author: HIGGINS, J.

text:
    DAVIS et al. v. WHITE et al.
    (No. 871.)
    (Court of Civil Appeals o-f Texas. El Paso.
    Nov. 7, 1918.
    On Rehearing,- Dec. 5, 1918.
    Further Rehearing Denied Jan. 9, 1919.)
    1. Guardian and Ward @=>182(5) — Suit on Bond — Pleading.
    In suit upon guardianship bond, petition as against sureties was defective, where there was no allegation that they executed the bond, or that they refused to comply with the terms thereof.
    2. Guardian and Ward @=>182(5) — Suit on Bond — Pleading.
    Copying guardianship bond in petition, and alleging that sureties were indebted and liable to plaintiffs, would not show execution of the bond by the sureties.
    3. Guardian and Ward @=>182(2) — Suit on Bond — Necessity lor Adjudication in County Court.
    In suit by wards on guardianship bond, special exception based upon theory that district court had no jurisdiction until wards had invoked all remedies possessed by them in probate court was without merit.
    4. Guardian and Ward @=>130 — Capacity to Sue —Veripication —Bank as Guardian.
    Where bank sued as guardian, and there was no plea putting in issue its capacity to sue as such, there was no necessity for any proof ’as to its capacity, and it is unnecessary to inquire whether evidence of proceedings culminating in appointment and qualification of bank as guardian was properly admitted (Rev. St. 1911, art. 1906, subds. 2, 3).
    5. Guardian and Ward @=>2 — Supervising Estate — Duty op Court.
    Order of probate court, divesting itself of supervisory control of estate in guardianship, was a nullity.
    6. Guardian and. Ward @=>180 — Suit on Bond — Liability op Sureties.
    Notwithstanding decree in accounting suit against guardian as executor and trustee except-

      ed guardianship fund, if guardian in said suit or otherwise has in whole or part accounted to his wards for guardianship fund, his sureties, who were not made parties to accounting suit, are protected to the extent of such accounting.
    7. Guardian and Wakd <§=>58 — Commingling of Funds — Expenditures.
    Where guardian had ample funds as executor and trustee to educate and maintain wards, and was charged under the will to use such funds for that purpose, neither he nor his sureties are entitled to credit for any of guardianship fund expended for such purpose without authority from the probate court.
    On Rehearing.
    8. Pleading <§=403(3) — Defects in Petition —Cure by Answer.
    In suit on guardianship bond, averment in answer sufficiently showing that sureties on bond signed as such would cure want of an allegation in petition that sureties executed the bond.
    9. Contracts <§=>277(1) — Breach—Demand.
    When an obligation arises from a contract, it becomes the legal duty of the obligor to perform ; and if he fails to do so, he has breached his obligation, though no demand has been made of him.
    10. Guardian and Ward <§=>182(5) — Suit on Bond — Pleading.
    Allegation that sureties on guardianship bond became liable and indebted to plaintiffs on the bond does not imply a failure on the part of the sureties to discharge their liability and indebtedness.
    11. Appeal and Error <§=>1040(10) — Erroneous Overruling of Demurrer — Harmless Error.
    Improper overruling of demurrer to petition, which did not show breach of guardianship bond, is not ground for reversal, where special defenses set up by appellant’s answer and undisputed evidence show that they do not claim to have paid appellee’s demand, hut assert exemption from liability on other grounds.
    12. Trial <§=350(1) — Issues Not Supported by Evidence — Submission.
    Contention, in action on guardian’s bond, that charge was upon the weight of the evidence, because it failed to submit value of certain items of property turned over on prior accounting, will b.e overruled, where appellants point out no evidence showing that such items were of any greater value than that at which they were accepted by plaintiffs.
    13. Trial <§=351 (2) — Special Issues —Request in Writing.
    Where case is submitted upon special issues, failure to submit an issue does not present a ground of reversal, unless its submission has been requested in writing by the complaining party, in view of Rev. St. 1911, art. 1985.
    14. Trial <§=350(3) — Special Issues — Submitting Mixed Question of Law and Fact.
    Issues submitting question as to amount of loss sustained by plaintiffs against D. as guardian, and as executor and trustee, held properly refused, as calling for a conclusion upon a mixed question of law and fact.
    15. Trial <§=350(8) — Suit on Bond — Special Issues.
    In suit on guardianship bond, where undisputed evidence showed that guardian had failed to account for guardianship fund, there was no necessity of submitting issue as to amount which had been lost by guardian as executor and trustee.
    16. Trial <§=350(3) — Special Issues — Improper Expenditure of Funds — Liability.
    Where probate court never authorized guardian to expend any part of guardianship fund, and guardian had ample funds as executor and trustee to educate and maintain wards as he was directed to do under will, question as to amount expended by guardian for maintenance and education was immaterial, in suit on the guardianship bond, and was properly not submitted.
    17. Judgment <§=485 — 'Void Orders of Probate Court — Collateral Attack.
    Order of probate court, divesting itself of supervisory control of guardianship estate, being a nullity, was subject to collateral attack.
    18. Trial <§=350(3) — Suit on Bond — Special Issues.
    In suit on guardianship bond, held, that court properly refused questions submitting in substance whether money collected by guardian as such had been turned oyer to plaintiffs, in accounting suit brought against him as executor and trustee.
    19. Guardian and Ward <§= 182(6) — Suit on Bond — Burden of Proof.
    In suit on guardianship bond, defendants had the burden of showing that the guardian had accounted for the guardianship fund.
    Harper, C. J., dissenting in part.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Suit by Willard W. White and others against W. C. Davis and others. Judgment for plaintiffs, and defendants John M. Wyatt
    and T. M. Wingo appeal.
    Affirmed.
    Gowan Jones, Chas. H. Veale, Lea, Me-Grady & Thomason, and John L. Dyer, all of El Paso, for appellants.
    Jones, Jones & Ilardie and Winter, Me-Broom & Scott, all of El Paso, for appellees.
   Statement of Case.

HIGGINS, J.

Henry Lee Davis died testate on August 10, 1906, leaving three minor daughters, viz., Blanche, Maggie, and Irma. By his will he left his estate to these children, but appointed bis brother, W. C. Davis, executor and trustee of his estate, without bond, and directed .that no action he taken in the probate court except to probate the will and return an Inventory, appraisement, and list of claims. This will was probated, and W. O. Davis qualified as executor and trustee of the estate, and assumed control thereof. Under the terms of the will he was vested with full management and control of the estate during the minority of the girls, and given full authority to provide for their maintenance and education out of the estate. The net value of the estate was approximately $70,000. There was a life insurance policy for §2,000 payable to the girls. W. C. Davis was appointed guardian of their estates by the county court of El Paso county and qualified as such. As such guardian, he collected the amount of the policy. The only property coming into his hands as guardian was the proceeds of this policy. John M. Wyatt and T. M. Wingo were the sureties upon the guardianship bond.

Prior to the filing of the present suit on February 14, 1917, Blanche and Maggie became 21 years of age and had married. Irma is still a minor and unmarried. On June 19, 1916, a judgment was rendered in the district court of El Paso county, in favor of Blanche, Maggie, and Irma, against W. O. Davis, upon an accounting and settlement of the estate which ho, as executor and trustee, was holding for them. In that suit, Blanche and Maggie were joined by their respective husbands, and Irma sued by her guardian, the Texas Bank & Trust Company. The fund of §2,000 received by Davis as guardian was excepted from the operation of the decree and left for future adjudication. The proceeding in the county court, wherein the will was probated and W. C. Davis appointed executor and trustee, was numbered 929. The guardianship proceeding in that court was numbered 982. On July 21, 1908, in cause No. 929, upon the petition of Davis, as executor, an order was entered that cause No. 982 be merged in cause No. 929, and “that W. C. Davis, guardian, trustee, and executor, continue to manage said estate heretofore handled under cause No. 982, but that hereafter he handle the same in his capacity as executor, trustee, and guardian in this cause, without the necessity of making further reports, except as is provided in the will.” After the entry of this order, Davis made no further report in the guardianship proceeding, and has never made any final settlement with his wards in respect to the guardianship fund. No action of any kind in cause No. 982 appears to have been had, after the entry of said order, until March 27, 1916, upon which date the following proceedings were had:

(1) Davis filed an instrument stating that he wished to resign as guardian of the estate of Irma Davis, and offered to file such account of the condition of the estate of the minor and of his guardianship as might be required by law.
(2) Blanche and her husband filed a petition staling that Irma was then 15 years old, and had no guardian of her estate; her former guardian, Davis, having resigned.
(8) Waiver-of citation by Irma, and selection of the Texas Bank & Trust Company as the guardian of her estate.
(4) An order was entered upon the said petition of Blanche and her husband, appointing said bank guardian of the estate of Irma. On March 28, 1916, the bank qualified as such guardian.

On February 14, 1917, the present suit was filed in the district court of El Paso county by Blanche and Maggie, joined by their respective husbands and by the bank, as guardian of Irma, against Davis, Wyatt, and Win-go, to recover upon the guardianship bond given by Davis. Succinctly stated, the pertinent allegations of the petition were: That on March 12, 1907, Davis was appointed guardian of the estates of Blanche, Maggie, and Irma, and on March 13, 1907, the said Davis gave the bond required by law and duly qualified, and that the bond which he filed was as follows: (Here is copied verbatim the guardianship bonds, with signatures of Davis, Wyatt, and Wingo appended thereto.) That on March 22, 1907, Davis collected the §2,000 belonging to the estates of the minors, and thereafter used and appropriated the same to his own use. That at all times Davis, in his capacity as trustee and executor, had sufficient funds for the education and maintenance of his wards, and that no part of the estate of his wards was necessary for such purpose. That he had failed to loan the §2,000, as he could have done by reasonable diligence, and by reason thereof he and his sureties were liable to plaintiffs for the §2,000 collected by him, with interest. That Davis had failed to pay any part of the same to plaintiffs, and by reason of the failure of Davis to pay same, or account therefor, he, and Wyatt and Win-go as sureties on his bond, became liable and are indebted to each of the plaintiffs in the sum of §666.66, with interest, for which judgment was prayed. Judgment was rendered in favor of plaintiffs. Wyatt and Wingo appeal. Any other facts pertinent to the decision will be indicated by the opinion.

