text:
    SOVEREIGN CAMP OF WOODMEN OF THE WORLD v. McCULLOCH.
    (No. 7701.)
    (Court of Civil Appeals of Texas. Dallas.
    March 3, 1917.)
    1. Insurance <@=3817(3) — Mutual Benefit— Action — Burden oe Proof.
    In an action on a fraternal benefit certificate in which the defense was that the insured committed suicide which rendered the certificate void under its terms, the death of the insured being established, it devolved upon the defendant to show that the insured committed suicide.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1999.]
    2. .Trial <&wkey;139(l) — Question foe Jury — Evidence.
    Where there is slight testimony, it is the duty of the court to instruct a verdict if its probative force is so weak that it merely raises a suspicion of the existence of the fact sought to be established from which the jury could not reasonably infer the existence of the alleged fact, and there is no room for ordinary minds to differ as to the conclusion to he drawn from it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341.]
    3. Instjeance <&wkey;817(3) — Benefit Certificate — Presumptions—Suicide.
    In an action on a fraternal benefit certificate there is no presumption that insured committed suicide, but the presumption is that he did not.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1999.]
    4. Insurance <&wkey;819(4) — Benefit Insurance —Sufficiency of Evidence.
    In an action on a fraternal benefit certificate evidence held to sustain a jury finding that the insured did not commit suicide by drinking carbolic acid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2006.]
    Appeal' from District Court, Ellis County; F. L. Hawkins, Judge.
    Action by R. A. McCulloch, guardian of estate of W. G. McCulloch, a minor, against the Sovereign Camp of the Woodmen of 'the World. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Flippen, Gresham & Freeman and Walter G. Miller, both of Dallas,' and Will Hancock, of Waxahaehie, for appellant G. C. Groce, of Waxahaehie, and T. H. Collier, of Ennis, for appellee.
   RAINEY, C. J.

This suit was instituted by the appellee, R. A. McCulloch, guardian of the estate of W. G. McCulloch, a minor, by petition filed in the district court of Ellis county, Tex., on June 28, 1911, to recover the sum of $1,000 alleged to be due the minor beneficiary under a fraternal beneficiary certificate of life insurance issued by the appellant, -Sovereign Camp of the Woodmen of the World, upon the life of the minor beneficiary’s deceased uncle, W. A. McCul-loch. The defendant in the court below denied any liability by virtue of the beneficiary certificate, claiming that any and all rights under same had been forfeited by reason of the act of the' deceased insured, W. A. Mc-Culloch, in that he committed self-murder and died by his own hand and act by drinking carbolic acid or other poisonous potion and deadly drug with the purpose and intent of committing self-destruction, which act, by reason of the terms stipulated in the application of the insured, the constitution and by-laws of the order, and the certificate itself, voided the certificate and forfeited all rights and benefits of the beneficiary thereunder.

After hearing the testimony the case was submitted to the jury on the sole issue of fact:

“Did W. A. McCulloch commit self-murder, and die by his own hand and act, by drinking carbolic acid, or other poisonous, or deadly drug, with the purpose and intent of committing self-destruction ?”

This issue was found by the jury in the negative, and the court entered judgment for plaintiff, from which this appeal is prosecuted.

The first and seventh assignments of error raise the question of the sufficiency of the evidence to support the finding of the jury and judgment of the court, and that the court should have instructed a verdict for defendant.

The evidence shows that W. A. McCulloch, deceased, at the time of his death was a member of the Woodmen of the World, and held therein a certificate naming W. G. Mc-Culloch, a minor, beneficiary for whom his guardian sues. The certificate contains a provision as follows:

“I agree that in the event of my death by my own hand or act, whether I am at the time sane or insane, my beneficiary certificate in said order shall be null and void and of no effect, and all rights and benefits which may have accrued on account thereof shall be absolutely forfeited.”

In order to obtain the right to open and conclude in the introduction of evidence and in argument, the defendant below admitted plaintiff’s cause • of action except as it might be defeated by the special matters pleaded, and the cause was submitted to a jury upon the sole issue of fact:

“Did W. A. McCulloch commit self-murder, and die by his own hand and act, by drinking ■carbolic acid, or other poisonous potion, or deadly drug, with the purpose and intent of committing self-destruction?”

—which was found by the jury in the negative. The, death of W. A. McCulloch being established, it devolved upon appellant to show that the same was committed by his own hands with intent of committing self-destruction.

The evidence shows that W. A. McCulloch was a member of a railroad bridge gang that at the time of his death occupied some box cars on a siding of the Houston & Texas Central Railroad near Ft. Worth. On the day of his death he started to work, but left the work about 9 o’clock that morning without saying anything. About 2 o’clock p. m. he told the cook (Dan Walton) he wanted something to eat, but did not know what he wanted, and the cook made him a bowd of tomato soup, all of which he ate, saying it was the best Soup he ever ate. About 4 o’clock p. m. he asked the cook to get him some oysters. The cook got two dozen, some crackers, butter, onions, Irish potatoes, and sweet milk, and made him a stew, which he ate about 4:30 or 5:00 o’clock p< m. in the car. The cook saw him alive almost an hour after this. This, so far as the record shows, was the last time he was seen alive. About 9 o’clock that evening defendant’s witness Adecks returned to the car and found McCulloch sitting on the edge of his bed in his underclothes dead. There was vomit on the floor from the mouth of the deceased which smelled of carbolic acid, 'as did a cup on a stove about four feet from the deceased. This witness thought he was the first person who found McCulloch after his death. Either one or both of his hands were hanging down and the bed and its coverings were in order. His recollection was that the outside doors and windows of the car were closed, and he thought it was fairly cold weather. This witness, as well as witnesses Mabin, Vaughn, Casey, and Log-gins, all of whom were at the car that night, testify to a strong odor of carbolic acid in the car and in a cup that was on the stove. The Witness Mabin, who, as the coroner, was called and went to the car about 10 o’clock p. m., says he found the deceased sitting on the edge of his cot, with his head and body hanging over. He laid the body down, prized the mouth open with a spoon, and says the tongue and mouth were pretty badly burned on the inside, and there were burns on the outside of the mouth, all the witnesses thought, from carbolic acid. The witness said there was blisters down each side at the comers of his mouth. He knew there was on one side, and he was pretty sure 'there was on both. His examination was by the light of lanterns held by the roadmen. The witness was 66 years of age. The witness Loggins also testified to what he thought were carbolic acid burns in the mouth, on the lips, and about a quarter of an inch on the outside of the lips and in the comers, and he smelled carbolic acid in the car “awfully strong.” The witness Vaughn, who embalmed the body, stated that “there were carbolic acid stains on his lips.” He used regular embalming fluid. He didn’t know all of its elements, but knew that it contained formaldehyde and glycerine. A carbolic acid burn will at first make the mouth turn red, and after death the mouth will get dark. The witnesses Adecks and Casey, while both in the car at the time of Mabin’s examination, neither saw any carbolic acid bums on the body. Adecks says:

“The position in which I was standing did not permit me to see whether or not the mouth was burned.”

Casey said:

“I might have seen his mouth if I had tried very hard, but I didn’t make any effort. There was a dim light there.”

He thought there was a light in the car when he entered it. There was a common wall lamp in the car that night. He did not remember if the chimney was smoked. The witness Adecks further testified that a day or two after McCulloch’s death he and Dan Walton, the negro cook, found a bottle outside the car about 30 feet from the rear door. The label on this bottle had been scratched off, but enough of it remained to show it had contained carbolic acid, of which it smelled. This bottle was kept in the car for several days until R. H. McCulloch, brother of W. A. McCulloch, came and took it away. There was testimony from other sources tending to support the theory of suicide, but, as- the jury found against said theory, we will state the testimony adduced by appellee to refute appellant’s contention.

Dan Walton, cook, testified that, when he first saw McCulloch after his death, he was sitting up on the side of the bed, had one sock off, and had his thumb in the other sock as if pulling it off. They used old cross-ties for kindling wood. He did not know whether such wood ever had creosote on it or not, nor did he remember whether there was any kindling wood in the room in which McCul-loch died. Lumber treated with creosote has a strong odor. Witness and Robert McCul-loch, appellee, and brother of the deceased, the morning after his death, searched the car and the ground near it, looking for a bottle which had contained anything that might have caused deceased’s death, but found none after careful search. Mr. McCulloch found a bottle under the bed which contained medicine that witness had seen W. A. McCulloch use. This witness was told by Adecks that McCulloch was dead, and went to the car with him. He smelled an odor when he went into the car, but did not know what it was. There was a cup on the stove, and it had an odor, but he did not know what it was. If there was any liquid in the .cup, he did not see it. There was fluid on the floor which he thought had come from deceased’s mouth. He had seen creosoted timber used in the work of the gang, but did not know whether they were using it then or not. They used a coal stove, and old ties, etc., to start fires. He was present when Justice Mabin made an examination of the body. He did not see the inside of the mouth, but did see the outside, and lips, and there was nothing wrong with them so far as he could tell. They did not look like they were burned. On the day following McCulloch’s death Adecks and witness hunted all around the car for a bottle, but found none. A few days later Adecks showed him a bottle which he said he had found. The label was off this bottle, but it was empty and smelled like carbolic acid.

Dr. Hooper, after qualifying as. a physician, testified that he understood the medicinal properties of carbolic acid and its effects when it comes in contact with human flesh ; that it is manufactured from coal tar, creosote, and other substances. When applied to human tissue it colors the tissue a light gray, crisps it, and gives it the appearance of burnt leather. Carbolic acid is given in small quantities to prevent vomiting. If one should swallow half an ounce of carbolic acid, it would burn the mucous membrane or alimentary canal to a crisp, devitalize the tissue, destroy all normal functions of the stomach, and produce death. An overdose of carbolic acid would, he thought, produce nausea, but not vomiting. Apomorphine is the most powerful emetic known to the medical profession, and he had given it in double dozes to a patient who had taken carbolic acid without producing vomiting. The patient could not vomit because of the paralyzed condition of the stomach. On a dead person a carbolic acid burn will remain permanently because of the morbid condition of the flesh. Carbolic acid and creosote odor are similar to inexperienced persons. If creosote timber is deposited in a small room, there would be an odor of creosote which to some persons would be similar to the odor of carbolic acid. If carbolic acid should come in contact with the lips where death is produced, the appearance would be that of an acid burn, and would remain until the tissues were destroyed by decay, and would be discernible so long as any of the tissue remained. In his opinion, embalming would not destroy the odor of carbolic acid, because the formaldehyde solution would go into the arteries and cavities, and would not come in contact with the burned area; besides, the odor of carbolic acid can hardly be destroyed by formaldehyde. He had put just one drop of carbolic acid in an ounce of formaldehyde and let it set, well-corked, for six months and the odor of the acid was not destroyed. The body of a person killed by carbolic acid will emit an odor so long as the body remained. In his opinion, there was no difference in the odor of carbolic acid manufactured from creosote and crude creosote. Two or three drops of carbolic acid intermingled with water will produce a discernible odor in the room. Hei treated W. A. McCulloch for tonsilitis and malaria a few months prior to his death, and prescribed a gargle which contained about five drops of carbolic acid to a three-ounce mixture. There was not in this gargle sufficient carbolic acid to produce death. He had treated several persons who had swallowed carbolic acid, had examined the bodies of a few persons who had died from carbolic acid, and his answers were based on personal experience, knowledge, and medical work. He thought if there were carbolic acid burns on a face or lips they would remain, and necessarily be present longer than 12 to 24 hours, and be easily discerned under the glass of a coffin.

S. P. Spalding, an embalmer who had embalmed persons supposed to have been killed by carbolic acid, testified that carbolic acid burns usually leave a black place. It sears the flesh, and after some time it turns dark. He did not think embalming would remove such bums, if it had been any length of time. Possibly it might have been removed before it was there long enough to sear— to have gotten hard.

Dr. McCall, after qualifying as a physician, testified that when carbolic acid comes in contact with human flesh it turns the tissue white. He had seen several persons who died from carbolic acid when it was no trouble to see marks of burns about the mouth and lips, even without a close examination. The burn will remain until decomposition sets in. When carbolic acid comes in contact with tissues it has a paralyzing effect and destroys sensation. There is no circulation of blood through the burned portion of the flesh, and a man who took enough carbolic acid to produce death cannot vomit, because it would paralyze the nerves of the stomach. He'had not seen one vomit, and had had several cases; had been present when physicians had tried to make one who had taken carbolic acid vomit. They gave apomor-phine, the most powerful emetic, without results. Carbolic acid in small doses is good to prevent vomiting. He had seen persons die from the effects of carbolic acid, and all he had seen thus die endured great suffering and writhed in agony. He did not think a man who had taken carbolic acid would die sitting up, on account of the pain and agony that he would have undergone. If McCul-loch had taken carbolic acid he thought the odor would have remained about the body and the coffin for several days.

The first person to see the body of W. A. McCulloch except the justice of the peace, the railroad men, and the undertaker, was J. C. Harris, who had married his sister, and was then living in Et. Worth. He testified that some one had telephoned him that Mc-Culloch was dead and had taken carbolic acid; that he went to the undertakers about 1 o’clock that night, and found the body in a cooling room with nothing but a sheet spread over it; that electric lights were turned on so as to make it as bright as day, and he looked good for indications of carbolic acid, and found none; that there were no burns on him at all that he could see, and he examined closely. 1-Ie could not see anything on the mouth, lips, or corners of the mouth, and did not detect the odor of carbolic acid, though he put his nose down and smelled to see if he could smell it. This witness was 57 years old, his eyesight was good, but he had on his glasses when he looked at the body. He did not open the mouth, but kind of pulled the lips down, and they looked natural and did not look fiery red or white. He did not open his teeth and did not see his tongue.. He put his head down to the dead man’s face, he thought within an inch or half an inch or something like' that, to see if he could smell .carbolic acid. He did not believe that the man had taken carbolic acid, because his mother had died with heart failure, and the witness believed that Mc-Culloch had died the same way. The witness’ wife was the same way, had heart trouble, and came near dying several times. Her mother (McCulloch’s mother also) went upstairs before dinner and died suddenly.

R. A. McCulloch, appellee, and brother oi W. A. McCulloch, on the night of November 18, 1910, got a telegram from Mr. Casey that his brother was dead, and left on the next morning train for Ft. Worth to return with the remains. His train was late, and he did not get to Et. Worth in time to make the train bringing the remains. When he got to Et. Worth he went to the car where his brother had died, got the negro cook, and as soon as possible they got into the car. There was a wall lamp, or bracket lamp, hanging on the wall. The chimney was very badly smoked. There was some kindling right close to the stove. It was pine, and had been treated with creosote. He thought the kindling was mixed; some of it maybe did not have creosote, but some of it did. It looked like a little armful. He thought there was quite a similarity between the odor of wood treated with creosote and carbolic acid. He found a bottle under the head of the bed. It contained liquid. He had seen this bottle before at the H. & T. O. Hospital. This bottle had “H. & T. C. Hospital” and then “Mouth Wash” printed on it. He (W. A. McCulloch) got this from the nurse at the H, & T. C. Hospital. He later took it with him to Et. Worth. He had two bottles. They were, witness thought, the same or about the same in size and contained the same medicine— mouth wash, used for gargling the throat. Witness was present at his own house when W. A. McCulloch used this medicine while in bed in his room. Witness’ wife was also there. It produced an odor of carbolic acid. The bottle he found at Ft. Worth was hardly half full. He took it home with him and gave it to his wife, and subsequently gave it to Mr. Oren Carter, one of the witnesses in the case. Mr. Adeeks gave him another bottle after his brother’s death. It looked like the other bottle his brother had taken from his residence to Ft. Worth. He thought it was the same size as the other bottle. It was a larger size bottle than one Mr. Casey mentioned in his testimony. He was not sure what became of the bottle Mr. Adeeks turned over to him. His best recollection was that he had left it at his attorney’s office, and he had tried to find it and bring it to court, had looked everywhere, and really thought the bottle was at his home until he went to look for it. It had been nearly five years since Mr. Adeeks delivered that bottle to him. After his brother’s remains were brought home he looked at his face to find burns on it or on his lips, and later in the night made another examination. 1-Iis first examination was at night by a fairly good lamp, after that he noticed him several times the next morning before the funeral. There were not any burned spots or dis'colorations on his face. The room was fairly well lighted, having five windows. The day of the funeral was a sunshiny day. There was no odor of carbolic acid coming from the body or the coffin. The witness, in going to Ft. Worth, passed the train going to Ennis with the remains, and Mr. Casey, who was on that train, came across to his car and told him where the cars were. He went on up to make an investigation as to the cause of his brother’s death. The undertaker had phoned him that his brother had committed suicide by drinking carbolic acid, and he also read it in the papers. He went to investigate whether or not the report was true. He did not at that time know that his son was beneficiary of his brother’s policy, but thought so. He stayed at the car something like an hour, and came home via Dallas with another brother. The car had an odor in it the next morning. He did not know the difference between creosote and carbolic acid odor. The odor was not so strong, but there was an odor there that could be easily told. The negro cook got the porcelain cup and gave it to him. It had been thrown out west of the car SO or 40 feet. He took it home with him. He smelled it, and noticed an odor which he thought smelled like creosote, but he did not know the difference. His brother would weaken the mouth wash when he used it. It was at least two months from the time his brother suffered with tonsilitis at his house to the time of his death. He knew that his brother took those two bottles with him when he went back to Ft. Worth two months before he was found dead, but he never saw him with the bottles afterwards, though he was frequently at his house, and was therfe on Tuesday night before he died on Friday night. When Adeeks gave him the second bottle he told him that he had found it 2Q or SO feet west of the car. This was something like two or three weeks after his brother died. When he went to Ft. Worth that morning there was a fluid on the floor of the ear from which there was an odor, but he did not pay any attention to the odor, and did not see any oysters or substance in the fluid. There was a gauze on the face of the casket the first tim'e that night that he looked at his brother. There was a glass slipped over it. “It was pushed back when I saw him in the morning.” He did not prize open the mouth to examine his tongue or the back of his mouth, but “along in the night when I looked at him, his mouth had parted, and his teeth set ajar just a little bit, and his chin kind of dropped,” and at that time another brother, another gentleman, and himself went into the room, and “we looked at him,” and he did not see any burns on his lips. There was a lamp just opposite the coffin on a magazine stand, higher than the coffin, but there were no electric lights in the room.

The wife of R. A. McCulloch, and sister-in-law of deceased, testified that deceased was in the railroad hospital at Ennis, of which Dr. Hooper was surgeon in charge. Deceased was there four or five days taking medicine; was using a “mouth wash” and other things. This was about September 1st, before he died. When deceased left the hospital, lie took two bottles of the “mouth wash” with carbolic acid in it with him, and used it while he was at her house. When he left there for Ft. Worth, about October 1st, he took with him both bottles, one full and the other about half full, said bottles being in size three ounces. After deceased’s body was returned for burial both the bottles were brought, one by her husband and the other by one Adecks, which she recognized as the bottles taken away from her house by the deceased. She compared the bottles by putting them together. They were just alike. One had a label “Mouth Wash”, on it; the other did not. It had been scratched off, but by whom she did not know. When the body was returned for burial, having heard he had committed suicide from taking carbolic acid, she examined the face to see if there were any signs of burns on his mouth or face, but found none. The jaw was dropped down a little so the lower teeth and gums could be seen, and there were no burns that she could see at all. She knew the odor of carbolic acid, but did not detect any coming from the coffin. Several other witnesses, relatives of the deceased, testified about as Mrs. Mc-Culloch as to burns and odor of carbolic acid. Dr. W. T. McCall, who attended W. A. Mc-Culloch’s funeral and saw the body on that day, as he walked around the coffin the last time noticed pretty carefully through the covering — did not know whether it was a glass or gauze covering — to see if he could see any scars or marks or burns about the mouth or lips, but he did not see any. He looked as carefully as he could in passing slowly around, did not stop, but only viewed the body as he passed, and did not smell carbolic acid in or about the coffin. J. O. Carter, justice of the peace at Ennis, attended W. A. McCulloch’s funeral after hearing that he had taken carbolic acid, and looked as carefully as he could, under the circumstances, for burns and saw none. The body was in a casiret with either a glass or gauze over the face, but the face was fairly plain in that room. As a notary public, he took the deposition of Mrs. Bell Seymour and attached a bottle to her deposition and delivered it to the district clerk, according to his recollection. The bottle had some fluid in it at the time, but did not know whether it had carbolic acid in it or not, as he did not smell it. He had known W. A. McCulloch very well during his lifetime, and went to the home on Sunday morning. He got down as close as he could over the coffin to see whether or not he could see any evidence of a burn. It was a matter of curiosity on his part. Mrs. B. Gate-wood, Mrs. Eliza Carter, Mrs. R. G. Fort, all of whom attended the funeral of W. A. Mc-Culloch, testified to looking carefully at his face and mouth for evidence of carbolic acid burns, and that they saw none.

We have copied copiously from the statement of the evidence in appellee’s brief, which gives substantially the evidence adduced on the trial.

The question is whether or not the evidence adduced by appellee was of such probative force as to require the judge to submit the cause of death to the jury, or did it in legal contemplation fall short of “any evidence”? Where there is slight testimony it is the duty of the court to instruct a verdict, if its probative force be so weak as merely raises a surmise or suspicion of the existence of the fact sought to be established, from which the jury could not “reasonably infer the existence of the alleged fact,” and that there is no room for ordinary minds to differ as to the conclusion to be drawn from it. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

This is a different character of case, and we think the evidence such that reasonable minds might differ as to the probative force that should be given to the evidence adduced by appellee. It is true that there was evidence adduced by appellant, if not contradicted, that would have warranted an instruction for it, had there been no evidence for appellee. No witness saw deceased take carbolic acid. They saw him dead and the cause of death can only be determined by circumstances. There is no presumption of law that he committed suicide, but the presumption is that he did not. W. O. W. v. Valentine, 173 Ky. 182, 190 S. W. 713.

The testimony of some of the witnesses that carbolic acid when taken in the stomach would paralyze it so that vomiting was impossible, and that the odor of it would remain in the body until it was decomposed, and the other circumstances testified to. by appellee’s witnesses were such as to raise more than a- mere suspicion that death was not caused from carbolic acid required its submission to the jury. The jury having passed on the evidence, and there being sufficient to warrant their finding, we hold that there is no reversible error in the court’s ruling.

We have duly considered all of the assignments of error which relate to the admission of testimony, in which we find no reversible error, and the same are overruled.

The judgment is affirmed.
      <¡&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    FULLER et al. v. McHANEY, County Judge, et al.
    (No. 1718.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 26, 1917.
    Rehearing Denied Feb. 8, 1917.)
    Equity <&wkey;30 — Injunction <&wkey;80 — Jurisdiction — Political Question — Restraining Counting or Ballots.
    Canvassing returns and declaring result of election involve a political question not cognizable by a court of equity so that freeholders 'cannot enjoin counting ballots of election to determine whether stock should run at large.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 151.]
    Appeal from District Court, Gregg County; W. C. Burford, Judge.
    Injunction by J. J. Fuller and others against J. H. Mclianey, County Judge, and others. From a judgment for defendants, complainants appeal.
    Affirmed.
    F. J. McCord, of Longview, for appellants. F. B. Martin, of Longview, for appellees.
   WILLSON, C. J.

On the petition, filed in July, 1915, of one Hudson and 130 others, freeholders in a subdivision of Gregg county described therein by metes and bounds, including the incorporated city of Longview, which by its charter had the right to regulate the running at large of live stock within its limits, the commissioners’ court of that county at its December term, 1915, ordered an election to be held in said subdivision to determine whether horses, mules, jacks, jennets, and cattle should be permitted to run at large therein or not. This suit was by appellants against the county judge and county attorney- of said county to enjoin them from counting the votes (a majority of which, appellants concede, were against permitting such animals to run at large) and proclaiming the result of such election as provided by the statute. Article 7248, Vernon’s Statutes. The appeal is from a judgment: (1) Dissolving a temporary injunction theretofore granted as prayed for by appellants; (2) determining that appellants were not entitled to any relief, and that the election was “valid in all things, except as including the city of Long-view, to that extent is taken from the description, and not to be included in the description of such subdivision”; and (3) ordering the county judge to proceed to declare the result of the election as provided by law.

The contention on the part of appellants was and is that the commissioners’ court was without power to order the election at any other than its first regular term after the filing of the petition therefor, and that neither that court nor the district court had power to change the boundaries as set out in the petition for the election so as to exclude the incorporated city of Longview, and therefore that the action of 'the commissioner’s court in ordering the election at its December term, and the action of the district court in changing, as they construe its judgment, the boundaries of the subdivision, were void.

As the parties view it, the disposition made of the appeal should be made to turn on the answers to questions covering the contentions just stated, as is shown by an agreement forming a part of the record by which they submit only such questions for determination. But we are of opinion that those questions need not be and should not be determined, because without reference to the answer which should be made to them appellants were not entitled to and the trial court was without power to grant appellants the relief they sought. It is settled law in this state that canvassing the returns and declaring the result of an election “involve a political question not cognizable by a court of equity.” City of Dallas v. Railway Co., 105 Tex. 337, 148 S. W. 292; Robinson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1067; Robinson v. Wingate, 98 Tex. 267, 83 S. W. 182; League v. Brazoria Co., 187 S. W. 1012; Merrill v. Savage, 49 Tex. Civ. App. 292, 109 S. W. 408; Townsen v. Mersfelder, 49 Tex. Civ. App. 289, 109 S. W. 420.

In the ease first cited Chief Justice Phillips in an able and convincing opinion, said:

“As elections are essentially the exercise of political power, it cannot be doubted that all action properly _ related thereto and necessary to their completion is from the same source, and is but the expression of the same power. The canvassing the returns of an election is necessary to the determination of the result. It is an integral part of the election itself, without which the election is a vain proceeding; and as such inheres as a right sanctioned by the political power, as absolute'as the right of the electorate to vote or for the election to be held. When it is declared that, because of their relation to the political power of the government, elections are beyond the control of the judicial power, it is meant that the whole election, including every step and proceeding necessary to its completion, is exempt from judicial interference, and the canvassing of the returns of an election must therefore be held as within the rule and justly entitled to its protection. * * * The law does not assume that sworn officials will attempt the enforcement of an invalid law. Its presumption is to the contrary, and it therefore awaits such attempted or threatened enforcement before it moves at the instance of parties in interest. If this ordinance is a nullity, as is here contended by the defendant in error, the canvassing of the returns of this. election will not quicken it with life and virtue. At all events it is not a binding enactment until its enactment is completed, and until it is a binding enactment it retains its relationship to the political power, and is immune from the process of judicial authority.”

The judgment of the. court below will be so modified as to eliminate therefrom the part thereof adjudging the election in question to be valid and ordering the county judge to proceed to declare the result thereof, and as so modified will be affirmed.
      <K=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    MARKS v. WILLIAMS.
    (No. 7700.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1917.
    Rehearing Denied March 17, 1917.)
    Evidence @=>317(7) — Heabsay Evidence.
    Testimony by plaintiff and his wife as to receipt of money by defendant, based solely upon information received by them from a third party was inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1180.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by J. V. Williams against J. H. Marts. From judgment for plaintiff, defendant appeals.
    Affirmed on condition.
    J. J. Averitte, of Hillsboro, for appellant. Geo. W. Dupree, of Hillsboro, for appellee.
   RAINEY, C. J.

Williams and Marts, during the year 1914, cultivated a farm together. Williams boarded Marks most of the year for ?10 a month. At the end of the year there was due Williams, as he alleges, the sum of about $125, as follows: '$80 for board of Marts, one-half for tools, merchandise, etc., purchased and charged to Williams, $34.64, and for one-half cotton sold by Marks $11.82, making a total of $126.56, for which Williams sues. Marts pleaded general and special exceptions, general denial, and plea in abatement that suit was prematurely brought. A trial resulted in the overruling of the exceptions and plea in abatement, and judgment on special issues for Williams in the sum of $125!56, from which Marts appeals.

Several assignments of error are presented, but we find no reversible error, except in the third and fourth, which complain of the court’s action in not striking out the testimony of J. V. Williams and his wife, both of whom testified as to $11.82 received by Marts in collecting the proceeds of nine bales of cotton. Both testified, on direct examination that said sum was due and owing by Marks, but on cross-examination, they testified, in substance, that they did not see it sold, did not receive the proceeds of sale, but depended on figures made by one Carmichael, and had no other information for their, knowledge. After their testimony on cross-examination, Marks moved to strike out the testimony of each, as it was shown that they were testifying, not from their personal knowledge, but from what they learned from another. The court overruled said motion to strike out said evidence and permitted it to go to the jury. This ruling was clearly erroneous, and said testimony as to the $11.82 should have been excluded from the jury. As no other person testified on this point, there was no evidence supporting this item, and it should not have been found in favor of Williams, but if Williams will remit the $11.82 within ten days, the judgment will be reformed and affirmed, to bear 6 per cent, interest, but if not, the judgment will be reversed and cause remanded.


text:
    HARDIE v. DAN SONNENTHEIL CO.
    (No. 7682.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 3, 1917.
    Rehearing Denied March 10, 1917.)
    Brokers @=>106 — Action on Land Contract —Interest oe Broker.
    Where title to land remains in his principal, a broker whose commission is contingent on closing sale has not such an interest in the sale contract as entitles him to sue for its breach although the contract is made in the broker’s name.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 149-153; Contracts, Cent. Dig. § 1740.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by the Dan Sonnentheil Company against H. M. Hardie. From judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    W. P. Donaldson, of Dallas, for appellant. Etheridge, McCormick & Bromberg, of Dallas, for appellee.
   RAINEY, C. J.

Appellee sued appellant to recover the sum of $500 and interest as liquidated damages for the alleged breach of a contract for the sale of real estate in which appellee, through its agent, McDougal, claimed to be seller and appellant the purchaser. Appellant answered by demurrers and general denial and specially pleaded that ap-pellee had no title or interest in the property, but that the contract was for the benefit of one A. J. Brown, the owner; that appellee was only a broker, or selling agent; that Brown was to make the conveyance; and that there was no mutuality of contract, and denied appellee’s right to recover. Appellant further answered that, if appellee had any interest in the land, he had violated the contract in not furnishing an authentic abstract showing in him a good title; that the said $500 was a mere penalty’ and not enforceable, as there was no damage, said land not having decreased in value; and that he was not responsible for the appellee’s payment to Brown of the $250. The court Instructed a verdict for appellee, and judgment was entered accordingly for $557.50, from which this appeal is prosecuted.

The evidence shows that A. J. Brown owned the title to land, about which the contract of sala and this controversy arose. Appellee never owned the land nor any interest therein, but is a broker, and, with the object of securing a commission for selling the same for Brown, he approached appellant, with whom a contract of sale was entered into. This contract recites that H. A. McDougal is seller and appellant purchaser, and that “the payment of $500 upon the execution of the contract and $4,500 to be paid upon the execution and delivery of deed to the property, with the remainder of the purchase price, viz. $8,000 to be paid in notes.’’ On the same day a contract of sale was entered into, which shows on its face to be between A. J. Brown and H. A. McDougal, to convey said land. Both of said contracts contain the following provisions:

“(2) The seller is to furnish the purchaser an authentic abstract showing good record title in the seller to the property to be conveyed. Should said abstract not show good record title in the seller, he shall have a reasonable time (not to exceed 60 days) in which to make said title good. Should said seller not be able to make said title good within said time, then this contract to be void, and' the purchase money paid at the time of the execution of this contract to be returned to the purchaser.”
“(5) Should the purchaser fail or refuse to comply with the terms of this contract within 80 days from the delivery of abstract showing good record title to said property, then and in such event the cash payment acknowledged herein shall be forfeited to the seller as liquidated damages and in full thereon, and thereafter neither party shall have any action against the other for specific performance hereof.”

The contract between A. J. Brown and ap-pellee has this further provision: “Commission of $500 to be paid Dan Sonnentheil Company by seller when trade is closed.” McDougal was the agent of appellee and acting for it in the transactions.

On November 1, 1913, appellant drew his Check on a Dallas bank for $500 payable to the order of Dan Sonnentheil Company, and delivered it to Dan Sonnentheil and requested that it be not presented until the first of the year. It was held up, and when presented afterwards it was indorsed in red ink, “Payment stopped.” An abstract of title was given to appellant, but he did not make any objection to its not showing a good title. The abstract did not show any conveyance to ap-pellee or to McDougal, but did show title to A. J. Brown.

On the trial, at the conclusion of the testimony, appellant requested a peremptory charge to the jury “to return a verdict for the defendant Hardie,” which was refused, and instead thereof the court instructed a verdict for the appellee, Sonnentheil Company.

The controlling point in this case is whether or not appellee had such an interest in the contract that entitled him to sue and recover the forfeit of $500 for the breach of the contract.

We understand from the evidence in this case that the title to the land was in A. J. Brown, and that appellant contracted for purchase through Sonnentheil Company, who were acting merely as brokers for the sale thereof, for the purpose of receiving a commission from Brown, which commission was to be paid by Brown. The contract made between Brown and McDougal was evidently entered into for the purpose of better enabling the appellant to facilitate the sale to appellee. The said contract was not intended for appellee to become a real purchaser of the land, for said land was never conveyed to it, and no conveyance in fact made. Brown, if any one, was the only party entitled to the forfeit, and the appellee did not have such an interest as entitled it to sue to recover.

In the case of Tinsley v. Dowell, 87 Tex. 26, 26 S. W. 946, one Rogers and wife placed certain real estate in the hands of appellee Dowell for sale, agreeing to pay him, if sold, 2ya per cent, commission, and agreed that in addition thereto, if Dowell sold for a greater price than fixed by Rogers, he was to have the excess above the price fixed. Dowell contracted with Tinsley to sell for a greater sum than that fixed by Rogers and wife, but Tinsley breached his contract, and Dowell sued him for the commissions and for $15 per acre, the amount he would have received on the sale. Dowell won in the trial court, but on appeal the Supreme Court reversed and remanded the case, holding that Dowell had no such interest in the contract as entitled him to recover,

Sonnentheil Company had no such interest in this case, as it was not prepared to make Hardie a good title. We think the principle of the ease of Tinsley v. Dowell, supra, settles this ease against appellee, and, so believing, thisl case having been fully developed, it is reversed, and judgment here rendered for appellant.

Reversed and rendered.
      <@35>For other cases see same topic and KEY-NUMBER in all Key-Niimbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    DARNELL v. STATE.
    (No. 4369).
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge. J. E. Darnell was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of misdemeanor theft; his punishment being assessed at a fine of $1 and two days’ imprisonment in the county jail. The record is before us without a statement of facts or bill of exceptions. The complaint and information seem to be sufficient. As the record is presented, we are of opinion that the judgment ought to be affirmed; and it is accordingly so ordered.


text:
    Ex parte DOUGLASS.
    (No. 4405.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from District Court, Knox County: J. H. Milan, Judge. Habeas corpus proceedings on behalf of George Douglass to procure bail. Erom judgment denying bail, relator appeals.
    Relator directed to be discharged from custody upon giving bond.
    J. M. Hawkins, of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant, under habeas corpus proceedings, was denied bail under a charge of killing J. J. Mitchell. Upon trial the court denied bail, and appellant prosecutes this appeal. Without reviewing the facts or going into the details of the testimony, we are of opinion that the court was in error, and that the appellant was entitled to bail, and fix that amount at $7,500. Upon the giving of bond as required by law in said amount, relator will be discharged from custody.


text:
    Ex parte GUERRERO.
    (No. 4388.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1917.)
    Appeal from District Court, El Paso County; W. D. Howe, Judge. M. C. Guerrero was charged with murder, and applies for a writ of habeas corpus to reduce bail.
    Writ granted.
    Jackson, Isaacks & Lessing, of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Relator was arrested under a charge of murder, and had a trial under writ of habeas corpus for bail. Upon the hearing, the trial court fixed his bail at $7,500. This appeal is brought to obtain a reduction of that amount. We are of opinion, after’ reading the record, without stating the facts or commenting upon their sufficiency or cogency, that the court was in error, and the bond should be reduced; and it is the order of the court that he be permitted to give bond in the sum of $5,000. Upon the giving of this, under the terms of the law, relator will be discharged from custody.


author: HODGES, J.

text:
    BARRETT v. OGERLY.
    (No. 1714.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 11, 1917.)
    Appeal from Eannin County Court; S. E. Leslie, Judge. Action between W. H. Barrett and A. G. Ogerly. Erom an adverse judgment, the former appeals.
    Affirmed.
    J. W. Gross and Cunningham & McMahon, all of Bonham, for appellant. C. A. Wheeler and Thos. P. Steger, both of Bonham, for appellee.
   HODGES, J.

This is a suit for damages for the conversion of lumber. The court submitted special issues of fact to the jury, and upon the answers returned entered the proper judgment in favor of the appellee. There was sufficient evidence to support the findings made by the jury, and nothing is presented on this appeal which requires a reversal of the case. The judgment is therefore affirmed.


text:
    ECKELS v. TOLEDO SCALE CO.
    (No. 1742.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 15, 1917.)
    Appeal from Smith County Court; Jesse E. Odom, Judge. Action by Toledo Scale Company against Erank Eck-els and another. Judgment for plaintiff, and defendant Eckels appeals.
    Affirmed.
    J. A. Bulloch, of Tyler, for appellant. E. V. Hughes, Jr., and Hanson & Butler, all of Tyler, for appellee.'
   HODGES, J.

The appellee instituted this suit in the county court of Smith county, and recovered a judgment against Erank Eckels and L. E. Huey for the value of some personal property, which it is alleged was converted by Eckels and Huey. Eckels alone has appealed. We have examined the record, and find nothing to justify a reversal of the case; and the judgment is accordingly affirmed.


text:
    FORE v. BORDER QUEEN MILLING CO.
    (No. 1732.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1917.
    Rehearing Denied Feb. 15, 1917.)
    Appeal from Camp County Court; G. W. Keeling, Judge. Action by Edwin Fore against the Border Queen Milling Company, wherein defendant filed a cross-bill. Judgment against plaintiff, and for defendant on its cross-bill, and plaintiff appeals.
    Affirmed.
    Smith & Bryson, of Pitts-burg, for appellant. C. G. Engledow, of Pitts-burg, for appellee.
   WILLSON, C. J.

In his petition Fore, the plaintiff below, alleged that the milling company sold him certain flour and undertook to deliver same to him at times during the months of October and November, 1915, to be specified by him. He further alleged that the milling company failed to comply with its undertaking. His suit was to recover as damages he averred he suffered by such failure, the difference, alleged to be $842.40, between the contract price of the flour and its market value at the time and place it was to have been delivered to him. At the time he commenced the suit Fore caused writs of garnishment to be issued and served on certain railway companies, whereby he impounded in their hands two carloads of flour belonging to the milling company. The latter by a cross-action sought a recovery against Fore of damages it alleged it suffered because of the impounding of the flour. The appeal by Fore is from a judgment denying him a recovery of anything against the milling company and awarding it a recovery of $207.50 against him. This court has considered, in connection with the record, the assignments in Fore’s brief, and is of the opinion none of them presents a reason why the judgment should be reversed. But the court is of the opinion the judgment should be so reformed as to provide that it shall be without prejudice to Fore’s right, if any he has, to recover against the milling company the $936.72 which he alleged the milling company agreed to pay him on account of the car of flour it shipped to him at Omaha, and covered, he further alleged, by a. draft drawn by him on said milling company in favor of the Pittsburg National Bank. The judgment will be reformed accordingly, and, as so reformed, will be affirmed.


text:
    UNITED BROTHERS OF FRIENDSHIP AND SISTERS OF THE MYSTERIOUS TEN v. TYLER.
    (No. 1722.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 2, 1917.
    Rehearing Denied Feb. 15, 1917.)
    Appeal from District Court, Marion County; J. A. Ward, Judge. Suit by Harriet Tyler against the United Brothers of Friendship and Sisters of the Mysterious Ten. Judgment for plaintiff, and defendant appeals.
    Judgment reformed.
    Armistead & Benefield, of Jefferson, for appellant. W. L. Grogan, of Shreveport, La., and T. D. Rowell, of Jefferson, for appellee.
   HODGES, J.

The appellant is a mutual benefit association and furnishes insurance to its members. In 1903 it issued a policy of insurance for $300 upon the life of Fred Tyler, in which the appellee was named as the beneficiary. In 1913 policies which had theretofore been issued to members were surrendered under some kind of an agreement that other policies for $500 would be issued in their stead. Fred Tyler surrendered his policy in pursuance of that agreement, and a substituted policy was issued and transmitted to the subordinate lodge of which he was a member, but was never delivered to him. Fred Tyler died in June, 1914, and this suit is by his wife, Harriet Tyler, for the amount of the policy. The defense upon the trial below was that Fred Tyler had been suspended by the local lodge of which he was a member, and that he had made false and fraudulent representations as to his age at the time he procured the insurance. In a trial before the court without a jury a judgment was rendered in favor of the appellee for the full sum of $500 and the funeral benefits provided for in the policy. The record shows that in July, 1913, after the substituted policy had been issued, Fred Tyler called upon the local secretary and demanded it, but for some reason he was refused. About that time Tyler claimed that the lodge was due him a sum of money as sick benefits, and, upon the refusal of the lodge to pay it, he had instituted a suit for the recovery of the sum claimed. Charges had been preferred against him in the local lodge, in which he was accused of having wrongfully instituted a suit against the lodge and of violating. some other rules of the order. He was notified to appear and answer the charges some time in the month of August, 1913. He failed to appear at the time stated, and an order was entered suspending him from membership. The court found as a fact, and the finding is not assailed, that the order of suspension was void, for the reason that no such proceedings were authorized by the laws or constitution of the appellant order. It also appears from the findings of the court that all of the dues exacted from Tyler had been paid or tendered by him and his son up to and after this order of suspension, and that Tyler had not forfeited any of the benefits of his policy by reason of the nonpayment of dues. If these findings of fact be correct the trial court’s conclusions of law follow as a logical result. Supreme Council, etc., v. Gambati, 29 Tex. Civ. App. 80, 69 S. W. 114; 1 Bacon on Ben. Soc. 107. There is not sufficient evidence to enable us to say as a matter of law that Tyler had falsely misstated his age at the time he became a member of the order, or at the time this policy of insurance was applied for. The evidence tends to show, and the court so found, that when the original policy was issued no written or formal applications were required in which the ages of the members were given. Some time afterwards the ages were demanded, but what age Tyler sent in does not appear. We cannot say that the court’s conclusion of fact upon that issuo is not sustained by the evidence. The judgment, however, must be reformed. The policy issued to Tyler contains, among other things, stipulations which limit the amount of the insurance to $300 if the insured dies within 12 months after the issuance of the policy, and to $400 if he dies within 24 months. Tyler died within 24 months from the time the policy was issued and should have been delivered to him. The amount which the beneficiary is entitled to recover for insurance must therefore be limited to that sum, and the judgment will be reformed accordingly. The ■ costs of this appeal will be taxed against the appellee.


author: PHILLIPS, C. J.

text:
    W. A. MORGAN & BROS. et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 2463.)
    (Supreme Court of Texas.
    March 28, 1917.)
    1. Railroads <&wkey;466 — Operation—Setting .Pires — Contributory Negligence — Discovered Peril.
    The doctrine of discovered peril defeats contributory negligence on the part of the owner of goods-burned by a fire set by locomotive only when the danger arising therefrom is imminent, is actually discovered by the railroad, and could have been averted by it.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 1686.]
    2. Negligence <5&wkey;100 — Defenses—Contributory Negligence.
    Contributory negligence is never a defense to an intentional wrong.
    [Ed. Note. — Por other cases, see Negligence, Cent. Dig. § 86.]
    3. Railroads &wkey;459(2) — Operation — Setting Pires — Contributory Negligence-Discovered Peril.
    Where the owner of loose cotton had stored it on the compress platform next to the railway tracks, and it was burned by fire started bj^ sparks from a locomotive improperly equipped and negligently operated, the owner could not recover, though the engineer might have discovered the peril, since the owner as well as the railway employés must have known of the danger.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 1679, 1680.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by W. A. Morgan & Bros, and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment (146 S. W. 336), reversing judgment for plaintiffs, and they bring error.
    Affirmed.
    Brown & Lane, of La Grange, J. B. Robertson and N. A. Rector, both of Austin, and Wm. Thompson, of Dallas, for plaintiffs in error. Alex. S. Coke and A. H. McKnight, both of Dallas, and Lane, Wolters & Storey and Wm. A. Vinson, all of Houston, for defendant in error.
   PHILLIPS, C. J.

The suit was one for damages for the destruction of certain cotton belonging to the plaintiffs in error, Morgan & Bros., by fire charged to have been caused by sparks from an engine operated by the defendant in error.

This is the second appeal of the case. The first trial resulted favorably for the defendant. On the appeal, the Court of Civil Appeals for the First District, while disapproving the form of the special charge of the plaintiffs which requested its submission, held that the issue of discovered peril was presented. 50 Tex. Civ. App. 420, 110 S. W. 978. On the second trial, it was charged upon in evident obedience to this holding, being presented in three distinct parts of the general charge and once in a special charge requested by the plaintiffs. The defendant having been cast at that trial, on its appeal it was held by the Court of Civil Appeals for the Fourth District, following Martin v. Railway Company, 87 Tex. 117, 26 S. W. 1052, that the issue should not have been submitted. 146 S. W. 337.

We granted the plaintiffs’ petition for writ of error for the purpose of settling the conflict of decision.

It is unnecessary to enter upon an extended examination of the abstract question of whether the doctrine of discovered peril applies to the injury or destruction of inanimate property, to which an elaborate and able written argument by counsel for the plaintiffs in error is largely devoted. With us, the doctrine defeats contributory negligence on the part of the plaintiff only when the danger arising therefrom is imminent, is actually discovered by the defendant, and may be averted by the means at the latter’s command. Railway Company v. Breadow, 90 Tex. 26, 36 S. W. 410. When this is recalled, the rule of public policy which declines, under such circumstances, to legalize the destruction of human life, likewise makes 'culpable the similar destruction of property.

Contributory negligence is never a defense to an intentional wrong. When one knows that his act will inflict an injury because of a discovered and immediate danger produced by another’s negligence, which it is fully within his power to avert, his infliction of the injury, without effort to prevent it, has either all the character of an intentional wrong, or else is one of such recklessness as to amount to the same thing. In applying the principle which holds such a wrong-doer to account, there is no sound reason for making a distinction between injury to persons and injury to things. While the wrong differs in degree, an intentional destruction of property is in law no more to be countenanced than is an intentional destruction of life. It is in the nature of the wrong, not its extent thát the rule is grounded, as is true of every just principle of the law which grants redress for wrongful action as a means of enforcing consideration for the rights of others.

The leading case upon the subject, the source of the doctrine, concerned, not the loss of human life, but an injury to a donkey. Davies v. Mann, 10 M. & W. 545. It was recognized in McDonald v. Railroad Company, 86 Tex. 1, 22 S. W. 939, 40 Am. St. Rep. 803, as a correct decision. This court has never declared that the rule is limited simply to injuries to persons. It has, on the contrary, in proper cases applied it in no uncertain manner to injuries to property. Railway Company v. Hauks, 78 Tex. 300, 14 S. W. 691, 11 L. R. A. 383; Railway Company v. Tolbert, 100 Tex. 483, 101 S. W. 208.

While this is true, it has been distinctly ruled by this court that the doctrine has no application to a case like the present one,— not because the injury was to property, but because the facts do not bring it within the class to which the doctrine properly relates. Martin v. Railway Company, 87 Tex. 117, 26 S. W. 1052. There cotton, uncovered and exposed to engine sparks, was stored on a compress platform in proximity to the track of the railway company, in full view of the engineer operating the engine. It was ignited by sparks from the engine, due to its having a defective spark arrester and its reckless operation. The trial court charged the jury, in substance, that if those in charge of the cotton for the plaintiffs thus stored the cotton, and their leaving it so uncovered amounted to negligence, and was a proximate cause of its destruction, the plaintiffs could not recover, “no matter how negligent the defendant may have been.” The verdict was for the defendant. The judgment was reversed by the Court of Civil Appeals for the Fifth District for the reason, as is disclosed by the unpublished opinion of Justice Finley, that this charge ignored the doctrine of discovered peril. The case came before this court on certified questions. The following, among others, was a question submitted by the Court of Civil Appeals, obviously because of its view of the charge as related to this subject:

“If the railway company knew of the situation of the cotton, and by the exercise of ordinary care could have avoided setting fire to it and destroying it, would the fact that it was negligence on the part of the compress company to place the cotton in that position, uncovered, permit a recovery against the railway company?”

The question was answered by Chief Justice Stayton in this forcible manner:

“To hold that the knowledge of the railway company of the situation of the cotton would fix liability on it, if its employés failed to use ordinary care for its protection, although the compress company, the representative of plaintiffs, knew the same fact, and also failed to use ordinary care in view of the surroundings, would be, in effect, to hold that the railway company was under obligation to use greater care for protection of the cotton against fire than were its owners.”
“Such is not the law. The compress company probably thought the cotton safe at such a distance from the railway, even though uncovered; and if the railway company knew that such was its condition, might it not rely upon the judgment of those to whose care plaintiffs had entrusted itl If the railway company should have apprehended danger, and therefore have used greater care, what was the duty of the plaintiffs under the circumstances?”

In immediate connection, this was said:

“There is, however, a class of cases in which, although one person has been negligent, it becomes the duty of another to avoid inflicting injury upon him after discovering his danger, if this can bé done by the exercise of such care as is then practicable, and failure in such cases will fix liability. This class of cases embraces those in which ewposwe to danger is known and imminent.
“Such cases have been often considered by this court. Railway v. Sympkins, 54 Tex. 615 [38 Am. Rep. 632]; Railway v. Richards, 59 Tex. 377; Railway v. Evans, 71 Tex. 369 [9 S. W. 25, 1 L. R. A. 476]; Railway v. Weisen, 65 Tex. 443; Artusy v. Railway, 73 Tex. 195 [11 S. W. 177]; McDonald v. Railway [86 Tex. 1], 22 S. W. 944 [40 Am. St. Rep. 803J.
“The facts on which the questions certified are predicated do not, however, bring this case within that class of cases, and the ordinary rule in reference to the effect of contributory negligence must be applied.”

The engineer knew in that case of the possibility of sparks from the engine setting fire to the cotton. But it is ,also clear that he could not know and did not know that such would be the result. It was therefore held that the defendant could rely upon the care taken for the cotton’s safety by those in charge of it. It was a possible danger, of which the agents of the plaintiffs were equally aware; but it was not a danger known to be immediate. It was a passive danger, not an imminent one. It was for this reason, plainly, that it was emphasized by the court that the class of cases to which the doctrine of discovered peril relates are those in which exposure to danger is “known and imminent,” and held that the case before it was not within that class.

This view is forcibly stated by Chief Justice Key in his dissenting opinion in Furst-Edwards & Co. v. Railway Company (Civ. App.) 146 S. W. 1031, as follows:

“But, if the doctrine of discovered peril should be extended so as to include inanimate property, I do not believe the facts of this case disclose such known and imminent peril as would render that doctrine applicable. In most of the cases in which that doctrine has been announced, the injured party was upon the railroad track, and was injured by being struck by a passing engine. When a person is so situated, and it becomes apparent or reasonably probable to those who are operating the engine that he will not get off the track, then the danger becomes known and imminent, because it is absolutely certain that, if he remains on the track and the engine strikes him, he will be seriously injured. But there is no Such certainty that an engine running past a nearby platform upon which baled cotton is stored will set fire to the cotton, although sparks may escape from the engine; that result may or may not happen.”

The facts of the present ease are in no essential respect dissimilar from those of the Martin Case. Here, the cotton was stored upon a compress platform within six feet of a track of the railway company. It was uncompressed and uncovered. It was known by the plaintiffs’ agent in charge of the cotton that the engines of the railway company customarily did switching in the yards in proximity to the platform; that they used coal for fuel; and that there was danger to the cotton if sparks escaped from them. The engineer operating the particular engine charged with having emitted the sparks which it is claimed set the cotton afire knew of the same danger, but he could not have known it any better than did the agent in charge of the cotton. The danger to the cotton was the same as that to which any inflammable property is subject when voluntarily situated by its owner so as to be necessarily exposed to sparks from a passing engine. It was a possible danger, but not a danger of that immediate and impending character which in part supplies the reason for the rule of discovered peril. The case is in our opinion plainly controlled by the decision in Martin v. Railway Company, supra.

The other errors in the general charge pointed out in the opinion of the Court of Civil Appeals may not occur upon another trial. It is not necessary to discuss those questions.

The Court of Civil Appeals properly reversed the judgment of the trial court. Its action in reversing the judgment and remanding-the cause is affirmed.
      <g=x>For other oases see same topic and KEY-NUMBER in ail Key-Numhered Digests and Indexes


text:
    WAGGONER v. ROGERS.
    (No. 2466.)
    (Supreme Court of Texas.
    March 21, 1917.)
    Limitation of Actions <&wkey;39(l) — Applicability of Statute — “Action.”
    A motion to correct the minutes of a judgment in an action of trespass to try title by inserting the proper section number of the land, an erroneous number having been inserted, is not an “action” within the meaning of Rev. St. art. 5690, providing that every action other than for the recovery of realty for which no limitations are prescribed shall be brought within four years next after the right to bring the same shall have accrued, and hence is not barred by four years’ delay.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Action.]
    Error to Court of Civil Appeals, Second Supreme Judicial District.
    Trespass to try title by W. T. Waggoner against Mrs. C. E. Rogers. After judgment in his favor, plaintiff moved to correct the judgment. The judgment ordering correction was reversed and remanded by the Court of Civil Appeals (149 S. W. 561), and plaintiff brings error.
    Judgment of Court of Civil Appeals set aside and that of district court affirmed.
    James T. Montgomery, of Wichita Falls, and -Stephens & Miller, of Ft. Worth, for appellant. W. T. Perkins and M. M. Han-kins, both of Quanah, and Fred W. Householder, of New York City, for appellee.
   PHILLIPS, C. J.

W. T. Waggoner was the plaintiff in an action of trespass to try title against Mrs. C. E. Rogers in the District Court of Wichita County. The land sued for as described in his petition was “fractional section No. 2 by virtue of certificate 5196, granted to the Gulf, Colorado & Santa Fé Railway Company,” containing 300 acres of land situated partly in Wichita County and partly in Wilbarger County. Judgment for the land was rendered in Wag-goner’s favor on January 31, 1907, the entry upon the court’s docket being, “Judgment for plaintiff as prayed for.” The judgment as entered upon the minutes decreed the recovery for the plaintiff, and described the land as in the petition, except the section number was given as “92” instead of “2.”

On May 26, 1911, Waggoner filed his motion in the cáse for the proper correction of the judgment as recorded in the minutes, alleging that the mistake in the recital of the section number was made by the clerk in entering the judgment. The motion was resisted for Mrs. Rogers by her guardian, upon the ground that the proceeding amounted to an “action” within the meaning of the four years statute of limitation (Art. 5690), and was accordingly barred. The District Court granted the motion and corrected the judgment record. The Court of Civil Appeals for the Second District reversed the judgment, sustaining the contention as to limitation, its decision having been rendered before the decision by this court of Coleman v. Zapp, 105 Tex. 491, 151 S. W. 1040.

The question presented was determined in Coleman v. Zapp, and the case is therefore ruled by that decision. We there held that a proceeding which has for its purpose only the correction of the judgment record so as to make it speak the truth and accord with the judgment rendered, is not an “action” within the meaning of Article 5690 and is therefore not affected by the bar of limitation imposed by that statute. We make the following quotation from that opinion, where De Camp v. Bates, 37 S. W. 644, decided by the Court of Civil Appeals for the Fifth District and apparently the authority relied upon by the Court of Civil Appeals in the present case, was distinguished:

“It should also- be noted that this proceeding did not have for its purpose the correction or amendment of the judgment rendered by the court as distinguished from the entry of the judgment upon the minutes. It sought only to amend the entry, nunc pro tunc, so as to include that which was omitted and thereby afford a faithful record of the whole judgment. In other words, it did not seek the amendment or correction of a judicial mistake as distinguished from a clerical mistake or omission. It is clearly distinguishable, therefore, from the cases of De Camp v. Bates [Tex. Civ. App.] 37 S. W. 644, in which a writ of error was refused by this court and which is now invoked by the plaintiff in error, Missouri Pac. Ry. Co. v. Haynes, 82 Tex. 448 [18 S. W. 605], and others which involved the correction, not of the entry of a judgment, but what was charged to have been a mistake in its rendition. In De Camp v. Bateg the judgment as rendered was against a partnership. It was so entered without running also against the individual members of the partnership. Suit was filed to so correct it as to include a judgment against them individually. The trial court refused the relief, because, among other reasons, the evidence was not sufficient to show that the judgment as entered was not the judgment actually rendered. The case in effect was that as the judgment, not only as entered but as rendered, was not against the individual members of the partnership as it was claimed it should have been, the court was asked to correct the judgment so as to so render it. An amended rendition of the judgment was really the relief sought, which is distinctly different in its nature from an effort only to have accurately entered what had been correctly rendered.
“In Railway Co. v. Haynes, the trial judge, in his computation of the damages he intended to award the plaintiffs, omitted a certain amount through oversight, and accordingly rendered judgment for a mistaken amount. The mistake consisted in the rendition of the judgment ; it was a judicial mistake, not a clerical one, and was properly held as not subject to correction by the trial court on mere motion after adjournment of the term.
“These two cases well illustrate the distinction which lies clearly defined between a suit to correct a judgment because of a mistake of the court in its rendition, whereby an. improper judgment is rendered but its entry is in accordance with the rendition, and a proceeding to correct or supply the minutes of the court so as to have them truly recite the judgment actually rendered. To correct in the trial court, after adjournment of the term, a judgment as rendered, an independent action is necessary as its jurisdiction of the case is at an end. In the latter instance, the court may, at a subsequent term, of its own motion or upon the application of parties, order the proper entry because the inherent power that it possesses as a court over its own records, endures for the sake of their verity.”

The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is affirmed.
      tgn^B^or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GABB et al. v. BOSTON et al.
    (No. 2468.)
    (Supreme Court of Texas.
    March 21, 1917.)
    1. Hxjsband and Wife &wkey;>221 — Necessary Parties — Who are.
    _ A suit against a husband gives the court jurisdiction to declare fraudulent the 'deed under which he claims, and to determine that the community estate of the husband and wife had no interest in the land, even though the wife was not a party.
    _[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 707, 802-806, 968, 973, 976%.]
    2. Judgment <©=3693 — Conclusiveness—Persons Concluded.
    A suit was instituted against a husband to set aside on the ground of fraud a deed by virtue of which he claimed land. Before judgment was rendered, the wife secured a divorce, the decree in which recited that she abandoned all claim to the land. A lis pendens purchaser intervened in the suit against the husband, and judgment went for him. Held that, as the court had complete jurisdiction to declare that the community of the husband and wife, had no interest in the land, the wife could not thereafter assert an interest in the property on the ground that by obtaining a divorce prior to the judgment she was not bound thereby, particularly as against the lis pendens purchaser who intervened.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1216.] ’
    3. Parties <&wkey;40(3) — Intervention — Right to Intervene — Lis Pendens Purchaser.
    A lis pendens purchaser is entitled to intervene in a suit by his grantor to set aside a deed claimed to have been procured by the grantee’s fraud.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. § 63.]
    4. Parties 4&wkey;3S — Intervention—Defect of.
    Where the grantor suing to set aside a deed claimed to have been secured through the grantee’s fraud, sold the land, and the lis pendens purchaser intervened, the intervention merely added a party to the action, and did not change its character.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 57, 58.]
    Error to Court, of Civil Appeals, First Supreme Judicial District.
    Action by Mrs. L. B. Gabb and another against Monroe Boston and others. A judgment for defendants was affirmed by the Court of Civil Appeals (149 S. W. 569), and plaintiffs bring error.
    Affirmed.
    J. M. Gibson, R. H. Holland, and Jno. B. Warren, all of Houston, for plaintiffs in error. E. P. & Otis K. Hamblen, E. H. Bailey, W. W. Anderson, and Hardy & Roberts, all of Houston, for defendants in error.
   PHILLIPS, C. J.

The suit was one instituted by Mrs. L. B. Gabb against a number of defendants for the recovery of a half interest in a tract of land of 94% acres which she claimed was community property of herself and her former husband, C. J. Ochse. The defendants claimed title under one J. M. Cobb, in whose favor a judgment for the land had been previously decreed against Ochse in a suit to which Mrs. Gabb was not a party.

The question in the ease is whether this judgment is binding upon Mrs. Gabb.

Briefly recited, the facts are these: The land was originally owned by Thomas R. Farrell. In 1884, he made a deed conveying it to his minor son, B. F. Farrell, which, as he claimed, was not to take effect until his death. In some way, however, the deed was filed for record the day following its execution. Such title as the community estate of Ochse and Mrs. Gabb, then his wife, acquired to the land was in virtue of a deed from B. F. Farrell, conveying it to Ochse, dated September 18, 1900.

Mrs. Gabb filed a suit for divorce against Ochse, on December 24, 1900, alleging the land to be their community property and praying for its partition. She subsequently abandoned all claim to it. This was recited in the divorce decree, which was rendered in her favor on March 15, 1901.

Shortly after the institution of this divorce suit, that is on January 29, 1901, Thomas R. Farrell and B. F. Farrell filed suit for the land against Ochse, alleging that he had fraudulently obtained the deed from B. F. Farrell and praying for its cancellation; also, that the title to the land had never passed from Thomas R. Farrell and that this was known to Ochse when he obtained the deed from B. F. Farrell. Later, on June 11, ±9(31, Thomas R. Farrell, by an amended petition in the suit, made B. F. Farrell a party defendant, repeating the allegations of fraud on the part of Ochse in the procurement of the deed from B. F. Farrell, declaring that the deed from himself to B. F. Farrell was never delivered, and praying that both deeds be canceled. To this pleading, B. F. Farrell made no answer. Oclise answered generally in the suit, and by an affirmative plea alleged bis title to tbe land. Altbougb the pleadings of the parties were several times amended, the cause of action asserted against Ochse remained unchanged.

On May 28, 1902, B. P. Farrell conveyed the land to J. M. Cobb. On the following day, Cobb, by leave of the court, filed an intervention in the suit of the Farrells against Ochse, seeking the recovery of the land against all parties, setting up the conveyance of B. F. Farrell to himself. His petition likewise alleged that Ochse had fraudulently obtained the deed from B. F. Farrell, and sought its cancellation as a cloud upon his title.

Final judgment was rendered in the suit on June 3, 1902. The judgment decree recited the due appearance of all the parties; that Ochse through his attorneys announced that he did not care to defend the cause further; and that T. R. Farrell and B. F. Farrell by their attorney agreed that Cobb was entitled to the land. It canceled the deed from B. F. Farrell to Ochse and decreed the land to Cobb. Before filing his intervention, Cobb had paid Ochse $700.00 for his claim to the land and procured from him a quit claim deed.

The defendants purchased from Cobb upon the faith of the judgment rendered in the cause of Farrell v. Ochse, which decreed him the land. They had no notice that Cobb had purchased Ochse’s claim and obtained from him a quit claim deed. The abstract of title, examined by the attorneys for all the defendants except Mrs. Wilson, revealed the filing of the respective suits which have been referred to, the dates when filed, and the judgments therein respectively rendered.

At the time the divorce decree was rendered in her suit against Ochse, Mrs. Gabb knew that the suit of the Farrells against' Ochse, seeking the cancellation of the deed of B. F. Farrell to Ochse, had been brought and was then pending. Cobb knew of the Ochse divorce proceeding at the time he purchased the title of B. F. Farrell and intervened in the suit of Farrell v. Ochse.

In the bringing and prosecution of the suit against Ochse for the land, there was no intent to defraud Mrs. Gabb, nor was there any fraud perpetrated in the rendition of the judgment against him in Cobb’s favor.

The present suit was filed November 9,1907, more than six years after the plaintiff obtained her divorce from Ochse, and more than five years after the rendition of the judgment in the suit of Farrell v. Ochse.

Mrs. Gabb was not a necessary party to the suit of the Farrells against Ochse for the ■ recovery of the land. The suit against Ochse alone subjected the land to the power of the court to determine whether the community estate of himself and wife had any title to it, and, if not, to decree the title to its rightful owner. Jergens v. Schiele, 61 Tex. 255. The suit did not abate upon the dissolution of the marriage. Nor was the court’s jurisdiction in anywise impaired upon that account. The power of the court having been rightfully acquired, it endured for the final determination of the controversy. Invested with the authority, originally, to bind the interest of the wife, its judgment ,was necessarily conclusive against her in the absence of the practice of any fraud upon her rights. Jurisdiction over property lawfully obtained is not lost by a voluntary change of the owner’s status.

In Moore v. Moore, 73 Tex. 382, 11 S. W. 396, pending a suit for divorce between one Rice and his wife, Rice alone was sued in another court for a tract of land, property of the community, and judgment against him was rendered. After the rendition of the judgment, a divorce was granted the wife and partition of the community property ordered. The wife contended, as it is urged here, that the judgment against the husband for the land was not binding upon her because she was not a party to it. This court held that as there was no intent to defraud the wife in the suit against the husband, the judgment affecting the community land was binding upon her, although rendered .while the divorce action was pending. The holding was approved in Boyd v. Ghent, 93 Tex. 543, 57 S. W. 25. The only difference between that case and this one is that there ■the judgment against the husband for the land was rendered while the divorce action ivas pending, while here it was rendered after the divorce decree. But since the suit against the husband alone rightfully subjected the land to the jurisdiction of the court, this would not affect the application of the rule.

With us, the marital relation in respect to community property is frequently likened to an ordinary, partnership. Carter v. Conner, 60 Tex. 53. In a suit against a commercial partnership which pending the suit is dissolved by the death of one of the partners, the cause may properly proceed against the surviving partner and the judgment will be good against the partnership assets. In such a case the legal representatives of the deceased partner may be made parties, but the failure to include them in the suit does not invalidate the judgment as to partnership property. Blum v. Goldman, 66 Tex. 621, 1 S. W. 899.

If in such a partnership, dissolved by death pending ,the action, the surviving partner has the capacity to represent it to the extent that the judgment so rendered will bind the partnership property, upon principle it must be equally true that in an action affecting property of a community partnership, dissolved pending the suit by the act of one of the parties, a judgment rendered against the partner who had the capacity to represent the estate in the first instance, will, in the absence of any fraud upon the rights of the other partner, be conclusive as to the property involved.

After the rendition of the divorce decree the relation of Mrs. Gabb to the land then in controversy in the suit between the Farrells and her husband could not be superior to that of a lis pendens purchaser. She .was accordingly concluded by the judgment therein rendered upon the cause of action pending against her husband at the time she obtained her divorce. As the purchaser pending the action of B. P. Farrell’s claim to the land, Cobb was entitled to intervene in the suit of the Farrells against Ochse. Fleming v. Seeligson, 57 Tex. 524. The cause of action asserted by him against Ochse under his intervention was the same that the Farrells were urging when the divorce decree in Mrs. Gabb’s favor was rendered, namely, that he had obtained the deed from B. F. Farrell through fraud and thereunder acquired no title to the land. Cobb’s intervention did not change the cause of action. It simply made a new party to it. Morales v. Fisk, 66 Tex. 189, 18 S. W. 495. A conclusive test of the identity of causes of action raised by different pleading is whether a judgment under the original pleading would bar recovery under the other. With Cobb’s intervention seeking a cancellation of the same deed, upon the same ground, and under a right acquired from B. F. Farrell pending the suit, there can be no question but that a recovery by Farrell would have been a bar to Cobb’s action.

The defendants purchased in reliance upon the title decreed Cobb in the suit against Ochse without notice of anything that would adversely affect the title as thus decreed, and should be protected in it. Mrs. Gabb abandoned all claim to the land, as .was recited in the divorce decree. She knew of the pendency of the suit by the Farrells for the land. If, she had desired to re-assert a claim to the land, she should have done so in that suit following her divorce. Instead, she stood by and permitted the judgment in Cobb’s favor to be rendered. She ought not to be permitted to speculate upon the issue of that controversy and then assert her claim in a different action. She was concluded by the judgment rendered in Cobb’s favor against her former husband. The Court of Civil Appeals correctly determined the case. Its judgment is affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes