jury they must not consider the very thing it is highly important they should not know. That it is improper to ask questions or to make statements in the presence and hearing of the jury which go to show, or indicate, that the defendant has accident insurance, is well established by the following cases: Levinski v. Cooper, 142 S. W. 960; Trent v. Lechtman (Mo.) 126 S. W. 242; City of Austin v. Gress, 156 S. W. 535.

But in these cases, and indeed in all cases we have been able to find, where eases have been reversed on account of tbe misconduct of counsel in improperly injecting tbe matter of insurance into tbe trial of a case, there was apparently a deliberate intent to get that issue before the jury. This court cannot afford to reverse this ease, however, because of tbe fact that a witness inadvertently mentions insurance. The question asked did not suggest anything of that nature, and there is absolutely nothing, in so far as the record shows, to indicate that counsel expected such an answer as was given. The witness had not answered, and there is nothing to indicate that be would have stated what he did, had it not been that the attorney for the appellant spoke up and said: “Don’t state what somebody else told you; state what he told you.” Then it was the poison was emitted. Counsel could have stopped him entirely. If he anticipated the insurance matter, he might have had the jury removed and then developed the facts. Furthermore, failing in this, he could have asked that the case be withdrawn from the jury after the answer was made and either continued or another jury impaneled, if he felt it unsafe to proceed. He did not see fit to do so, and we do not think he should now be beard to complain. Mr. Justice Jenkins, speaking of a case of this kind, in City of Austin v. Gress, 156 S. W. 536, says: “Sometimes they (remarks) are made un-thoughtedly in the heat of discussion; and in such cases, where the court instructs the jury to disregard them, it will usually be presumed that the jury did so. But where statements, deliberately made, are of such a character that no attorney would have pleaded them, and no well-informed attorney would suppose that he would be permitted to prove them, and the effect of such remarks is highly prejudical, we can see no way of enforcing proper practice in this regard except to reverse and remand the case, where tbe party making such remarks has obtained a verdict.”

Since the answer in this case does not appear from the record to be the result of a deliberate purpose, and because it was elicited as much by appellant’s counsel as by appel-lee’s, we do not feel that we would be jusü-fled in reversing the ease; and, finding no' material error, the judgment of the county court will be affirmed.

Judgment affirmed.

On Motion for Rehearing.

FEY, O. J.

This is a suit for the value of a mare, instituted by appellee against appellant, in which it was alleged that the mare “was killed or died from injuries sustained on or about- the 9th day of February, 1912, by being negligently run into, scared, or caused to fall by an automobile being operated by a servant of said H. C. Carter, on Crockett street, in the city of San Antonio, Bexar county, Tex.” The cause originated in the justice’s court and was appealed to the county court. In each court judgment was rendered for $150, the amount claimed by ap-pellee.

The facts in this case are quite unsatisfactory. Appellee testified that he was going east in a buggy on Crockett street, and then that he was going west, and that he saw a' big gray automobile coming along the street behind him about the distance of 25 yards, and he seems to have become demoralized and got halfway out of the buggy before the automobile passed him on his left, as it should have done; that while he was halfway out of the buggy, and before the automobile reached him, he hallooed to the negro chauffeur, and the mare fell at that time. The hallooing and falling of the mare must have occurred before the automobile reached the spot on which the buggy was standing. He testified: “When I saw it approaching, I hollered at the negro and began to get out of the buggy to keep from getting hurt.” He admitted that the mare was not struck by the automobile, and that he threw her down by jerking the reins. I-Ie testified: “He'missed the buggy about the horse’s shoulder. I throwed the horse down or he would have hit the horse. * * * I jerked the right-hand rein and fell, pulling the horse over, and he fell. I throwed her on one side. Some of her feet were on the outside and some under her. Part of her was against the curb. That was the back part. * * * The wheels of the buggy projected out on either side in the street farther than the horse.” There was no evidence that the automobile was moving faster than the city ordinances permitted. The evidence of Fleming' indicates that the driver intended passing appellee on his right, but evidently he turned his horse very suddenly, and the automobile was thrown over to the left to avoid a collision. He swore that he did not think that the automobile hit the horse. The negro driver swore that he knew nothing of the matters about which appellee and his witness Fleming testified.

The law is well established that if a man is placed in a position where he must adopt a perilous alternative, or even where he is placed in a situation of apparent sudden or imminent danger by the negligent acts of another, the latter is responsible for the consequences. Thomp. Neg. §§ 195, 255; Shear. & Red. Neg. § 89; Wharton, Neg. §§ 94, 95. On the other hand, if the act of the plaintiff resulted from rash apprehension of danger which has no existence or from inordinate and unreasonable fear, he is not entitled to recover. There must be some.reasonable ground for the belief that some sort of action must be taken in order to protect himself to justify a person in taking such action. While a man is not held to the exercise of such prudence, when the negligence of another had given rise to a belief of imminent danger, as would be exercised by a man of ordinary prudence, still a man cannot recover for damages inflicted by himself through wildly imagining that he was in danger. In order to make a case arising from action on the part of the. plaintiff caused by the negligent act of the defendant, it must be 'shown "that there was misconduct upon the part of the defendant reasonably calculated to cause the plaintiff to do the thing that resulted in his injury. There can be no recovery unless there be negligence on the part of the defendant, placing the plaintiff in a situation where he must adopt a perilous alternative or where the negligence of the defendant creates such terror as to cause the plaintiff to act wildly or negligently. The facts in this case do not reasonably show such misconduct upon the part of appellant as would justify appellee in jerking his mare down on the street in a wild attempt to evade an imaginary danger.

The evidence tends to show a case of a man unreasonably frightened at an approaching automobile, 75 feet behind him, losing his mental equilibrium, and jerking his animal down on the street, when there was no ground for fear that there would be a collision. If, however, this be a ease that should have been submitted to a jury, still, the facts being so meager, every illegal fact allowed to go before the jury will be scrutinized with exceeding strictness.

When appellee was testifying, he was asked if he had ever had a talk with appellant about the accident, and he answered that he had, and that appellant had told him the number of his car. He was then asked if he made any other statement, and he answered: “He said he had insurance on the car.” That illegal testimony came from the appellee, who must have known that it was very improper testimony. In consulting with his .attorney, he must have toid him about the conversation with appellant, or he would not have been interrogated about it, and we must presume that his attorney informed him that such testimony was not permissible. He must have appreciated the effect it would have upon a jury trying a case between two citizens, when it was made known, that a corporation, and not the defendant, would have to discharge the judgment for damages. He must have known that the wavering bal-anees would go'down against-tlie “soulless, corporation.” No amount of admonition to: tlie jury could remove tlie effects of the testimony, because it could not remove the knowledge that the suit was not one between ¡citizens, but between a citizen and a' corporation.

Appellee cannot escape the effect of the; testimony given by him on the ground of his ignorance of the baneful effect it would probably have upon the jury. He must be given credit for common sense and at least a modicum of knowledge of human .nature. Judgments have been reversed where attorneys have injected such matters into a trial, and we cannot see that the party has any more right to bring in such matters than would the attorneys. In case of the latter, he might with some degree of reason claim that he had not authorized it; but he has nothing to justify,, excuse, or palliate his deliberate conduct in bringing such testimony before the jury. In the statement of facts it is indicated that he was anxious to tell about the insurance company, for after telling about appellant giving him the number of his automobile, he said, “He made another statement about the car.” When asked what it was, he replied, “He said he had insurance on the car.” The circumstances indicate that he knew that such statement would have a deadly effect on the interests of appellant and therefore testified .to it.

In the bill of exceptions it is recited that the attorney, after appellee had testified to what was said to him by appellant about insurance, stated: “We don’t care anything about any insurance on the car. All we want to know is about what Mr. Carter said as to the number and ownership of the car.” If that was all that was desired to be elicited from appellee the .question as to whether any' other statement was made by appellant was totally unnecessary, because he had already testified as to what appellant said about the number and ownership of the car.

The evidence as to the identity of the automobile calls for strengthening; there being nothing to sustain it except the testimony of Fleming. He identified the driver, but said: “I don’t know that it was the same car. There are lots of gray ears in town, and I don’t know the make of either. I don’t know whether he was driving the same car the day of the accident as the day I saw him at joske’s.” It was, however, sufficient to be considered by a jury.

There was no error in refuting the special charge. If, through the negligence of appellant, appellee was placed in a position where he had to adopt a perilous alternative to protect himself, or if by the negligence of appellant appellee was placed in a situation where in the terror of an emergency for which he was not responsible he acted wildly or negligently, appellant would be liable;. but if there was no negligence upon the part of appellant appellee could not 'recover, no matter how frightened he may have been. Persons driving automobiles on the streets cannot be held liable for injuries resulting from the wild acts of timid persons, super-induced by unreasonable fear. There must be negligence on the part .of the defendant to justify action on the part of the plaintiff. There must be a real or apparent peril. Railway v. Rogers, 91 Tex. 52, 40 S. W. 956.

There is no authority for holding that it was the duty of appellant when the unlawful evidence was brought into the case by appellee to ask that the cause be withdrawn from the jury and continued. Such a ruling would preclude a hearing in this court on any' error' of the trial court, unless there was a formal demand for a withdrawal of the cause from the jury and an application for a continuance or postponement. There are some matters that may arise that would call for' such action upon the part of the complaining party, such as discovering the disqualification of a juror during the trial, or when a party is surprised by the testimony of his witness; but such rule has never been applied to the admission of illegal evidence. Appellant did all that was required of him when he objected to the evidence and reserved a bill of exceptions to the admission of the testimony.

Appellant was in no manner responsible for the admission of the illegal testimony. He could not have known what appellee intended to state when he told him not to state what any one but appellant said. The responsibility for the injection of the damaging testimony rests upon appellee. He voluntarily gave the testimony and is charged with a knowledge of its illegal and dámag-ing character.

The motion for rehearing is granted, and the judgment is reversed and the cause remanded.

CARL, J.

(dissenting).

I think this judgment ought to be affirmed, and that for two reasons: (1) Because the evidence is amply sufficient to justify the judgment of the court below. (2) And because I do not think that the mere mentioning of the fact that appellant had insurance ought to reverse the case when it is not made to appear that it was purposely done, but was a mere incident of the trial, and more especially when the court instructed the jury not to consider such remark and counsel for appellee made a like request.

My views are more fully set out in the original opinion rendered by this court on December 23, 1913; the opinion being written by myself and concurred in at that time by the full court. That opinion will be here referred to for the purpose' of expressing my views fully upon the whole case in this dissent. -


author: RASBURY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. v. BROTHERS.
    (Court of Civil Appeals of Texas. Dallas.
    March 21, 1914.
    Rehearing Denied April 11, 1914.)
    1. COMMERCE (§ 27) — Employers’ Liability Act> — Employé in Interstate Commerce.
    B., employed by defendant carrier as an “extra” brakeman, at all times subject to call, with headquarters at C., paid for his services from the time he started on a trip till returned to C., having been sent out as a brakeman on ' a train engaged in interstate commerce, was, at the time of his injury, when being sent back on a pass to C., on a train of defendant engaged in interstate commerce, not a passenger, but an employé, engaged in interstate commerce, so that action for his death therefrom is governed by the federal Employers’ Liability Act (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.*]
    2. Death (§ 31) — Actions—Plaintiff—Federal Employers’ Liability Act.
    Under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), action for death,of an employé from injury received while engaged in interstate commerce, maintainable only by the personal representative of deceased, must be by his administrator or executor, though he left no estate, and cannot be by relatives in their individual capacity.
    '[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 35, 37-46, 48; Dec. Dig. § 31.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by C. E. Brothers against the St. Louis Southwestern Railway Company. From an adverse judgment, defendant appeals.
    Reversed and remanded.
    E. B. Perkins, of Dallas, and Crosby, Hamilton & Harrell, of Greenville, for appellant. O. O. Mulkey, of Commerce, and Evans & Carpenter, of Greenville, for appellee.

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

   RASBURY, J.

In view of what we consider to be the controlling issue in this case, a sufficient statement of the pleading is that O. E. Brothers sued appellant for damages for personal injuries caused by cinders being blown into his eye while upon one of appellant’s trains en route from Ft. Worth to Commerce, Tex., as the result of appellant’s negligence in the operation of its \;rain. About 5% months after Brothers’ injury, and about two months after the suit was filed, he died, and his parents, Hence and Maggie Brothers, intervened in the suit, alleging his death • and that it resulted from the injuries detailed, and sought damages therefor.

Appellant pleaded in abatement of the suit that it was a common carrier of freight and passengers, and C. E. Brothers its employs at the time of his injury, both engaged at that time in transporting interstate freight and passengers, and that interveners could not for that reason prosecute the suit in their individual capacities, but that same could only be maintained by the personal representative of the deceased, as provided by the terms of the federal Employers’ Liability Act. Appellant further urged, subject to its plea in abatement, its special exception, asserting that the petition was insufficient, because it failed to allege facts which would authorize interveners to prosecute the suit.

Interveners, in response to the plea in abatement, averred that there was no administration pending upon the estate of C. E. Brothers, and no necessity therefor, since at the time of his death he owned no property whatever, nor were any debts due him by others; and further that, at the time he was injured, he was not in the service of appel-Jant, but was traveling as a passenger upon one of appellant’s trains, and as a consequence the federal rule did not apply.

Appellant’s plea in abatement, upon hearing, was overruled, as was also the special exception upon argument. There was trial by jury, with verdict for interveners followed by like judgment, from which this appeal is prosecuted.

The facts essential to a disposition of this appeal, and which are undisputed, are in substance as follows: Appellant is, and was at the time Brothers was injured, a common carrier of freight and passengers, engaged in both interstate and intrastate business or commerce. Prior to and at the time Brothers was injured, he resided at Commerce, and at the time of such injury he was employed by appellant as “extra” brakeman. Preceding the day on Which Brothers’ eye was injured, he served as brakeman for appellant on a train from Texarkana to Ft. Worth. The train came from Little Rock, Ark., to Tex-arkana over the St. Louis Southwestern Railway Company and from Texarkana to Ft. Worth over the line of the appellant, St. Louis Southwestern Railway Company of Texas. The train on which Brothers served as brakeman from Texarkana to Ft. Worth was a passenger train and had on board interstate passengers destined for points within Texas, being in fact an excursion train returning from a reunion of Ex-Confederate soldiers from Little Rock. The train reached Ft. Worth, which was its final destination, about midnight. Brothers spent the remainder of the night in Ft. Worth. The following morning he received a “pass” from appellant,. which authorized him to return over appellant’s line of railway to Commerce. For that purpose he boarded one of appellant’s regular passenger trains at Ft. Worth and did return thereon to Commerce. En route the cinder that caused his injury was lodged m his eye. The train on which he returned was engaged in interstate commerce. Brothers performed no service whatever on the train that returned him from Ft. Worth to Commerce, but by the terms of his employment appellant, nevertheless, paid him for his services from the time he left Texarkana until it returned Mm to Commerce, as if actually in service, furnisliing Mm as well transportation from Ft. Worth to Commerce. Commerce was a terminal of appellant and the place where Brothers received orders, and he was instructed by Ms superior when he left Ft. Worth to report to the proper officials at Commerce for further orders in line with his employment. Brothers arrived at Commerce at 1 p. m. of the same day, remaining there until 11:45 p. m., when he was sent out on an extra freight train; Ms run being from Commerce to Mt. Pleasant, which train was engaged in interstate commerce. Brothers returned from Mt. Pleasant the next day. on a train also engaged in interstate business.

Thus it will be seen that the evidence in the record, and which we have stated in substance, discloses without conflict whatever that the train on wMch Brothers served as extra brakeman was engaged in interstate commerce. It, in like manner, discloses that the train on which he was traveling back to Commerce under instructions of his superiors to there report for further duty was also engaged in interstate commerce. And finally that the train upon wMch he begun his duties after arriving at Commerce was also engaged in such commerce. The facts related being true, appellant asserts that the court should have sustained its plea in abatement, and, if not, then its special exception, both of which asserted that interveners’ cause of action, if any they had, arose under the act of Congress of April 22, 1908 (35 Stat. 65, c. 149 [U. S. Comp. St. Supp. 1911, p. 1322]), and that the case should not have been tried by any rules other than those prescribed by said act. Counsel for interveners in no respect challenge the facts we have stated as being undisputed, but take the position here, as they did in the court below, that Brothers was in no sense in the employ or actual service of appellant at the time he received his injuries, but in fact a passenger, and that appellant owed him, at the time he received Ms injury, that high degree of care wMch a very careful, cautious, and prudent person would have exercised under the same or similar circumstances in transporting passengers for hire. By the rule just stated the case was tried in the court below. Accordingly, under the facts just recited, and in order to determine £he issues raised by counsel for appellant, it becomes necessary to determine whether Brothers, at the time he received his injuries, was in legal contemplation in the employ of appellant, since, if he was, a rule at variance with the one by which the case was submitted applies.

It is undisputed, as we have said in our findings of fact, that Brothers was regularly in the employ of appellant serving as extra brakeman. Under the terms of his employment, he was at all times subject to the call of his master for .the performance of such duties as should be assigned him in line with such employment. When called to duty, his time and pay was allowed until he returned to Commerce, his home and place of employment, whether actually at Ms work or not. The day prior to his injury he was directed to serve on a train from Texarkana to Ft. Worth, wMch he did, arriving at Ft. Worth about midnight, which concluded the run. The following morning he was directed to proceed back to Commerce and report for duty. He did so (being injured en route), arriving at Commerce about 1 p.'m., going out on duty again at midnight on another extra run. Also, as we have said, he did no actual work in the operation of the train but occupied a seat in a coach as any other passenger. Then, was Brothers, under the construction placed upon such matters by the Supreme Court of the United States, in appellant’s employ at the time he was injured, for, in determining whether the federal Employers’ Liability Act applies, it is necessary to consider the decisions of that court affecting Brothers’ relation to appellant at the time of his injuries, since that rule under the national Constitution is supreme? We conclude he was.

In Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336, 116 C. C. A. 156, it is said, in effect, that there are cases that hold that an employe of a railroad company, while going to and from his work, is not engaged in the service of his master, and those that hold to the contrary, but that, whatever may be the conflict concerning ordinary cases, “there can be no question that he is in the service of his master * * * whenever he is doing that which, under his contract of employment, he is bound to do.” In the cited ease the plaintiff was an engineer who w>as on his way, under orders of his superiors, to board a train, which would transport him to another station, at which latter place he would assume his duties as engineer for the defendant company, but while in the company’s yards, and before boarding the train to depart for the point where he would assume his duties, he was injured. There was a verdict in the trial court for defendants and writ of error to the United States Circuit Court of Appeals, where the case was reversed and remanded, and for that reason did not reach the Supreme Court of the United States, but the latter court in Pederson v. Delaware Lackawanna & Western Railroad Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, cites the decision approvingly upon a similar issue, and for that reason is, we think, decisive of the issues in the instant case, since the facts in the Lamphere Case and the instant case cannot be intelligently differentiated.

In the instant case, Brothers went to Tex-arkana in order to do that which his contract required him to do. Arriving at Ft. Worth, the end of his run, he was directed to return to Commerce and there report for further duty, which his contract also bound' him to do, and for doing which he was compensated. As did Lamphere, he commenced his journey, and was injured while en route, and unuer the rule stated and the contract of employment it cannot be said that the relation of carrier and passenger existed, even though Brothers was on a passenger train and performing no actual service, since he was there as a servant receiving compensation and entitled to be on the train solely because of his employment. Such is the federal rule. And, when we turn to the cases in our state courts, we find an unbroken and uniform line of cases holding in consonance with the federal rule that employes, while proceeding to and from the place where their tasks are performed, are in the service of the master and entitled to the benefits and charged with the burdens of the law of this state between master and servant. M., K. & T. Ry. Co. of Tex. v. Rentz; 162 S. W. 959, and cases cited. Most of the cases which hold that the servant is in the employ of the master while going to and from his work were constructions originally for the protection of the servant, and proceed upon the theory that going to and from work is an essential ingredient of the servant’s contract of employment and incidental to it, and in the use and enjoyment of which he is to be protected by the laws relating to master and servant. In the instant case transportation over appellant’s line of railway was the means afforded Brothers for the performance of his service, and it was only because he was the employs of appellant that he was entitled to such right and privilege.

Being, then, of opinion that both appellant and Brothers, at the time the latter was injured, were engaged in interstate business or commerce, it follows that interveners were not entitled to prosecute the suit for damages after his death, in their individual capacities and as next of kin of Brothers, since it is the settled rule, in all cases arising under the federal act, that such suits may be maintained only by the personal representative of the deceased, meaning administrator, executor, etc., notwithstanding the decedent left no estate, and those instituting the suit are all who may, under the law of the forum, recover any such damages. American” Railroad Co., etc., v. Ann Elizabeth Birch et al., 224 U. S. 547, 32 Sup. Ot. 603, 56 E. Ed. 879; Rivera v. A., T. & S. E. Ry. Co., 149 S. W. 223; G., O. & S. E. Ry. Oo. v. Lester, 149 S. W. 841; Kansas City, M. & O. Ry. Oo. v. Pope, 152 S, W. 185; Eastern Ry. Co. of N. M. v. Ellis et al., 153 S. W. 701. Accordingly it becomes our duty to reverse the judgment and remand the ease to the lower court for such proceedings as are not inconsistent with the views here expressed; and it is so ordered.

Reversed and remanded.


author: RAINEX, C. J.

text:
    DURANGO LAND & TIMBER CO. et al. v. SHAW.
    (Court of Civil Appeals of Texas. Dallas.
    March 21, 1914.
    Rehearing Denied April 11, 1914.)
    1. Pleading (§ 111) — Plea of Privilege— Burden of Proof.
    Under Rev. St. 1911, art. 1830, providing that no person shall be sued out of the county of his domicile, except in cases of fraud, when suit may be instituted in the county in which the fraud was committed, a plaintiff, seeking to justify a suit in a county other than that of defendant’s residence on the ground that fraudulent misrepresentations upon which the caiise of action was based were made in the county wherein the venue was laid, has the burden of proving that they' were made in the county where suit was brought.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.]
    2. Pleading (§ 111) — Plea of Privilege-Evidence.
    In a suit in a county other than that of defendant’s residence, evidence held insufficient to show that the fraudulent misrepresentations upon which the action was based were made in the county wherein the venue was laid.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by R. D. Shaw against the Durango Land & Timber Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded, with directions.
    J. D. Williamson, of Waco, Spence, Knight, Baker & Harris, of Dallas, and Wear & Frazier, of Hillsboro, for appellants. Morrow & Morrow and Shurtleff & Cummings, all of Hillsboro,.and Goodson & Goodson, of Comanche, for appellee.

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

   RAINEX, C. J.

The following statement taken from appellant’s brief shows the nature of the suit, to wit:' “R. D. Shaw brought suit in the district court of 1-Iill county against the Durango Land & Timber Company, a corporation, domiciled in McLennan county, and against Edward Rotan, H. JET. Shear, J. F. Rowe, and J. R. Knight, citizens of McLen-nan county, and against P. E. Schow, a citizen of Bosque county (subsequently dismissing as to Schow), alleging as his justification for suing in I-Iili county that fraudulent misrepresentations had been made to him in 1-Iill county which resulted in injury to him. The cause of action asserted was, in substance, that in May, 1909, defendants Rowe and Schow, for themselves and as agents of their codefendants, Rotan and Shear, and as agents of La Montana Land & Lumber Company, through fraudulent misrepresentations had induced plaintiff to subscribe for $7,000 of stock in a corporation to be formed under the name of La Montana Land & Lumber Company, and to give his notes for such sum; that thereafter the proposed corporation, La Montana Land & Lumber Company, was formed, and from time to time thereafter plaintiff paid upon his subscription between $1,200 aud $1,300, and several times renewed his stock notes; that thereafter La Montana Land & Lumber Company was dissolved, and its assets, including plaintiff’s notes., acquired by another corporation, the Durango Land & Timber Company, defendant herein, with notice, plaintiff. becoming thereby a stockholder in the latter company; the prayer of the petition being that plaintiff recover the money paid and that his stock in the defendant company and his notes held by it be canceled. At the trial a judgment was rendered awarding to plaintiff the relief sought, and from that judgment this appeal is prosecuted.”

None of the defendants resided in Hill county. All were residents of McLennan county, except Schow, who resided in Bosque county. Pleas of privilege of being sued in the county of their residence were interposed, which were submitted to the jury by the court and a verdict rendered against such pleas. The jurisdiction of the Hill county district court depended upon false or fraudulent representations having been made to ap-pellee in Hill county, which induced him to subscribe for stock in the land corporation.

Appellants contend that the court erred in submitting to the jury the issue of the right to sue in Hill county, because the evidence fails to show that any fraud was committed upon appellee in Hill county.

The representations claimed to be fraudulent, as shown by appellee’s evidence, are as follows: “As I have heretofore stated, they told me that including the expenses and price of the land they had paid a dollar an acre in gold for the land. If it had been a fact and I had known it at that time that they had not done that, I would not have subscribed for that stock. As I have heretofore testified, they told me of certain parties whom I have named they had doubled up on their stock in this second capitalization. If I had known they had not done that, I would not have subscribed for that stock.”

All the testimony with reference to said representations having been made in Hill county is appellee’s testimony as follows: “It occurred from Aquilla on to Waco. Those gentlemen got on the train at Aquilla, and I talked with them from Aquilla to Waco. The conversation began immediately when Mr. Rowe and Mr. Schow got on the train at Aquilla. It is something like four miles, about four miles, from Aquilla to the McLennan county line. It might vary just a little. * * * It is approximately 20 miles from Aquilla to Waco. * * * I think I signed the subscription list before I got to Waco, but I could not say just exactly how long. I am pretty positive that I did not Sign it in the depot at Waco, although I might have done it. * * * I guess it would •take' something like 40 minutes, possibly 50 minutes, to go from Aquilla to Waco. * * *■ I can’t swear what was said in Hill county and what was said in McLennan county. * * * I accepted their proposition somewhere between Aquilla and Waco. * * • That train had something like four or five miles to go to the McLennan county line. I do not mean to say that all of those representations were made between Aquilla and the county line. I don’t know that they were all made there, but we began the conversation I am sure, and the representations were not completed until we got quite a good ways down the road. I don’t know how far.’’’

Under our statutes, the general rule is that “no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except,” etc. Rev. St. 1911, art. 1830. One of the exceptions is that, “in all cases of fraud, and in cases of defalcation of public officers, in which cases suit may be instituted in the county in which the fraud was committed, or where the defalcation occurred, or where the defendant has his domicile.”

The defendants not living in Hill county, it was incumbent upon appellant to show that the- representations constituting fraud were made in 1-Iill county. The evidence was not sufficiently certain for the jury to definitely fix in which county the fraud was committed, as the witness said he could “not swear what was said in Hill county and what was said in McLennan county,” and for the exception to prevail over the general rule there must be stronger evidence of the existence of facts which would authorize it than exist in this case. The burden was on appellee to show that the fraud was perpetrated in 1-Iill county, but he virtually says, “I cannot say whether it was in 1-Iill or McLennan county,” which renders it so uncertain that the jury were not justified in saying it was committed in Hill county.

The court not having jurisdiction of the parties under the facts, no other assignment will be considered; but the cause will be remanded, with instructions to the lower court to transfer it to McLennan county for trial under article 1833, Rev. St. 1911.