Opinion.

The overruling of appellant’s general demurrer is first assigned as error. Among the objections urged to the sufficiency of the petition there are two, which, as to the sureties, are regarded as good, namely: The failure to allege the execution of the bond by Wyatt and Wingo, and breach thereof by them. Notwithstanding the liberal rule applying in testing the sufficiency of a petition as against a general demurrer, the petition as against the sureties is fatally defective in these particulars. There is no allegation •that they made or in any wise executed the name, nor to show refusal upon their part to comply with the terms thereof. Copying the bond in the petition, and the allegation that Wyatt and Wingo were indebted and liable to the plaintiffs, do not show execution of the bond by them, nor breach thereof. The authorities so hold. Jennings v. Moss, 4 Tex. 452; Gray v. Osborne, 24 Tex. 157, 76 Am. Dec. 99; Sneed v. Moodie, 24 Tex. 159; Parr v. Nolen, 28 Tex. 798; Whitaker v. Record, 25 Tex. Supp. 382; Brackett v. Devine, 25 Tex. Supp. 195; Grant v. Whittlesey, 42 Tex. 320; Cotton v. Thompson, 159 S. W. 455; Merchants’, etc., v. Williams, 181 S. W. 859; Carter v. Olive, 128 S. W. 478. In Parr v. Nolen, supra, Chief Justice Moore remarked that these rulings appeared somewhat technical, but followed same. This court cannot ignore the authorities cited, and in deference thereto it is constrained to hold that the petition is insufficient as to the sureties.

By the second assignment, the sufficiency of the petition is questioned as against a special exception. This exception was presented upon the theory that, in order to maintain suit in the district court upon'a guardian’s bond, it must be shown as an indispensable requisite of the district court’s jurisdiction that the probate court had required final settlement by the guardian, or that the probate court had judicially found the guardian in default, ordered him to settle, and he had failed to do so, or must otherwise show that the wards had invoked all the remedies possessed by them in the probate court. This question has been several times before the courts, and it is held that the wards may proceed by an independent suit in the district court to obtain proper relief against the guardian and his bondsmen. There is no merit in the exception. Moore v. Hanscom, 103 S. W. 668; Carpenter v. Soloman, 14 S. W. 1074; Timmins v. Bonner & Long, 58 Tex. 554; Francis v. Northcote, 6 Tex. 185; Fort v. Fitts, 66 Tex. 593, 1 S. W. 563; Key v. Key, 167 S. W. 173.

Error is assigned to the admission in evidence of the proceedings of March 27 and 28, 1916, culminating in the appointment and qualification of the Texas Bank & Trust Company as guardian of Irma Davis. The bank sued as guardian, and there was no plea putting in issue its capacity so to sue. So there was no necessity for any proof on that point; hence it is unnecessary to inquire whether the evidence was properly admitted. Article 1906, subds. 2, 3, R. S.; Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Kaack v. Stanton. 51 Tex. Civ. App. 495, 112 S. W. 706.

Neither is there any error presented by the ruling on evidence complained of in the fifth assignment.

Various other assignments complain of the court’s charge, refusal to submit requested issues, and that the judgment against the sureties is contrary to the law and evidence. Without undertaking to discuss these assignments in detail, but in view of a retrial, we will indicate our views upon the legal questions involved as applied to the facts presented by this record. In the first place, no importance is attached to the order of July 21, 1908. By this order the probate court undertook to completely divest itself of the supervisory control over the estate in guardianship which was vested in it under the Constitution and statutory law. The effect of this order was to turn over to Davis, as executor and trustee, the management and disposition of the guardianship fund, leaving him absolutely uncontrolled by the probate court in respect thereto. We think it clear that the probate court had no authority to divest itself of its supervisory control over the estate and deprive the wards of their right to have their estate administered under its control. The order was a nullity. Wheeler v. Duke, 29 Tex. Civ. App. 20, 67 S. W. 911; Prince v. Ladd (Sup.) 15 S. W. 159.

While this is' true, yet if it can be shown that Davis, in the suit in the district court or otherwise, and taking into consideration the consequences resulting from commingling of funds, as hereafter indicated, has in whole or in part accounted to his wards, for this guardianship fund, then manifestly to the extent of such accounting his sureties are’protected; and this is true, notwithstanding the decree in the accounting suit excepted the guardianship fund from its operation. Wyatt and Wingo were not parties to that suit, and neither their rights nor their liabilities are affected thereby. In this connection it is noted that Davis, as executor and trustee under the will of his brother, came into possession of an estate of the net value of over $70,000. Under the terms of the will he was given management and control thereof, and vested with authority and directed to educate and maintain the minor daughters out of this estate. He was authorized to do all this free from the control of the court. In addition to the estate mentioned, he, as executor and trustee, under a void order of the probate court, took possession of the guardianship fund. These two funds and his personal funds he commingled, and the identity of the $2,000 was lost. From the very inception of his trust under the will he disregarded the terms thereof, and by the district court has been made to account to his cestuis que trust by turning over to them a large amount of property which he had acquired in his own name with trust funds; and in the decree of the district court a personal judgment has been rendered against him in favor of the daughters for $13,643.03, which remains unpaid.

Davis, as executor and trustee, had ample funds to educate and maintain the children, and his brother’s will expressly authorized and directed him to use the trust estate for that purpose. There is no pretense that the probate court ever authorized the expenditure of any of the guardianship funds for any purpose. Having ample funds as executor and trustee to educate and maintain the children, and charged under the will with the duty to use sufficient of those funds for that purpose, and having no authority from the probate court to so expend any part of the guardianship fund, it follows that neither Davis, as guardian, nor his sureties, are entitled to claim any credit for any of the guardianship fund which may have been expended in educating and maintaining the children, if, in fact, any was so expended.

For the commingling of the guardianship money by Davis with the trust estate and his personal funds there is no excuse. So far as the guardianship fund is concerned, the sureties must suffer the consequences resulting from this wrongful act. So, upon retrial, the sureties are entitled to no credit iu respect to the accounting which Davis has been compelled to make to the plaintiffs, unless they can show that Davis, in his accounting with the plaintiffs, has surrendered to them property and actually paid in money sufficient to account for the entire trust estate and guardianship fund. No issue in respect thereto should be submitted to the jury, unless competent evidence be adduced to present such issue.

Reversed and remanded.

On Rehearing.

In their motion for rehearing, appel-lees call the court’s attention to the rule that, in considering the sufficiency of a petition attacked by general demurrer, the answer may be looked to and omissions in the petition cured by allegations of the answer. This rule is well established and has been applied by this court. Hotel Dieu v. Armendariz, 167 S. W. 182. Appellees, in their motion, also call our attention to the answer, and point out an averment therein sufficiently showing that Wyatt and Wingo signed the bond as sureties. This aired the want of an allegation in the petition that Wyatt and Wingo executed the bond.

As to the ruling that the petition was demurrable because of its failure to show a breach of the bond by the sureties, appel-lees seem to misunderstand our holding. It was not held that it was necessary to show a demand of the sureties to perform the conditions of their bond. When an obligation arises upon a contract, it becomes the legal duty of the obligor to perform his obligation. If he fails so to do, he has breached his obligation; and this is true, though no demand has been made of him. An allegation that an obligation arose does not necessarily imply that the obligor has failed to discharge the same. So the allegation that Wiyatt and Wingo became liable and indebted to plaintiffs on the bond does not imply a failure on their part to discharge their liability and indebtedness. In holding that the petition in this case did not show a breach by the sureties was meant that it did not show a refusal or failure on the part of the sureties to discharge any liability or indebtedness which it was alleged had arisen.

But, however this may be, it is concluded, upon two authorities cited by appel-lees in their motion (Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324; Merchants’, etc., v. Williams, 181 S. W. 861), that the case should not be reversed because of the absence of an allegation in the petition showing breach of the bond. The question arises simply upon the action of the court in overruling the general demurrer. In Rains v. Wheeler, supra, the court refused to reverse upon an assignment complaining of the overruling of a general demurrer, assigning as its reason that no prejudice aca-ued to the defendant. Merchants’, etc., v. Williams, supra, followed this ease, and refused to reverse where a general demurrer had been improperly overruled, saying that the omission in the petition did not contribute in any manner to the judgment rendered. In the case at bar the special defenses set up in appellants’ answer and the undisputed evidence shows that they do not claim to have paid appellees’ demand, but assert exemption from liability upon other grounds. Upon the whole record it-is very plain that the omission from the petition of the allegation in question did not in any wise contribute to the judgment rendered, that no possible prejudice has thereby accrued to appellants, and upon the authority of the cases cited it is now held that the improper overruling of the demurrer is not ground for reversal. We do not undertake to announce any general rule upon this subject, but limit the holding in this case to the instant facts. In this connection, it is proper to say that Chief Justice Harper has at all times been of the opinion, under the authority of Milliken v. Callahan County, 69 Tex. 205, 6 S. W. 681, that the petition was sufficient within itself. He did not dissent from the original holding in the case, for the reason that he thought the case should be reversed upon the eleventh assignment.

There were various other reasons urged why the general demurrer should be sustained, but, with the exception noted, the pleadings are regarded as sufficient.

In view of the conclusion now reached as to the sufficiency of the pleadings, it becomes necessary to pass upon those assignments not specifically mentioned in the original opinion. The case was tried before a jury and submitted upon special issues. Tbe charge of the court is as follows:

“This case will be submitted to you on special issues, and you are requested to return your answers to the following 'questions:

“The property to which the two questions propounded in this charge refer is the following: [Here follows a description of certain property which Davis was required to surrender to appel-lees in the accounting suit in the district court.]
“The total value at which the same was transferred by W. O. Davis, and received by plaintiffs herein, was $30,900.
“Question No. 1. Was the value at which W. O. Davis transferred the above property to the plaintiffs, by virtue of the orders and stipulations in cause No. 11817 in the Forty-First district court of El Paso county, Texas, a fair and reasonable valuation of same? [Answer: No.]
“Question No. 2. What was the fair and reasonable value of the property described above at the time the same was transferred by W. C. Davis to the plaintiffs herein, on the 19th day of June, 1916? [Answer: $36,400.]”

Appellants complain that the charge was upon the weight of the evidence, because it failed to submit to the jury the value of certain other items of property which Davis had likewise been required to surrender to appellees in .the accounting suit. It seems that these other items had been accepted by appellees 'at an agreed value in the accounting suit. There are two replies to this assignment :

In the first place, appellants point out no evidence that these items were of any greater value than that at which they were accepted by appellees in the accounting suit. Unless there was evidence to show that the items were of greater value than the value at which they were so accepted, then there was no issue to submit.

In the second place, this case was submitted upon special issues, and in such cases the failure to submit an issue does not present a ground of reversal unless its submission has been requested in writing by the complaining party. Article 1985, R. S.

Error is assigned to the refusal to submit the following issues:

“Question No. 1. What amount of loss did W. O. Davis, as executor and trustee of the estate of H. D. Davis, make or sustain?
“Question No. 11. What was the total amount of loss sustained by plaintiffs against W. O. Davis as executor and as guardian?
“Question No. 16. What was the amount of loss sustained by plaintiffs against W. O. Davis as guardian?
“Question No. 19. What amount of loss, if any, was sustained by plaintiffs against W. O. Davis:
“A. As guardian?
“B. As executor and trustee?
“State both amounts, and in so answering same, let your answer be as follows:
“Answer A. The amount of loss sustained by plaintiffs against' W. C. Davis as guardian is $-
“Answer B. The amount that was sustained by plaintiffs against W. O. Davis as executor and trustee is $-.
“Question No. 14: Did W. O. Davis as guardian expend annually upon'plaintiffs herein, while they were minors, for their education and maintenance, a sum equal to two hundred ($200) dollars per annum ? Answer Yes or No.
“Question No. 15. Did W. O. Davis as guardian expend for the maintenance and education of plaintiffs herein while they were minors, and upon each of them, a sum equal to one-third of two hundred ($200) dollars annually?
“Question No. 24. If you find that any part of the $2,000 collected by the defendant W. O. Davis as guardian was turned over to the plaintiffs herein, either in money or property, at the time of the final accounting in the suit in the district court or prior thereto, did the plaintiffs have notice or knowledge thereof?”
Questions 1, 11, 16, and 19 were properly refused, because they called for a conclusion upon a mixed question of law and fact. Watson v. Patrick, 174 S. W. 632; Rogers v. Broadnax, 24 Tex. 538; Gresham v. Chambers, 80 Tex. 544, 16 S. W. 326. The requested issues were not accompanied by any instruction upon the law by which the same could have been intelligently answered. We do not see how the jury could have intelligently answered the same, without appropriate instructions to guide it in determining the “amount of loss.”

We are of the further opinion that it was immaterial what amount had been lost by Davis as executor and trustee; and the majority are of the further opinion that the undisputed evidence shows, under the rule announced in the original opinion, that Davis had failed to account to appellees for the guardianship fund and that it has been wholly lost to appellees. Hence there was no necessity to submit any question to the jury in that respect.

As to questions 14 and 15, these also were properly refused as immaterial under the evidence. As was pointed out in the original opinion, the probate court never authorized the expenditure of any part of the-guardianship fund, and Davis had ample funds as executor and trustee to educate and maintain the children, and under his brother’s will was charged with the duty to use sufficient of those funds for that purpose. Furthermore, in the accounting suit he was allowed credit for $23,521.20, being all that he claimed to have expended in that behalf.

Question 24 was immaterial. If Davis, under the rule stated in the original opinion, has accounted to appellees for any part of the guardianship fund, then his sureties to that extent would be protected, regardless of any question of notice to appellees.

Assignments 13, 14, 15, and 16 assert that the judgment is contrary to the law and the evidence. Upon the facts stated and rule announced in the original opinion, these assignments are regarded as without merit. As was therein stated, the consolidation order of the probate court of July 21, 1908, is regarded as a nullity. As such it is subject to collateral attack.

Under the eleventh assignment, complaint is made of the refusal to submit four Questions, viz.:

“Question No. 21. Was any part of the §2,000, collected by the defendant W. O. Davis as guardian, turned over to or has it been received, by the plaintiffs herein, either in money or property, at the time of the final accounting in the suit in the district court, or prior thereto? Answer Yes or No.
“Question No. 22. If you have answered the above and foregoing question in the affirmative, what amount, either in money or property, was so turned over by him?
“Question No. 22a. Did the $2,000, or any part thereof, which was collected by the defendant W. O. Davis as guardian, find its way into the funds or property turned over by W. O. Davis to the plaintiffs herein in the final accounting in the suit in the district court or prior thereto? Answer Yes or No.
“Question No. 23. If you' have answered the foregoing question in the affirmative, what amount in funds or property was turned over by said W. C. Davis?”

The majority are of the opinion that the refusal to submit these questions presents no error. The record discloses these undisputed facts: When the probate court made the order of July 21, 1908, Davis commingled the $2,000 with the funds which he held as executor and trustee. He testified that it lost its identity, and he had never been able to trace it since. He admitted that, when he was required by the district court to render an accounting of his trust, he had used $40,-500 of trust funds in his personal affairs; that he had invested the same in various items of property. This property he was required to surrender to appellees by the judgment rendered in the accounting suit. He received credit for the property so surrendered. He also received credit for $23,521.20 for moneys expended in the maintenance and education of appellees; also $3,282.73 expenses incurred in the management of the estate: He was allowed all he claimed to have expended for expenses, maintenance, and education. After allowing these credits, there was still a balance due of $13,643.03, for which judgment against him was rendered and is still unpaid. A part of the property which he surrendered was taken at an agreed value, and he testified the valuation was fair, and there is no evidence to the contrary. The remainder was taken at an appraised value of $30,900. This is the property described in the foregoing charge of the court. In this suit the jury found that the fair and reasonable value of that property was $36,400, and to this finding appellants make no exception. The difference between $36,-400 and $30,900 is $5,500.

As the sureties were not parties to the accounting suit, they were not bound by the appraised value of $30,900; and in this suit, upon the finding of the jury, it must be assumed, in so far as the rights of the sureties are concerned, that Davis was entitled to an additional credit of $5,500 for the surrendered property. Deducting this amount from the $13,643.03 still leaves a balance of $8,143.03. On account of the commingling of funds, it is wholly impossible to say how much of it represents the guardianship fund. The commingling was unlawful. The appel-lees were minors, and had no way to prevent it. The appellants, by their bond had guaranteed the faithful discharge by Davis of- his duties as guardian. They must assume any loss resulting from the act of their principal in commingling the guardianship fund with the other trust fund. It is clear upon the facts stated that Davis has not accounted to appellee for all the funds which he commingled. There is at least a balance due of $8,143.03. The burden rested upon appellants of showing that he had accounted for this $2,000, and there is no evidence to trace it, or any part thereof, into the property which Davis surrendered in the accounting. He testified that he lost all trace of it, and ■ there is no evidence to the contrary. Upon the evidence, it would have been impossible for the jury to have answered the questions noted above, and the majority is of the opinion that it was not error to refuse their submission. For this reason, the eleventh assignment is overruled.

Chief Justice HARPER does hot concur in this conclusion, being of the opinion that the questions should have been submitted and the case reversed on account of such failure. Judge HARPER states his views as follows:

“I agree that the order of the probate court consolidating the two estates was a nullity, in that it could not have the effect to discharge the guardian, nor to relieve the sureties upon his bond, but leaves Davis in the position of having mingled the funds without any lawful authority. The initial idea of confusion of goods is that there has been such an intermixture of goods owned by different persons that the property of each can no longer be distinguished. In this case, the trust funds and the guardianship funds all belonged to the plaintiffs in equal portions, and the act of depositing the guardianship funds in bank in the trust account could not, of itself, have the effect to lose its identity; nor does the fact that they were invested in the property, without being able to say into which piece of property it went, have this effect, for the reason that in the accounting suit the plaintiffs have accepted this very property, under Davis’ testimony, and there is none to the contrary. The court in the latter case determined that there was not enough property turned over to settle the trust fund, and in addition gives judgment for a definite amount of money. This decree binds the guardian, but not the sureties, because they were not parties thereto. It seems to me that the sureties are entitled to have the guardianship funds first looked after, instead of the trust fund consuming the guardianship fund.
“The question here is: Did any of the funds held by Davis as guardian find their way into the funds or property turned into and accepted by plaintiffs in the accounting suit? If so, then the sureties upon his bond should not in this suit be adjudged to again pay it to them. The appellant requested a special issue to be given to the jury to the effect: Did the funds held by Davis as guardian find their way into the funds or property turned into the plaintiffs in the accounting suit? The court refused to submit the issue and this is assigned as error. Davis has testified that it all went into it and there is no evidence,,to the contrary. This I consider reversible error, for under the pleadings and facts it became a question for the jury to determine whether the guardian had accounted, in whole or in part, to his wards for the moneys sued for, and if the jury should so determine the sureties upon the guardian’s bond should have credit for such amount in this suit. America Bonding Co. v. Logan, 132 S. W. 894; Fidelity D. Co. v. Schelper, 83 S. W. 871.
“In passing upon this assignment of error, the majority opinion holds: ‘It is clear upon the facts stated that Davis has not accounted to appellees for all the funds which he commingled.’ In my opinion, we are not in a position now to determine that question, because the jury were not permitted to pass upon it. I cannot give my assent to that part of the majority opinion which holds that, if Davis be given credit for the $6,500, which the jury found was the value of the property over and above what it was taken at in the accounting suit, he would still not have accounted for the $13,643.-03, for which they took judgment in the other suit, for, with the property taken for $5,500 less than it was worth, they have a judgment for that much more than they are entitled to, and we are not justified in presuming that Davis will not pay the judgment as rendered, and, if not, then the $5,500 is subject to the guardianship account, and the sureties should have their credit.”

Upon the view of the majority, it follows that the motion for rehearing should be granted, and the cause affirmed.

It is so ordered.

HARPER, C. J., dissents in part.
      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    MacDONALD v. AYERS.
    (No. 353.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 8, 1918.
    Rehearing Denied Jan. 1, 1919.)
    Appeal and Error <®=»1001(1) — Findings— Review.
    Where .findings of jury as to all material issues necessary to support judgment are based upon sufficient evidence, the judgment will be affirmed.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Suit by J. K. Ayers against R. D. MacDonald, in which John B. Peyton intervened. Judgment for plaintiff and intervener, and MacDonald appeals.
    Affirmed.
    Moody & Boyles, of Houston, for appellant.
    Fisher, Campbell & Amerman, Jno. B. Warren, and Nugent & Lewis, all of Houston, for appellee.
   HIGHTOWER, C. J.

This suit was filed

by J. K. Ayers, appellee, against R. D. MacDonald, appellant, in one of the district courts of Harris county, and, while pending, John B. Peyton intervened. The purpose of bringing the suit on the part of Ayers was to have an accounting between himself and MacDonald, Ayers claiming an indebtedness against MacDonald, and alleging that upon an accounting he would be entitled to a judgment against MacDonald for such indebtedness. We shall not attempt to make a detailed statement of the pleadings of either side, for the reason, as stated by counsel for appellant in his brief, the- pleadings are very voluminous, and many of the issues made by them were disposed of in the trial court, and are not before this court for consideration.

Succinctly stated, the material contention made by the plaintiff below was that he and MacDonald had formed, substantially, a partnership arrangement, for the purpose of selling and purchasing lands, each of them agreeing to put up one-half of the purchase money for each tract of land that they might purchase, and each of them to share one-half in the proceeds of the lands so purchased, when sold by them. It was alleged that during this partnership arrangement a number of tracts of land, naming them, were purchased, and that in each instance, title to same was taken in the name of MacDonald for convenience, and that afterwards these several tracts of land so purchased were sold by MacDonald to the Keystone Mills Company, the aggregate acreage of the several tracts so sold being 2,846.7 acres, the consideration therefor being $35,583.75, a part of which was paid in cash and the balance evidenced by the note of the Keystone Mills Company, expressing a vendor’s lien. These several tracts of land, alleged by Ayers to-have been purchased under this partnership arrangement, were described as follows:

From H. M. Trueheart, 878 acres out of the Alfonso Steele survey, and 275 acres out of the Lemuel Smith survey in Montgomery county.
From J. W. Lewis, 684 acres out of a school land survey in Montgomery county.
From M. E. Heartmann, 585 acres out of the Lemuel Smith and A. Steele surveys in Montgomery county.
Prom Ashby James, 647.7 acres out of a survey made for the T. & N. O. Railway Company in Montgomery county.
Prom A. Morehead, 60 acres out of the A. Steele survey.
Prom J. O. Bennette, 100 acres out of the Lemuel Smith survey.
Prom R. G. Morris, 100 acres out of the Lemuel Smith survey.
Prom Robert Marsh, 100 acres out of the Lemuel Smith survey.
Prom I. D. Pairchild, 100 acres out of the Lemuel Smith survey.

In his answer, MacDonald, among other things, alleged that it was true that the Trueheart, Lewis, and Ashby James tracts were purchased by himself and Ayers under said partnership agreement, as claimed by Ayers, but that, as to the other tracts mentioned and claimed by Ayers as having been purchased under said partnership agreement, said other tracts were not, in fact, purchased for the account of said partnership, but that, in fact, they were purchased for MacDonald individually, and that he •paid for them out of his own individual means, and that such tracts belonged to him individually, and that Ayers was not entitled to share in the proceeds of the sale of any of them so purchased for himself individually; and this claim on the part of Ayers and its denial on the part of MacDonald constitutes the principal issue between the parties in this case, and the first three assignments of error found in appellant’s brief challenge, in substance, the sufficiency of the evidence to support the jury’s finding in favor of Ayers on this issue, such finding being that all of said tracts of land were purchased under said partnership agreement, and that Ayers was ■entitled to share in one-half of the proceeds of the sale thereof, as made to the Keystone Mills Company.

The case was submitted to the jury upon special issues, and most of the fact issues, including the one just mentioned, were found by the jury in favor of Ayers, and most of the assignments of error found in appellant’s brief challenge the findings of the jury in Ayers’ favor on such special issues. We ■have not the time to take up these assignments separately and discuss them, but we have given them careful consideration, and have concluded that the findings of the jury as to all material issues necessary to support the judgment in this case were based upon sufficient evidence to sustain them, and that the trial court, therefore, did not err in rendering judgment on such findings of fact in favor of appellee, Ayers, against appellant MacDonald, and all such assignments are •overruled.

Such assignments of error contained in appellant’s brief as relate to the legal questions touching the procedure, etc., in refusing to submit special issues for appellant, and in admitting certain testimony over appellant’s objection, as well as other assignments raising legal questions, have been considered, but we have concluded that none of them show any error committed by the trial court prejudicial to the rights of appellant, either in its judgment in favor of Ayers and against appellant, or in favor of the inter-vener Peyton, as against appellant, and all of appellant’s assignments of error are therefore overruled, and the judgment of the trial court will be affirmed; and it is so ordered.
      dSxoEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BENJAMIN et al. v. YOUNGBLOOD et al.
    (No. 770.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 18, 1918.
    On Rehearing, Jan. 9, 1919.)
    Husband and Wife <§=»156 — Notes of Wife —Validity.
    Wife would not be personally liable upon notes executed by her in part payment for land conveyed to her, her husband signing the notes pro forma. '
    Appeal from District Court, Reeves County; P. R. Price, Judge.
    ■Suit by Ella Youngblood and others against Abbie L. C. Benjamin and husband. From the judgment rendered, defendants appeal.
    Reversed and rendered.
    J. W. Parker, of Pecos, and Hutcheson & Hutcheson, of Houston, for appellants.
    Howard & Cooke and Ross & Hubbard, all of Pecos, and Jno. H. Cunningham, of San Antonio, for appellees.
   HIGGINS, J.

On May 1, 1914, J. F. Har-bour conveyed to Abbie L. C. Benjamin, the wife of H. W. Benjamin, certain lands, as her separate property. In part payment therefor, she executed promissory notes of even date with the deed. In the execution of the notes her husband joined pro forma. The present suit was brought by the appellees against Mr. and Mrs. Benjamin to recover upon the notes and for foreclosure of lien. A personal judgment was rendered against Mrs. Benjamin for the amount of the notes with foreclosure of the vendor’s lien against her and her husband. From this judgment the Benjamins appeal, presenting the proposition that promissory notes executed by a feme covert for the unpaid purchase price of land are not binding upon her and that the court erred in rendering a personal judgment against her.

The question presented is ruled by the decision of the 'Supreme Court in the case of Red River National Bank v. J. E. Ferguson et al., 206 S. W. 923, not yet officially reported. Upon the authority of that case, the contention of the appellants is sustained, the judgment of the lower court reversed, and judgment here rendered against Mr. and Mrs. Benjamin in favor of the appellees, foreclosing the latter’s lien and ordering the land sold in satisfaction of the amount due the respective appel-lees upon the notes sued upon; the judgment of this court in all respects to conform to the judgment of the lower court, except that no personal judgment is here rendered against the Benjamins.

Reversed and rendered.

On Rehearing.

Appellees’ motion for rehearing has been carefully considered, and we adhere to the view that under the decision in the case of Red River National Bank v. Ferguson et al. Mrs. Benjamin is not personally liable upon the notes sued upon, and that the personal judgment for the amount of such notes was improperly rendered against her.

The motion for rehearing is therefore overruled, but, in deference to the request of ap-pellee, additional facts are found as follows:

Mrs. Benjamin executed the notes sued upon, the same being ordinary promissory notes; her husband, H. W. Benjamin, signing the same pro forma. The notes were given in part payment for the land conveyed to Mrs. Benjamin by Harbour, the deed reciting that the entire consideration for the land was paid and secured to be paid by Mrs. Benjamin, to wit, $3,509 cash and the execution of the notes sued upon; the notes being described as of even date with the deed and executed by Abbie L. C. Benjamin, and the deed further reciting “the cash payment paid as aforesaid having been paid out of the separate funds of the grantee herein, and the said notes to be paid out of the separate funds and estate of the said Abbie L. C. Benjamin,” and that the land was conveyed to Mrs. Benjamin to her own separate estate and use.

Mrs. Youngblood, the plaintiff, testified:

“I am the legal owner and holder of about $9,750 of notes executed by Abbie L. O. Benjamin and her husband, H. W. Benjamin. I had the vendor’s lien notes on that land at the time it was sold. I had sold the land to Well-born, and the notes that Wellborn gave me were taken up by the Harbour notes; then the Harbour notes were taken up by the Benjamin notes. I was here at the time the trade was made between Harbour and Benjamin. I was conversant with the status of affairs, the facts of that trade.
“Mrs. Benjamin purchased this land. The question of whether Mr. Benjamin or Mrs. Benjamin was responsible was discussed, and Mrs. Benjamin signed the notes first, and that she was to pay them. She had an income sufficient to meet those notes as they became due, and Mr. Benjamin, I didn’t, of course, look to him for it at all, but I did to Mrs. Benjamin, as she was there, and she signed the notes first and then he signed them. I had a conversation with Mrs. Benjamin in reference to this being her separate property, and she was going to pay for it. We talked it over. She was here, and she had this income every year from some property at Houston, and that she would — she had something like $5,000 every six months, and had something to pay the notes off as they came due. She could pay the notes out of annuities that she received from the estate. That was the understanding at the time the deal wjas made, and why I agreed to accept their notes in place of the original Harbour notes.
Cross-examination: “I would not have taken the notes if I had not believed they were to be paid out of her separate estate.”

The testimony aforesaid, of Mrs. Young-blood, was not controverted.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GREENWOOD, J.

text:
    GULF, C. & S. F. RY. CO. v. MUSE, District Judge.
    (No. 3134.)
    (Supreme Court of Texas.
    Jan. 8, 1919.)
    1. Courts <&wkey;30> — Court’s Jurisdiction.
    Ordinarily, court’s jurisdiction over subject-matter and parties, once fully attached in a cause, continues until all issues both of fact and of law have been finally determined.
    2. Courts <&wkey;66(7) — Terms — Construction of Statute.
    Bev. St. 1911, art. 1726, authorizes, not the calling of a new distinct or independent term, but merely the continuance of same term, so that during period of extension court necessarily possesses the same power as during original term.
    3. Judgment <&wkey;298 — Amendment — Same Term.
    Court may revise any judgment, decree, or order at term at which it was rendered.
    4. Judgment <5&wkey;341 — New Trial <&wkey;165— Vacation — Same Term.
    Any judgment, decree, or .order, including order granting new trial, may be vacated by court at term at which it was rendered.
    5. IVords and Phrases — “Trial.”
    “Trial,” given its ordinary and accepted meaning, means the judicial investigation and determination of issues between parties.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second 'Series, Trial.]
    6. Appeal and Error <&wkey;933(l) — Validity of Order — Presumptions—Regularity.
    An <jfder vacating an order granting new trial, dated same day that final judgment was entered, will be presumed, in absence of anything to the contrary, to have been rendered prior to entry of final judgment under presumption that it was regularly and lawfully made.
    7. Courts <&wkey;66(7) — Extension of Term-Validity of Order — Trial.
    Where court extended term under Rev. St. 1911, art. 1726, “until the conclusion of said pending trial,” an order made before entry of final judgment vacating order granting a new trial was rendered during such extended term; the granting of such motion before entry of final judgment being part of the trial.
    8. Mandamus <&wkey;4(4) — Vacating Judgment —Remedy by Appeal.
    The right to have a judgment reinstated and enforced by mandamus is not affected by the fact that an appeal from such judgment can be taken or a writ of error to review judgment secured on a retrial.
    9. Mandamus &wkey;s9 — Successive Proceedings — Enforcement of Judgment.
    The Supreme Court, under Const, art. 5, § 3, may issue writ of mandamus to require district court to enforce judgment, although prior thereto the Court of Civil Appeals under Rev. St. 1911, art 1595, has issued a writ of mandamus directing court to retry case.
    Mandamus by the Gulf, Colorado & Santa Fé Railway Company against ‘the Honorable E. B. Muse, District Judge.
    Writ issued.
    F. J. Wren, of Ft. Worth, E. M. Browder, of Dallas, Lee Lomox & Smith, of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for plaintiff.
    Geo. A. Harmon and Marcus M. Parks, both of Dallas, for defendant.
   GREENWOOD, J.

The district court of Dallas county was engaged in the trial by jury of a cause, numbered 22277B, wherein H. L. Collier was plaintiff and the Gulf, Colorado & Santai Fé Railway Company was defendant, at its January term, 1917, without time to complete the trial before the expiration of the term, whereupon the presiding judge extended the term by the following order, duly entered on the minutes on March 31, 1917, to wit:

“Whereas, the trial of the above entitled and numbered cause commenced on March 19, 1917, and
“Whereas, the end of the January term, 1917, is at hand, said term ending March 31, 1917, and
“Whereas, the trial of the above numbered and entitled cause has not been concluded but is still in progress, and
“Whereas, it will take some time to conclude the trial of said cause:
“Therefore, I, E. B. Muse, the presiding judge of the Forty-Fourth district court, with the power vested in me by the statutes of the state of Texas, under article 1726, do deem it expedient and necessary that the rights of all parties may be preserved and protected, do extend the January term, A. D. 1917, of said court until the conclusion of said pending trial; the extension of said January term 'being intended to cover such time as necessary to finish and complete the trial of said above numbered and entitled cause, and extension of said trial will include and is intended to include the conclusion of this trial in the ordinary, legal and statutory manner, the submission of the cause to the jury, their deliberation, and finding upon same, the filing of a motion for new trial, if same becomes necessary 'by either party, and the action of the court upon such motions as may be necessary and become incident thereto under the statute growing out of said trial. This term is extended to include everything under the law that is necessary to be done to make a full and complete conclusion of said pending trial now in progress in this court.”

On April 11, 1917, the jury returned a general verdict in favor of the plaintiff, against the defendant, for the sum of $4,000, and the verdict was duly noted on the docket.

Within two days after the verdict was rendered, the plaintiff filed a motion for a new trial, which was afterwards amended, and on June 2, 1917, the court made and entered an order finding that the motion was well taken and adjudging that a new trial be granted.

Immediately after the announcement by the court of this order, on plaintiff’s motion for a new trial, the defendant, on June 2, 1917, filed a motion for a rehearing and to set aside said order, and the court directed counsel for the respective parties to submit in writing such briefs and arguments on defendant’s motion as they might desire to present. Un compliance with the court’s direction, counsel on both sides submitted written briefs and arguments, the last being in behalf of plaintiff and being filed on September 15, 1917.

The court took defendant’s motion, and the briefs and arguments thereon, under advisement until October 5, 1917, when it granted the motion by the following order, to wit:

“The court having had under advisement the motion of defendant filed herein June 2, 1917, asking for a reconsideration of, and a rehearing on, the order of this court made June 2, 1917, sustaining plaintiff’s motions for a new trial and granting the plaintiff a new trial and of said motions, and said motion and the arguments of counsel for plaintiff and defendant thereon having been duly considered by the court, and the court being fully advised in the premises: Now on this date, in open court, it is ordered, adjudged, and decreed by the court that said defendant’s motion for rehearing be granted and that the order at this extension of term heretofore made on June 2, 1917, granting plaintiff a new trial herein, be set aside, and held for naught, and plaintiff’s original and amended motions for new trial being now fully considered, they and each of them are in all things overruled, to which ruling of the court the plaintiff H. L. Collier in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District sitting at Dallas. And on motion of plaintiff, 90 days is hereby granted to plaintiff from and after this date in which to prepare and file statement of facts and bills of exception. And now by this order the said above cause being finally disposed of in this court under the extension of the January term of this court made March 31, 1917, for the completion of the trial of said cause and all orders and motions incident thereto as per the terms of said order, the said extension of said January term of this court is now here declared closed on this October 5, 1917.”

The court, on the same day, viz. October 5, 1917, caused to be entered on the minutes, “as of April 11, 1917,” a final judgment, in conformity with the verdict, in favor of the plaintiff and against the defendant for $4,000, with interest from April 11,1917, at the rate of 6 per cent, per annum and all costs, for which execution was ordered to issue. Prior to October 5, 1917, no judgment had been entered on the verdict.

At the October term of the court, the plaintiff filed a motion to set said cause for trial, which was overruled, and thereupon plaintiff filed his original proceeding for mandamus against the district Judge in the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, and in said proceeding, on October 27,1917, obtained the following judgment, to wit:

“This cause came on to be heard, the application of relator, H. L. Collier, for a writ of mandamus, to compel the respondent, Hon. E. B. Muse, judge of the Forty-Fourth judicial district, Dallas county, to proceed to trial and judgment in the case of H. L. Collier v. Gulf, Colorado & Santa Fe Railway Company, No. 22277B, now pending in said court, and the same being inspected, because it is the opinion of this court that the trial of said cause was concluded upon the granting of plaintiff’s motion for a new trial by said court, that the extended term of that court thereupon ended, and all subsequent orders made in the case were without authority of law and void: It is therefore considered, adjudged, and ordered that the application be granted, and that the writ of mandamus issue, commanding the respondent to proceed to the trial of said cause No. 22277B.”

On September 4, 1918, the Chief Justice of ' the Supreme Court, in vacation, granted a temporary writ of prohibition, directing the district judge to desist from a new trial of the cause, which he had ordered in compliance with the judgment of the Court of Civil Appeals, until this proceeding could be heard and determined by this court.

It will aid in the correct determination of the validity of the order of the trial court, setting aside its previous order for a new trial, to bear in mind the following thoroughly established principles: Firsts that ordinarily the jurisdiction of a court over both subject-matter and parties, once fully attached ip a cause, continues until all issues both of fact and of law have been finally determined. Second, that article 1726, Rev. St., authorizes, not the calling by the district judge of a new, distinct, or independent term, but merely the continuance of the same term, so that duying the period of extension under the article the court necessarily possesses the same power as during the original term. 15 C. J. 886; Bank v. Withers, 6 Wheat. 106, 5 L. Ed. 217; Keith v. Ala., 91 Ala. 2, 8 South. 353, 10 L. R. A. 432. And, third, that it is within the power of the court, at the same term, to revise or vacate any of its judgments, decrees, or orders, including orders granting new trials. Blum v. Wettermark, 58 Tex. 125; Nowlin v. Hughes, 2 Willson, Civ. Cas. Ct. App. § 313; Hume v. John B. Hood Camp Confederate Veterans (Civ. App.) 69 S. W. 643; Watson v. Williamson, 33 Tex. Civ. App. 269, 76 S. W. 794; Ry. Co. v. Hugen, 45 Tex. Civ. App. 329, 100 S. W. 1000.

It follows that, if the order vacating the award of the newt trial was made before the end of the extended term, its validity is beyond question. The district judge extended the term “until the conclusion of said pending trial.” The honorable Court of Civil Appeals determined that the “trial of said canse was concluded upon the granting of plaintiff’s motion for a new trial,” and that was on June 2, 1917.

The language of article 1726 has not heretofore been construed by this court; but we think that the words “conclusion of such pending trial,” as used in said article, cannot be properly given such a restricted meaning as is required to support the decision of the Court of Civil Appeals.

Giving the word “trial” its ordinary and accepted meaning in law of “the judicial investigation and determination of the issues between parties” (Century Dictionary; 28 A. & E. Enc. of Law, 636), it would just as much include the action of the court on a motion, presented immediately after an order had been rendered granting a now trial, to set aside such order, as it would include the action of the court in granting a new trial. The court possessed the same control over the order as over the final judgment, and there is no essential difference in the limitations imposed in each case, by the expiration of the term, on the exercise of such control. The duty of the court to correct error or injustice in its previous action was the same, whether the error or injustice inhered in the final judgment, or in steps leading thereto, or in the award of the new trial.

The decisions of this court furnish no warrant for holding that the trial of this case was concluded on June 2, 1917. Not only did the presiding judge consent to consider a motion for rehearing immediately after announcing the award of the new trial, and not only was the motion for rehearing, forthwith and on the same day filed, but the record shows that no final judgment on the verdict was entered until the 5th day of October, 1917. Had it not been decided, it would seem clear that the district court could not intend to close an extension of a term ordered for the express purpose of making “a full and complete conclusion” of a pending trial before the entry of final judgment. However, when the question was presented to this court as to whether a trial had been concluded pri- or to the entry nunc pro tune of final judgment, in order to determine whether a statement of facts had been filed within the prescribed time after the adjournment of the term at which the trial was had, it was answered in the negative. The opinion, by Chief Justice Brown, declares:

“Plaintiff in error contends that the trial court had no authority, after the adjournment of the term at which the trial was had, to make up a statement of facts proved at the hearing. Article 1379, Revised Statutes, contains this provision: ‘After the trial of any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection,’ etc. It is also provided by an act of the Twenty-Eighth Í Legislature that, ‘by an order entered during the term, the court may authorize a statement of the facts to be made up in vacation, within twenty .days after the adjournment of the term.’ Laws 28th Leg. 32. It is true that, without such order, no statement of facts can be made after an adjournment of the term of the court at which the trial is concluded; but the phrase, ‘after the trial,’ denoting tjie time when the statement may be made, is broad enough to embrace the entry of the judgment nunc pro tunc as a part of the trial, justifying the court in making and certifying to the statement of facts after judgment was actually entered. Hill v. State, 41 Tex. 255; Sabine & E. T. Ry. Co. v. Joachimi, 58 Tex. 454; Jenks v. State, 39 Ind. 1.” Palmo v. Slayden & Co., 100 Tex. 15, 92 S. W. 797.

The case of Hill v. State, 41 Tex. 255, decides that—

“The trial may well be held incomplete until all the issues of law as well as of fact have been determined and the final judgment entered.”

The Court of Appeals had asked the question:

“Does the trial embrace the final judgment?” And had answered: “We think so, unquestionably. The trial has not terminated until the final judgment has been entered and the sentence pronounced.” Mapes v. State, 13 Tex. App. 91.

The Supreme Court of California likewise concluded that—

“Until the decision itself has been entered in the minutes, or reduced to writing by the judge and signed by him and filed with the clerk, the case has not been tried to a legal intent.” Hastings v. Hastings, 31 Cal. 98.

Giving the order on defendant’s motion the benefit of the presumption always indulged, in the absence of anything to the contrary, that it was regularly and lawfully made, we would be required to presume, if necessary to uphold same, that, being dated the same day as the order for the entry of the judgment, it was rendered prior thereto. Winder v. Winder, 86 Neb. 496, 497, 125 N. W. 1095; Skinner v. Roberts, 92 Ga. 366, 17 S. E. 353; Forrer v. Coffman, 64 Va. 878; Gammage v. Moore, 42 Tex. 170. And we could not say that, being rendered prior to the entry of final judgment, it failed to antedate the full and complete conclusion of the trial. Until the trial was fully and completely concluded, the extension of the term had not expired by the unequivocal terms of the order.

We conclude that, on the facts shown by this record, the extension of the January, 1917, term had not expired when the court, on October 5, 1917, vacated the order for a new trial, and hence the final judgment on the verdict of the jury is in full force and effect.

And we have no doubt that the defendant is entitled to enforce by mandamus bis clear legal right to have the reinstated judgment respected and enforced. It is no sound objection to the award of the mandamus that the defendant might finally secure a review of an adverse judgment following a retrial, by means of appeal to the Court of Civil Appeals and writ of error to the Supreme Court. For it has been’ the law of Texas since Bradley v. McCrabb, Dallam, 507, that the writ of mandamus “will not only issue, in cases where the party having a specific legal right has no otner legal operative remedy, but, where the other modes of redress are inadequate or tedious, the writ will be awarded." Not only would the remedy to defendant of appeal and writ of error, after another trial, be manifestly tedious, but such remedy would also be inadequate; for it is the very essence of defendant’s right that it is entitled not to have to respond further to plaintiff’s cause of action than by payment of his judgment. Justice Ramsey, in speaking for the court in Wright v. Swayne, 104 Tex. 444, 140 S. W. 222, Ann. Cas. 1914B, 288, said:

“If the court should willfully refuse to execute its own judgments according to their true intent and effect, we would have the authority and it would be our duty to direct it to proceed to execute the judgment and sentence of the law.”

But it is insisted that since article 1595, Rev. St., confers on our Courts of Civil Appeals, or any judge thereof, in vacation, original jurisdiction to compel a district judge to proceed to trial in any cause, and since in the exercise of that jurisdiction a mandamus has been awarded by the Court of Civil Appeals of the Fifth District commanding the district judge to try this cause, we are bound by that award.

Section 3 of article 5 of the Constitution authorized the Legislature to “confer original jurisdiction on the Supreme Court, to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the state.” Under that authority the Legislature has conferred on this court original jurisdiction- to issue writs of mandamus, “agreeable to the principles of law, regulating such writs against any district judge or Court of Civil Appeals or judge of the Court of Civil Appeals, or officer of the state government, except the Governor of the state.” Vernon’s Ann. Civ. St. Supp. 1918, art. 1526, Rev. St.

It is inconceivable, in view of the express language' of this article and the respective jurisdictions of the Supreme Court and of the Courts of Civil Appeals, that it was ever intended by the Legislature that this court should be precluded from granting full relief to one whom it found entitled- to the writ of mandamus, under the law governing that writ, by reason of a contrary opinion of the Court of Civil Appeals. While the acts of those courts, under the authority conferred by article 1595 are entitled to, and will always receive, our utmost consideration, they cannot control the exercise of this court’s original jurisdiction; and, of course, when a judgment is pronounced in the exercise of that jurisdiction, all writs necessary for its enforcement may be issued. Pickle v. McCall, 86 Tex. 212, 24 S. W. 265; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224.

It is therefore ordered that the clerk of this court issue the writ of mandamus, directed to the respondent, commanding him to enforce the final judgment heretofore entered on the minutes of the district court of Dallas county, Forty-Fourth judicial district, in cause No. 22277B, styled H. L. Collier v. Gulf, Colorado & Santa Fé Railway Company, and to proceed no further with a new trial of said cause so long as said judgment remains unreversed.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: STRONG, J. PHILLIPS, C. J.

text:
    DAUGHERTY et al. v. WILES.
    (No. 14-2590.)
    (Commission of Appeals of Texas, Section A.
    Jan. 15, 1919.)
    1. Trial <&wkey;139(l) — Direction of Verdict —Sufficiency of Evidence.
    To authorize the court to take a question of fact from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusions to be drawn from it.
    2. Principal and Agent <&wkey;23(2) — Establishment of Relation-Circumstantial Evidence.
    Agency may be established by circumstances such as the relation of the parties and their conduct with reference to the subject-matter of the alleged contract.
    3. Principal and Agent <5&wkey;22(3) — Evidence-Acts of Agent.
    Agency cannot be established, by proof of the acts of the agent, unless it appears that the .principal knew of, or assented to them,' but where the acts justified a reasonable inference that the principal had such knowledge and would not have permitted them if unauthorized, the acts are competent.
    4. Principal and Agent <&wkey;>24 — Establishment of Relation — Questions of Law and Fact.
    It is within the province of the court to' determine whether under an ascertained state of facts an agency exists, but it is for the jury to determine the existence of facts sufficient to constitute agency.
    Error to Court of Civil Appeals, Fourth Supreme Judicial District.

      Consolidated actions by J. H. Wiles against L. H. Bradford and another and against B. M. Daugherty and another, respectively. Judgment for plaintiff was affirmed by the Court of Civil Appeals (156 S. W. 10S9), and defendants Daugherty and an-
    other bring error.
    Reversed and remanded, as recommended by Commission of Appeals.
    O. M. Fitzhugh and P. H. Swearingen, both of San Antonio, for plaintiffs in error.
    W. L. Schlesinger and IP. H. Booth, both of San Antonio, for defendants in error.
   STRONG, J.

The plaintiff, Wiles, instituted two suits, one being against L. H. Bradford and Patrick Henry on two notes payable to Wiles, aggregating the sum of $1,275, and the other being against plaintiffs in error, Daugherty and Hancock, on two notes executed by them, payable to L. H. Bradford and Patrick Henry, and being otherwise conditioned as the notes involved in the other suit, it being alleged by Wiles that they were delivered to him by Bradford and Henry as collateral to secure the payment of their notes. The suits were consolidated.

Bradford and Henry answered by general demurrer and general denial, and Henry added by way of special answer that all four of the notes sued upon were executed at the same time and for the same consideration; that the notes he signed were in reality the collateral notes to secure the Daugherty and Hancock notes; that the consideration for all the notes p,assed direct from Wiles to Daugherty, who bought an interest which Wiles owned in the San Antonio Furniture Company. Plaintiffs in error, Daugherty and Hancock, in addition to the general denial, answered in substance that the notes executed by them were given as a part of the consideration for the purchase by Daugherty from Wiles of a one-half interest in what was known as the San Antonio Furniture Company; that the Wiles interest in the business had been offered for sale to Daugherty by Bradford, all the negotiations for said.sale being conducted through Bradford, or Bradford and Henry as the agents of Wiles. It was further alleged that in the negotiations leading up to the sale Bradford and Henry made certain misrepresentations concerning said business, which induced Daugherty to purchase the Wiles interest in said business, and that the representations so made were untrue, false, and fraudulent; thereby the consideration of the notes had failed. Hancock further answered that he was only a surety on the notes, which fact appeared on the face of the notes and was known to all parties, and that Wiles had granted an extension on the principal notes without the knowledge or consent of Hancock, whose notes were only collateral, and that he was thereby relieved from further liability.

The case was submitted to the jury on special issues, including the issue of agency as made by the pleadings. The jury being unable to agree upon this issue, the court peremptorily instructed them to find that neither Bradford nor Henry was the agent of Wiles in the sale to Daugherty, and withdrew from their consideration all questions bearipg upon the issue of fraud, misrepresentations, and failure of consideration. Upon the answers of the jury to the other issues submitted the court rendered judgment against plaintiffs in error, which was affirmed by the Court of Civil Appeals. 156 S. W. 1089.

The main question for determination is whether or not the trial court erred in withdrawing the issue of agency from the jury.

In order to authorize the court to take a question of fact from the jury, the evidence must be of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Insurance Co. v. Kemendo, 94 Texas, 367, 61 S. W. 1102. Measured by this rule, we are of opinion, after a careful examination of the record, that there is evidence supporting the theory of plaintiffs in error that Bradford was the agent of Wiles in the sale of his interest in the furniture business to Daugherty. It is well settled that agency may be established by circumstances, such as the relation of the parties and their conduct with reference to the subject-matter of the alleged contract. Without undertaking to set out in detail the evidence touching this issue, it is disclosed by the record that at the time of the negotiations Wiles, Bradford, and Henry were partners. Bradford and Henry lived in San Antonio, Tex., and had complete control of the partnership business. Bradford was general manager, and was' recognized by Wiles as his agent in all things connected with the business. Neither Daugherty nor Hancock personally knew Wiles. Prior to the beginning of the negotiations of the purchase of the Wiles’ interest of Daugherty Bradford requested and received permission from Wiles to sell Wiles’ interest in the business to some person satisfactory to him, Bradford. After receiving this permission, Bradford offered to sell the Wiles’ interest to Daugherty, and communicated to Wiles the information that he had found a prospective purchaser in the person of Daugherty, who would pay $1,000 cash and execute notes due in one and two years for $1,275, with Hancock as surety. Wiles answered this communication, agreeing to the sale, provided Bradford and Henry would indorse the notes. Thereafter a deal was closed by which Daugherty acquired the Wiles’ interest on the terms stated.

True, both Wiles and Bradford deny Bradford’s agency in the transaction, but this is not conclusive. In many cases, agency arises, not from the use of express language, nor from the existence of a well-defined relation, but from the general conduct of the parties. If relations exist which constitute an agency, the agency exists, whether the parties so understand it or not. As a general rule, agency cannot be established by proof of the acts of the alleged agent, in the absence of evidence to show the principal’s knowledge of such acts or his assent to them, but where the acts are of such character as to justify a reasonable inference that the principal had knowledge of them, and would not have permitted them, if unauthorized, the acts themselves are competent to show agency. It is within the province of the court to determine whether under an ascertained state of facts an agency exists, but it is for the jury to determine the existence of facts sufficient to constitute agency. Bradstreet v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. There is evidence in the record that Bradford made fraudulent representations to Daugherty in the sale, which were relied upon by Daugherty; and we think this issue, together with the issue of Bradford’s agency, should have been submitted to the jury.

It is unnecessary to determine whether or not Hancock was released, by the extension of the time of payment of the Bradford and Henry notes, without his consent, as this issue will probably be more fully developed upon another trial.

We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should be reversed, and the cause remanded for another trial.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. The case is correctly remanded upon the ground stated by the Commission in its opinion.
      ^^>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: SADLER, J. PHILLIPS, O. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. WORD.
    (No. 22-2649.)
    (Commission of Appeals of Texas, Section B.
    Jan. 15, 1919.)
    1. Damages <&wkey;112--MEASURE — Destruction of Grass.
    In action for the negligent burning of grass in a pasture, a charge, permitting recovery for the cost of feed and expenses of caring for cattle, does not furnish a certain rule of damages, but the correct rule is to permit recovery for the value of the grass at the date of its destruction.
    2. Damages <&wkey;112 — Measure—Destruction of Grass.
    The market value of grass for the purpose for which it was used is the measure of damages for its negligent burning, but if there was no market value, then recovery should be for the reasonable value of the grass for the purpose for which it was being used or for which intended.
    3. Evidence <&wkey;113(ll) — Market Value of Grass — Rental for Pasture.
    The rent paid by plaintiff for pasture could not determine the market value of grass destroyed by fire, but. if there was no market value, the rent might be a circumstance to be considered in arriving at the value of the grass for the purpose for which it was intended.
    4. Appeal and Error <®=>1064(l)-dÜRRONEous Instruction — Reversible Error.
    In an action for negligent burning of grass in a pasture, erroneously instructing that plaintiff was entitled to recover the cost of feed for his cattle and the expense necessary in feeding them was reversible error.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by C. T. Word against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff was affirmed by Court of Civil Appeals (158 S. W. 561), and defendant brings error.
    Reversed and remanded for new trial.
    N. H. Lassiter, of Ft. Worth, and Gustavus & Jackson, of Amarillo, for plaintiff in error.
    W. Boyce, of Amarillo, for defendant in error.
   SADLER, J.

The plaintiffs in error call in question the correctness of the holding of the honorable Court of Civil Appeals in approving the measure of damages as submitted in the charge of the court. Word obtained judgment in the district court against the Chicago, Rock Island & Gulf Railway Company for the sum of $918, as damages resulting from the burning of grass on the 22d day of February, 1909, in the pasture leased by him. In addition to the other allegations in the petition, it was alleged that this particular pasture had been held in reserve for winter pasturage, and that 500 head of cattle were placed there a short time prior to the fire. It was charged that the grass was sufficient to carry the cattle through the winter without feed, and that on account of its destruction it became necessary to purchase cotton seed cake and to incur expenses in feeding and caring for the cattle.

On the measure of damages, the court charged the jury as follows:

“If, under the foregoing instructions, you find for the plaintiff, and you further find that as a proximate result of the burning of the grass in plaintiff’s pasture, it became and was reasonably necessary for him to furnish feed, and that he did furnish feed to the cattle owned by him in said pasture in order to avoid greater loss and damage thereto, and in order to winter them, then you -will fi,nd for the plaintiff as damages such sum of money as you believe from the evidence it was reasonably necessary for him to pay for, and did pay out for, feed for said cattle, with the reasonable and necessary expenses incurred by him in feeding and caring for said cattle in order to winter them, together with 6 per cent, interest thereon from the 22d day of February, 1909.”

The Court of Civil Appeals (158 S. W. 561) held that this charge correctly presented the measure of damages. It cited a number of authorities as sustaining its ruling. An examination of Railway Co. v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54, and the cases following in that connection cited by the court, disclose that those cases are with reference to the question of “proximate cause.” As we understand the present state of this record, no question is raised with reference to proximate cause, the sole question being as to the proper rule for the determination of the damage. The Court of Civil Appeals also refers in its opinion to that class of cases where the duty devolves upon one who has suffered injury to his property to exercise reasonable care to protect from further loss or to mitigate the damage. It is believed that this is not apropos in the case under consideration. The authorities presented by the Court of Civil Appeals relate to injury to personal property or to the person, and authorize recovery for the necessary expenses incurred in caring for the damaged property or for the person injured. In this case there is no question of expenses incurred in an effort to fight the fire or to prevent it from doing further damage. Plaintiff seeks to recover for the cost of feed and expenses incurred in caring for the cattle by reason of the destruction of the grass. There is no direct injury alleged as to the cattle themselves, further than the deprivation of one character of sustenance being utilized by plaintiff in caring for them.

In support of its holding that plaintiff is entitled to recover the money which he Was required to pay out in purchasing feed for the cattle in order to carry them through the winter and the expenses necessary in feeding them, the Court of Civil Appeals cites Buffalo B. S. C. Co. v. Milby, 63 Tex. 492, 51 Am. Rep. 668, Enlow v. Hawkins, 71 Kan. 633, 81 Pac. 189, and Hoge v. Norton, 22 Kan. 374. From an examination of these authorities, it is believed that they are not applicable in this character of action. In the Milby Case, supra, the defendant’s misconduct was the efficient cause producing the damage, and arose out of the breach of an implied contract and also willful tort. In that case, the damages were such as ought to have been foreseen as the probable consequence of the breach of the implied contract and the commission of the tort. In the En-low Case, the suit was based upon a willful tort, and in that case, the recovery by Hawkins was allowed on the ground that Enlow, under the facts in that ease, was charged with knowledge of the consequences resulting from the willful destruction of .the corn by him. The Hoge Case, cited in support of the Enlow Case, was a suit arising out of the willful tort. In the present case, plaintiffs’ cause of action arises, if at all, out of the negligence of the defendant and its failure to exercise the degree of care incumbent upon it to prevent the escape of fire from its engine. Plaintiffs’ cause of action here neither arises out of contract nor from willful tort, and the authorities relied upon by the Court of Civil Appeals are not applicable.

To sustain the rule announced by the Court of Civil Appeals would, in our opinion, cause uncertainty in the determination of recoverable damages in cases of this character. That rule is preferable which gives a certain and fixed method for measuring the damages resulting from the destruction of grass by negligent fires. The correct rule, in our opinion, is to permit recovery for the value of the grass destroyed at the date of its destruction. If there is a market value for the property, for the purposes for which it is used, then that should be the measure of recovery. However, if there is no market value, then the recovery should be for the reasonable value of the grass for the purposes for which it is being used or for which intended. • Any other rule would result in uncertainty. Texas Pacific Railway Co. v. Prude, 39 Tex. Civ. App. 144, 86 S. W. 1046, is in accord with our conclusion. In that case, the direct question was presented to the Court of Civil Appeals for the Fourth District, and, following Railway v. Wallace, 74 Tex. 581, 12 S. W. 227, and other cases cited, it was there announced that:

“The measure of damages for the destruction of grass is its reasonable market value at the time of its destruction. * * * If the grass had no market value, its value in view of the use to which it was to be put would be the test.”

Defendant urges .that the rental price paid by plaintiff should determine the market value of the grass destroyed. This position is not tenable. What plaintiff paid per acre as a rental may or may not have been the market value at the time of the rental contract. At the time of the fire the market value may have been more or less than the rental.

If, at the time of the fire, there were no market value for the grass destroyed, then the rental price might be a circumstance to be considered along with the other evideqee in arriving at the reasonable value of the grass for the purposes to which put or intended.

For the error in the court’s charge on the measure of damage, the judgments of the Court of Civil Appeals and of the district court should be reversed, and the cause remanded for a new trial.

PHILLIPS, O. J.

The judgment recom-

mended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. The case is correctly remanded upon the ground stated by the Commission in its opinion.
      (&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MONTGOMERY, P. J. PHILLIPS, C. J.

text:
    WEISNER et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 33-2679.)
    (Commission of Appeals of Texas, Section B.
    Jan. 15, 1919.)
    1. Appeal and Error <§=>1066 — Submitting Issues Not Raised — Reversible Error.
    , Giving an erroneous instruction on contributory negligence not raised by the pleadings or the evidence was reversible error.
    2. Trial <§=>139(1), 140(1) — Weight op Testimony— Credibility op Witnesses — Question for Jury.
    The jury are the judges of the credibility of the witnesses and weight to be given the testimony.
    3. Appeal and Error <§=>930(2) — Obedience to Charge — Presumption.
    The court on appeal must presume that the jury in determining the facts and reaching a verdict gave proper attention to the charge.
    4. Appeal and Error <§=>1170(1) — Review— Province of Supreme Court.
    Supreme Court Rule 62A (149 S. W. x) was not intended to deprive the Supreme Court of the power to determine for itself whether any erroneous action of the trial court was of such character as amounted “to such a denial of the rights of the plaintiffs as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.”
    5. Appeal and Error <§=>1064(1) —■ Erroneous Instruction — Prejudicial Error.
    Where there is a sharp conflict in the testimony as to liability, the giving of a charge which imposes upon plaintiff a greater burden than is required by law is calculated to prejudice plaintiff and cause the jury to render an improper verdict.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by Tom Weisner and others against the Missouri, Kansas & Texas Railway Company of Texas; Judgment for defendant was affirmed by the Court of Civil Appeals (164 S. W. 405), and plaintiffs bring error.
    Reversed and remanded for new trial.
    Y. D. Harrison and Beard & Davidson, all of Marshall, for plaintiffs in error.
    L. S. Schluter, of Jefferson, for defendant in error.
   MONTGOMERY, P. J.

This suit was brought by Tom Weisner, the surviving husband, and the surviving children, of Roxan-na Weisner, to recover of the Missouri, Kansas & Texas Railway Company of Texas damages alleged to have resulted by reáson of the death of Roxanna Weisner. Plaintiffs allege that the death of Roxanna Weis-ner was caused by the negligence of the defendant company.

The opinion of the Court of Civil Appeals, 164 S. W. 405, contains a full statement of the pleadings and the evidence.

It appears that Roxanna Weisner was a passenger, and it was alleged by the plaintiffs that she was negligently injured by reason of a sudden and violent movement of the train as she was in the act of getting off the train at her destination. It is further alleged that said injuries resulted in her death. There was testimony, which if believed by the jury, was sufficient to authorize findings that the railway company was negligent as alleged in plaintiffs’ petition, that such negligence was the cause of the injury of Roxanna Weisner, and that such injuries resulted in her death. On the other hand, the testimony offered by the railway company, if accepted, showed that there was no sudden movement of the train, that Roxanna Weisner was not injured while a passenger, and. that her death was the result of disease.

It is not necessary to notice the pleadings further than to state that the petition was sufficient and that the defendant pleaded only a general denial.

In this state of case, the court, after stating the substance of thé pleadings, charged the jury, among other things, as follows:

“The burden of proof is upon the plaintiffs to show by preponderance of the evidence their right to recover.
“In the course of these instructions, the terms ‘negligence,’ ‘very high degree of care,’ ‘ordinary care,’ ‘proximate cause,’ ‘proximate result,’ will be made use of, and they are defined as follows.”

Here follows the usual definition of each of the terms referred to and a correct statement of the duties of a carrier to a passenger. Following this, the charge of the court continues:

“It is the duty of a person while a passenger on the train of a common carrier of passengers, in traveling thereon or alighting therefrom, to exercise that degree,of care that a very cautious and prudent person would exercise.
“You are instructed that the defendant railway company was not an insurer of the safety of plaintiff’s wife while a passenger on its train, and it was her duty while traveling on the train, or in alighting therefrom, to use that degree of care to avoid injury to herself that a very cautious and prudent person would exercise under the same circumstances, and that a failure to use such care would be negligence on her part and, if such negligence on her part, if any, 'caused or contributed to cause any injury, she may have received, if any, then plaintiff cannot recover.”

After the above charge, the court, by a proper charge, defines the duties of the railway company to a passenger and applies the same to the facts of the case, telling the jury in effect that if the railway company failed to use that high degree of care required of it, and if, as a result of such a failure, the plaintiff’s wife was injured, then judgment should be for the plaintiff.

The Court of Civil Appeals very properly held that the charge above quoted, defining the duties of a passenger, was improper and ought not to have been given in this case, because it required of the passenger a higher degree of care than is authorized by law, and further held there was neither pleading nor evidence raising the issue in this case.

Notwithstanding this holding by the Court of Civil Appeals, the court affirmed the judgment of the lower court, denying the plaintiff any recovery on the ground that the giving of said charge was harmless error.

The only question which we have for determination is whether the giving of the charge referred to, under the facts of this case, is such error as requires a reversal of the judgment.

. The plaintiff’s evidence, if true, made a case against the railway company, which would authorize a finding of negligence, that plaintiff’s wife was injured by reason of such negligence, and that such injury resulted in her death. On the other .hand, the testimony of the witnesses for the railway company, if given credence, precluded any recovery, because the testimony showed that the railroad company was not guilty of any negligence, that Roxanna Weisner was not injured while a passenger, and that her death was due to disease.

This was a jury trial, and, under the law, ■ the jury were the judges of the credibility of the witnesses and the weight to be given the testimony. The jury are required, both by their oath and the charge of the court, to accept the law as given in charge by the court and be governed thereby. Theoretically at least, they are governed and controlled by the instructions given. We must therefore presume that in this case, as in all others, the jury, in determining the facts and reaching a verdict, gave proper attention to the charge.

The charge of the court in this case told the jury that the burden of proof was on the plaintiffs to make out their case by a preponderance of the evidence. They were then told that the railway company was not an insurer of the safety of plaintiff’s wife while a passenger, and that it was her duty to use a very high degree of care to avoid injury, and that a failure to do so would be negligence, which would preclude a recovery by the plaintiff.

We think, taking the charge as a whole, that the effect of the charge was, and that the jury in all probability understood it, to place the burden of proof upon the plaintiffs, not only to show negligence on the part of the railway company, but to show that the plaintiff’s wife was in the exercise of that high degree of care for her own safety which a very prudent person would exercise under the same circumstances. It may be that the jury based its verdict for the defendant upon the failure upon the part of the plaintiffs to prove that Roxanna Weis-ner exercised .the proper degree of care for her own safety. There being no pleading raising the issue of contributory negligence, such issue should not have been referred to in the court’s charge. There being no evidence upon the issue, the charge was also objectionable and probably prejudicial, in that the jury may have, from the giving of the charge, inferred that in the opinion of the court there was evidence of negligence on the part of the passenger.

We think that the error of the court, here shown, should not be held harmless, as in order to do so we must assume either that the jury did not believe the testimony of the plaintiff’s witnesses or ignored the charge of the court. We prefer to assume that the jurors, in reaching a verdict, were governed by the instructions given. We think that the giving of the charge above indicated was such error as requires a reversal of the judgment.

In passing upon this question, we have not failed to bear in mind Rule 62A (149 S. W. x) prescribed by the Supreme Court for the government of the Courts .of Civil Appeals. Before the adoption of that rule, it was always held in this state that the giving of a charge upon an issue not raised by the evidence was reversible error unless it clearly appeared that the jury were not misled thereby. T. & P. Ry. Co. v. McCoy, 90 Tex. 264, 38 S. W. 36.

Rule 62A provides:

“That no judgment shall be reversed upon appeal and a new trial ordered on the ground that the trial court had committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.”

We do not think this rule was intended to deprive the Supreme Court of the power to determine for itself whether any erroneous action of the trial court was of such character as amounted “to such a denial of the rights of the plaintiffs as was reasonably calculated to cause and probably did cause the rendition of an improper judgment.”

In a Jury case where there is a sharp conflict in the testimony, as to liability, the giving of a charge which imposes upon the plaintiff a greater burden than is required by law is calculated to prejudice the plaintiffs and cause the jury to render an improper verdict. It is never possible in such case for any appellate court, where the case is submitted under a general charge, to say upon what ground the jury acted.

In conclusion, our opinion is that the error in this case was of such a nature as requires that the judgment shall be reversed, and we recommend that the judgment of the district court and the Court of Civil Appeals be reversed and this case remanded for a new trial.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. The case is correctly remanded upon the ground stated by the Commission in its opinion.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes