author: LANE, J.

text:
    HAWKS et al. v. LONGBOTHAM et al.
    (No. 7248.)
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1916.
    On Motion for Rehearing, Oct. 5, 1916.)
    1. Appeal and Error <@=3770(1) — Appellant’s Brief — Rules op Court — Examination op Record.
    Under rules 40 and 41 for the Courts of Civil Appeals (142 S. W. xiv), providing that whatever of the statements of appellant in his brief is not contested will be considered as acquiesced in, etc., where appellants alone filed briefs in the Court of Civil Appeals, such court is authorized to regard so much of appellants’ briefs as is prepared in conformity with such rules as a proper presentation of the case without examination of the record as contained in the transcript.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. <§=>770(1).]
    2. Appeal and Error <@=>742(1) — Assignments op Error — Improper Brieping.
    Assignments of error which were indefinite, uncertain, and multifarious, none of them being such propositions, within themselves, as could be considered as propositions of law, and which, when followed by any proposition, were followed by such a one as was not germane to the assignment, were improperly briefed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <@=>742(1).]
    3. Appeal and Error <@=499(4) — Bill op Exception — Refusal op Special Charge — Statute.
    A bill of exception, to the refusal of a special requested charge, cannot be .considered, where not affirmatively showing presentation to the court and opposing counsel within a reasonable time after the general ■ charge was given counsel for examination, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <@=>499(4).]
    4. Exemptions <@=44^-Designation — Effect.
    Where two mules were the property of an unmarried man at the time of levy thereon to satisfy judgment against him and his brother, and he claimed one of such mules as his exempt property, such mule was exempt, since the law exempts to every unmarried man one horse or mule, which, when levy is about to be made upon his. property, he may designate as exempt.
    [Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 51-55; Dec. Dig. <@=44.]
    On Motion for Rehearing.
    5. Appeal and Error <@=499(4) — Bills of Exception — Refusal of Special Charges— Sufficiency.
    Where bills of exception to the refusal of special charges recite that “at the proper time” such charges were presented to the trial judge, the recital is sufficient to show that such charges were presented to the trial court before the main charge was read to the jury, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <@=>499(4).]
    Appeal from District Court, Madison County ; S. W.' Dean, Judge.
    Suit by J. M. and V. P. Hawks against W. A. Berry and another, doing business under the firm name of Berry & Barrett, and J. T. Longbotham, sheriff of Madison county. From a judgment for defendants, plaintiffs appeal.
    Judgment affirmed in part, and reversed and rendered for V. P. Hawks in part.
    J. M. Brownlee, of Madisonville, for appellants.
   LANE, J.

This suit was brought by- plaintiffs J. M. and V. P. Hawks against W. A. Berry and H. H. Barrett, doing business under the firm name of Berry & Barrett, and J. T. Longbotham, sheriff of Madison county, to recover one brown mare mule, six years old, alleged to be the property of J. M. Hawks, and another brown mare mule, seven or eight years old, alleged to be the property of V. P. Hawks, and for damages for their unlawful detention. For a better understanding of the nature of the case presented by this appeal we make the following statement:

Op the 22d day of September, 1913, the said firm of Berry & Barrett negotiated a sale of the two mules sued for to plaintiff V. P. Hawks. The mules at that time were delivered to said V. P. Hawks in payment for which he delivered to Berry & Barrett a promissory note for the sum of $400, signed by said V. P. Hawks and by his brother and father, J. M. Hawks and L. T. Hawks, respectively. Said note was not i>aid at maturity, and judgment was taken thereon against V. P. Hawks and J. M. Hawks; execution was issued upon said judgment and placed in the hands of defendant, J. T. Long-botham, sheriff of Madison county, who by virtue thereof levied on the two mules in question as the property of plaintiff V. P. Hawks; V. P. Hawks, from whose possession the mules were taken, and at the time they were so taken, gave notice to the sheriff, Longbotham, that he claimed the brown mare mule, 7 or 8 years old, as his exempt property, and he also gave notice to said officer that the other mule was the exempt property of his brother, J. M. Hawks. Both V. P. and J. M. Hawks were single men at the time of the levy and were not the head of a family.

The cause was tried before a jury upon the following issues submitted to the jury by the court, to wit: First. Was the sale of the mules made by Berry & Barrett to V. P. Hawks, and did the title and ownership of the two mules pass to said V. P. Hawks by such sale; or was the sale made to V. P. Hawks and J. M. Hawks, or to V. P. Hawks acting for himself and his brother, J. M. Hawks? Second. If you find that the sale was made to V. P. Hawks for himself, then state whether either of the mules were exempt from exe-cutí on at the time of tie levy. Third. Did Berry & Barrett willfully, wantonly, maliciously, or with intent to harass and injure plaintiffs, cause said levy upon said mules to be made?

To these questions the jury answered: First. That the mules were sold to V. P. Hawks, and that the title thereto passed by said sale to said V. P. Hawks. Second. That neither mule was exempt at the time of the levy. Third. That Berry & Barrett did not cause the levy to be made either willfully, wantonly, or maliciously, or for the purpose of injuring or harassing the plaintiffs.

Upon the findings of the jury judgment was entered for defendants. From such judgment Y. P. Hawks and J. M. Hawks have appealed. Appellants only have filed briefs in this court. In such case, under rules 40 and 41 prescribed by the Supreme Court for the procedure of the Courts of Civil Appeals (142 S. W. xiv), this court is authorized to regard so much of appellants’ brief as is prepared in conformity to such rules as a proper presentation of the case, without examination of the record as contained in the transcript, and may found its decision thereon. It is provided by said rule 41 that whatever of the statements of the appellants in their brief is not contested will be considered as acquiesced in. We are therefore called upon in this case to pass upon the propositions properly submitted under the rules, from the statements made in appellants’ brief.

We overrule appellants’ first, second, third, fourth, and fifth assignments of error. All of them are indefinite, uncertain, and multifarious. None of them are such propositions within themselves as can be considered by this court as propositions of law, and where we find any of them followed by a proposition, such proposition is not germane to the assignment to which it was intended to relate. West Texas Supply Co. v. Dunivan, 182 S. W. 425. But we have examined said assignments and have concluded that if they had been properly briefed neither of them presents reversible error.

Appellants’ sixth, seventh, and eighth assignments insist that the court erred in refusing to give to the jury their special charges Nos. 1, 2, 3, and 4. We are referred to appellants’ bills of exceptions Nos. 1, 2, 3, and 4 in support of said assignments. We have examined each of said bills of exception, and in neither of them is it affirmatively shown that said charges were presented to the trial court, or to opposing counsel, before the main charge was read to the jury.

In the case of Case & Sons Cutlery Co. v. Folsom, 170 S. W. 1066, the Court of Civil Appeals at Dallas held that a bill of exception to the refusal of a special requested charge, indorsed by the signature of the trial judge under the word “refused,” could not be considered, because not affirmatively showing that it had been presented to the court, and to opposing counsel, within a reasonable time after the general charge was given to counsel for examination, as required by Acts 33d Legislature, now articles 1971 and 2061, Vernon’s Sayles’ Statutes of 1914. Most, if not all, of the Courts of Civil Appeals in this state, except this court, have declared the same rule. See Heath v. Huffhines (Ft. Worth court) 168 S. W. 974; St. Louis Southwestern Ry. Co. v. Wadsack (Texarkana court) 166 S. W. 42; Ins. Co. v. Rhoderick (Amarillo court) 164 S. W. 1067; G., T. & W. T. Ry. Co. v. Culver (Amarillo court) 168 S. W. 514; Horton v. Railway Co., 171 S. W. 1023; Beard v. Railway Co., 171 S. W. 553; Railway Co. v. Dickey, 171 S. W. 1097; Railway Co. v. Chumbley, 169 S. W. 1107; Railway Co. v. Becker & Cole, 171 S. W. 1024; Bennett v. Canal Co., 182 S. W. 713, and authorities cited. For the reasons already given said assignment should be overruled, but should we consider the same we would hold that the charge of the court was a sufficient presentation of the issues raised by the evidence, and that therefore the special charges were properly overruled.

We now come to the main issue presented by this appeal; that is, was the brown mare mule seven or eight years of age, the smaller and older of the two brown mare mules sold by Berry & Barrett to V. P. Hawks, exempt to him from forced sale for the payment of his debts?

The law exempts to every unmarried man one horse (or mule), and it has been uniformly held by our courts that- when a levy is about to be made upon the property of any debtor, such debtor may designate his exempt property from among his other property, if any, subject to levy and sale.

The undisputed evidence shows that Berry & Barrett sold the two brown mare mules in question, one about six years old and the other about seven or eight years old, to V. P. Hawks, and that in payment therefor V. P. Hawks delivered to Berry & Barrett a note for $400, signed by himself and by J. M. Hawks and L. T. Hawks. The undisputed evidence also shows that upon the trial of the cause the only claim of ownership to either of said mules for, or by, said J. M. Hawks was by virtue of the purchase made from Berry & Barrett; that there was no pretense that he became the owner of either of said mules after the date of said sale, but that by that transaction, and that alone, he became the owner of one of said mules. The jury found that the sale was made to V. P. Hawks, and that the title to both of said mules passed by said sale to V. P. Hawks, and as a consequence he was the owner thereof at the time of the levy. There was evidence to support such finding. The undisputed evidence shows that V. P. Hawks at the time of the levy, and at all times since, has designated and claimed the brown mare mule seven or eight years old the smallest of the two bought by him from Berry S; Barrett, and which had the swinney, as his exempt property. This mule is still unsold under said execution, and is still subject to his claim of exemption. If the two mules were the property of Y. P. Hawks at the time of the levy, as the jury found they were, upon sufficient evidence to sustain such finding, then it follows as a matter of law, that when V. P. Hawks claimed the brown mare mule seven or eight years old as his exempt property, such claim must be allowed, and that the finding of the jury that neither of the mules were exempt cannot be sustained.

We have reached the conclusion that so much of the judgment of the trial court as directed that the brown mare mule six years of age, the larger of the two purchased by V. P. Hawks from Berry & Barrett, be turned over to the sheriff, J. T. Longbotham, for sale under execution, should be and the same is here affirmed. We have also readied the conclusion that so much of said judgment as adjudged that the smallest of the two brown mare mules, described as seven or eight years of age, with the swinney, is subject to sale under the execution in the hands of said sheriff, is erroneous, and that the same should be reversed and judgment should be here rendered for V. P. Hawks for the last-described mule, and it is so ordered.

It is further' ordered that the judgment be affirmed in part, and reversed and rendered in part as above indicated.

Affirmed in part. Reversed and rendered in part.

On Motion for Rehearing.

In our original opinion filed in this court on the 21st day of June, 1916, we made the following statement:

“Appellants’ sixth, seventh, and eighth assignments insist that the court erred in refusing to give to the jury their special charges Nos. 1, 2, 3, and 4. We are referred to appellants’ bills of exceptions Nos. 1, 2, 3, and 4 in support of said assignments. We have examined each of said bills of exception, and in none of them is it affirmatively shown that said charges were presented to the trial court, or to opposing counsel, before the main charge was read to the jury.”

And we held that as said bills did not show that said special charges were presented to the trial judge and opposing counsel before the main charge was read to the jury, the assignments complaining of the refusal of the court to give such charges should not be considered.

Appellant J. M. Hawks has filed his motion for rehearing complaining of such statement and holding, and in said motion directs our attention to the fact that said bills of exceptions, which were approved by the trial •judge, does recite tha,t “at the proper time” said special charges were presented to the trial judge. In said motion it is insisted that the statefnent in said bills that said charges were presented at the proper time was sufficient to show that said charges were presented to the court and opposing counsel before the main charge was read to the jury, and that therefore this court should have considered said assignments.

Since our attention has been called to the fact that the bills do recite that said charges were presented to the court “at the proper time,” we conclude that such recital is sufficient to show that said charges were presented to the trial court before the main charge was read to the jury, but it is nowhere shown that they were presented to opposing counsel, and to this extent said assignments do not meet the requirements of the law. We still think the charge given by the trial court was all that was required, and, as we find no material error in our original opinion, appellants’ motion is overruled.
      <S=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    GOODSON v. WESTERN UNION TELEGRAPH CO.
    (No. 69.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 6, 1916.
    Rehearing Denied Oet. 13, 1916.)
    1. Pleading <§=534(3) — General Demurrer.
    On general demurrer, every reasonable in-tendment arising from a pleading will be indulged in favor of its sufficiency.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. <¿=>34(3).]
    2. Telegraphs and Telephones <@=66(1) — « Persons Benefited by Sick Message — Interest — Presumptions.
    The addressee of a telegram is presumed to be the person for whose benefit the message is sent: and, where it relates to a sick person, the addressee is presumed to have a serious interest in the condition of such person.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 61; Dec. Dig. <§= 66(1).]
    3. Telegraphs and Telephones <@=37(9)— Delivery of Message — Delay—Notice of Relationship. 1
    A telegraph company was charged with notice of the relationship existing between the addressee and the parties named in a telegram, reading “Send Oscar at once to wait on his father. Lida sick.”
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 29, 32; Dec. Dig. <§=37 (9).]
    4. Telegraphs and Telephones <§=37(9)— Delivery' of Message — Delay—Notice of Contents.
    Such telegram was sufficient to put the telegraph company on notice that the father of the addressee and Oscar, brothers,_ was sick, or in such condition as to need waiting upon.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 29, 32; Dec. Dig. <§=37(9).]

      5. Telegraphs and Telephones <@=>60 — Delay in Delivery — Right of Addressee.
    Where a telegraph company negligently delayed delivery of a message, asking the addressee to send his brother to wait on their father, who was sick, and needed attention, the company was liable to the addressee, he having a cause of action, not only because he himself was deprived of opportunity to go to his father, but also because he was deprived of opportunity to send his brother.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 49, 50; Dec. Dig. <&wkey;>60.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by W. A. Goodson against the Western Union Telegraph Company. From a judgment of dismissal, plaintiff appeals.
    Reversed and remanded.
    E. B. Pickett, Jr., of Liberty, for appellant. F. J. & C. T. Duff, of Beaumont, for appellee.
   BROOKE, J.

Appellant sued to recover damages for the negligent failure of defendant to deliver to him a telegram sent by his sister, notifying him of the illness of his father. The trial court sustained a general demurrer, and ordered the cause dismissed. Appellant duly excepted to that judgment, and properly perfected his' appeal.

Omitting the formal parts of appellant’s petition, it is as follows:

' “That on said date last named plaintiff was residing about two miles from Dayton, Tex., and employed at a pumping station of the Moores-Bluff corporation, and his father was residing at Stoekdale, Tex., and had been ill for some time; and on said date L. D. Hopkins, plaintiff’s brother-in-law, and with whom his father was living, delivered, as agent for plaintiff, to the defendant at its office in Stoekdale, for transmission and delivery to plaintiff, a telegram in substance as follows:

“ ‘W. A. Goodson, Phone % Irrigating Pumping Station, Dayton, Texas.

“ ‘Send Oscar at once to wait on his father. Lida sick. [Signed] L. D. Hopkins.’

“That some days before said telegram was sent, as above alleged, plaintiff had informed his sister, Mrs. Lida Hopkins, wife of said L. D. Hopkins, that if his [plaintiff’s] father grew worse (plaintiff knowing he was sick at ,that time), or needed nursing and waiting upon, for her to wire plaintiff that such was the case, and he would at once come himself if possible, or send their' brother Oscar Goodson, who is the ‘Oscar’ named in the said message, and according to that understanding between plaintiff and his said sister, Mrs. Hopkins, her husband sent the said message to plaintiff, as alleged in last preceding paragraph.
“That the said L. D. Hopkins, at the time of delivering said telegram for transmission as aforesaid, paid the defendant the proper and customary charge of such transmission, and the same was correctly transmitted and received in defendant’s office by its agent at Dayton, Tex., about 10 o’clock in the forenoon of December 9, 1914; that said telegram could have been delivered to plaintiff within a few moments after it reached Dayton by phoning him the contents thereof, for at that time a telephone line extended from the town of Dayton to the said pumping station where plaintiff was employed, and where he was at work that day, and it had been the custom of defendant to make use of said telephone line for promptly communicating messages that were received for persons who were residing or working at the place, and in the vicinity of the place where plaintiff was then employed, and defendant’s agent at Dayton, Tex., who received said telegram well knew where plaintiff was and how said message could be promptly communicated to him, as they were well acquainted with him personally, as well as with his brother, Oscar, mentioned in said telegram.
“That had said telegram been promptly delivered to plaintiff, he would have at once sent his brother, Oscar Goodson, to the bedside of their father, and would have gone himself, so that his father could have received from them assistance and attention of which he was sorely in need; that plaintiff’s father was very sick at that time, and plaintiff’s sister, Mrs. Lida Hopkins, being also sick, his father was greatly in need of the help which said telegram requested, and that help plaintiff would have immediately supplied had said telegram been promptly delivered to him; but the telegram was never delivered to plaintiff, and his father died on the 11th day of December, A. D. 1914, at 9 o’clock a. m., and before plaintiff had received any word that the help and assistance called for in said telegram was needed.
“That by the use of reasonable and proper diligence, defendant could have delivered to plaintiff said telegram on the.9th day of December, A. D. 1914, in time for him and his brother, Oscar, to have reached the 'bedside of their father that same night; but by -reason of the negligence of the defendant, and its agents and servants, in failing to deliver said telegram with reasonable and proper diligence, plaintiff was prevented from sending his brother, Oscar Goodson, to wait upon his father during- his illness, and also was prevented from going himself to render the same service, and too, he was prevented from reaching the bedside of his father before his death, and from being with him and having his brother, Oscar, there to minister to his father’s urgent needs and wants during the last hours of life, and thus was prevented from providing, as it is the natural impulse of a child, though himself grown to mature manhood, to provide for a father during his illness and at his death, that tender nursing and affectionate attention to his comfort and care in every manner that is always proper and necessary in times of such suffering, sorrow, and distress, and that plaintiff’s father all the more needed on this occasion, because his daughter, Mrs. Hopkins, was also sick and unable to nurse and attend to him as his helpless condition required, and by reason and in consequence thereof, plaintiff has suffered severe disappointment and great grief and much mental pain and anguish, in all to his actual damage in the sum of $1,950.”

The appellant contends that the law presumes that the addressee in the message sent by appellant has a serious interest in the condition of the person named in the message as being sick; that it is the settled law of this state that the telegraph company is charged with notice of the relationship which actually exists between parties named in the message, whether this relationship be described by the telegram or message or not; that the telegraph company is charged with notice of the purpose for which the message was sent, and where the message relates to- serious sickness, the company must know that the addressee has a serious interest in the prompt delivery of the telegram, and that the telegraph company is charged with notice of any additional information concerning the matter, to which the telegram relates, which could have been obtained from the sender by inquiry therefor; that the addressee in the telegram, being presumed to have a serious interest in the message, and the presumption of law further being that he is the person for whose benefit the message was sent, has a chuse of action for any loss of injury occasioned to him by the negligence of the telegraph company in failing to promptly deliver the telegram; that the plaintiff’s cause of action is that defendant’s negligence deprived him of the satisfaction, comfort, and solace he naturally would have gained by being present with his father to nurse him himself during his last hours, and, further, that he was deprived of the satisfaction, comfort, and solace it would have afforded him to send his brother, Oscar, to be with their father, so that he might nurse him and attend to his wants during his last hours; that had the telegram been promptly delivered, he would have at once sent his brother, Oscar Goodson, to the bedside of their father, and would, also, have gone himself, so that his father could have received the assistance and attention which he needed, and that their father was, in fact, greatly in need of the help which said telegram requested, and which would have been immediately supplied, had said telegram been promptly delivered.

The appellant, in support of his propositions, has filed a very able brief and argument, contending that the telegraph company was charged with notice, by the telegram, that appellant was needed to wait on his father, and that on receipt of the message he would have gone to him; in addition, that the petition clearly charges that appellee’s negligence in failing to deliver the telegram prevented appellant from sending his brother, Oscar, to wait upon his father during his illness, and that he was prevented from having his brother, Oscar, there to minister to his father’s needs, during his last hours, and was thus deprived from providing for his father, during his last illness and at his death, that care and affectionate attention that is necessary in times of such suffering and sorrow and distress, and that plaintiff’s father all the more needed this attention on this occasion, because Mrs. Hopkins, the daughter, was also sick, and unable to nurse and attend him, and that by reason and in consequence of these, the plaintiff had suffered severe disappointment and great grief and much mental anguish. They argue with much plausibility and force that, without reference to whether appellant would have personally gone to his father, it would have been a source of solace and comfort to appellant could he have sent his brother, Oscar, to minister to their father, having alleged that he had, some days before the telegram was sent, informed Ms sister, Mrs. Hopkins, with whom their father was living, that if he grew worse and needed nursing and waiting upon, for Mrs. Hopkins to wire appellant that such' was the case, and that he would have at once come himself, if possible, or sent his brother, Oscar, and that, according to that understanding between appellant and Mrs, Hopkins, her husband sent appellant the message in question; that appellant, being greatly concerned, arranged in advance for providing his father with whatever help he might need, and that ap-pellee’s negligence deprived him of the opportunity of having his brother be with his father for that purpose, and that the telegraph company, having breached its contract with appellant, should not be allowed to escape upon the plea that the telegram was not notice that the appellant himself contemplated hurrying to his father, to be with him and nurse him at that time; that the telegram did advise the appellee that appellant was expecting to send his brother, Oscar, at once, and that the telegram specially requested that Oscar be so sént at once, to wait upon his father, and, the petition having alleged that appellant would have complied. with the request, that the negligence of the company in failing to deliver the telegram deprived him of the solace and satisfaction it would have afforded him to send his brother, Oscar, to minister to their father’s wants, and that he was vitally concerned in having his brother, Oscar, present for that purpose, especially in view of the fact that Mrs. Hopkins was herself sick, and unable to minister to her father.

The appellee contends: That the telegram addressed to W. A. Goodson, and reading, “Send Oscar to wait on his father. Uida sick,” does not charge the telegraph company that Goodson’s father was sick or dying, or that his presence was desired or needed, or that on receipt of the message he would go to his father, and if the message was not delivered he would suffer mental anguish at not being present during his father’s last illness, but that the message, to the contrary, indicates that his presence is not needed or desired. That the plaintiff, in this connection, undertakes to charge the telegraph company with notice: (a) That the father mentioned in the message was his father; (b) 'that the party mentioned as father was very sick and dying; (c) that the party mentioned as father was in need of attention by reason of sickness; (d) that if the telegram had been delivered, the instructions given in same to send Oscar would not have been caiTied out, but that the addressee would have gone, and the appellee says that, unless the wording of the message was sufficient to disclose to the telegraph company these facts, the general demurrer was properly sustained.

On general demurrer, every reasonable intendment arising from pleadings will be indulged in ' favor of its sufficiency. In the case of Western Union Telegraph Company v. Adams, 75 Tex. 532, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 876, suit was brought to recover damages for defendant’s delay in delivering the following message:

“To E. E. Adams, Athens.
“Clara, come quick. Rufe is dying.
“[Signed] O. M. Simmons.”

The appellant In that case took the position that the message did not disclose that the relationship of brother and sister existed between Rufe and Clara, and that the allegations in the petition do not disclose that appellant had notice of the relationship existing between them at the time it contracted to transmit said message, and, by reason of the want of notice of this fact, that the appellant could not be held liable for damages sued for in that cause. The court in passing upon said case, used the following language:

“The rule insisted upon by appellant is too restricted to be safely applied to communications sent by the electric telegraph. Plaintiff seeks to recover damages on account of mental pain suffered by his wife because of her inability to be with her brother when he was dying. The allegations and the evidence show that her failure to be with him was on account of her failure to receive information of his condition in time to reach him by the means of conveyance that were at her command. It is difficult to conceive of any form of expression that would have more accurately conveyed to her the in: formation intended than would that used in the telegram had it been delivered to her. If any diligence had been used for its delivery, when it reached its destination she would not only have known the condition of her brother that it was intended to communicate, but would have known it in ample time to have reached- him while living and conscious. The mental pain suffered by her on account of being deprived of this privilege is recognized by the law as a ground for_ the assessment of damages against defendant if it was induced by its negligence. The contention of defendant, in effect, is that it can only be held liable for such damages as may be supposed to have been in the contemplation of the parties if the telegram was delayed in its delivery, and that no damage can be held to have been in contemplation of the defendant not suggested by the language of the dispatch, and that all that could be gleaned from this dispatch by its agents was that some person at Waco wanted some person at Athens named Clara to come quickly to Waco, because some person named Rufe was dying. It seems to be well settled that telegraph companies are not charged with knowledge of the importance of delivering cipher dispatches, as in the nature of things they cannot know the contents of such telegrams, that mode of expression being adopted to keep them from knowing. The rule is a just one that preserves them from the responsibility that such knowledge would impose on them. There seems to be an effort to extend this rule beyond the occasion for it, and to practically malee all telegrams expressed in abbreviated language cipher dispatches. We think a distinction in this respect must be made between messages couched in terms intended to conceal their meaning and such as have no such purpose, but are intended to convey information by the use of no more words than are necessary when given their accustomed meaning. It is well known to the public, and cannot be unknown to telegraph companies, that the utmost brevity of expression is cultivated in correspondence by telegram. It is as well known that that mode of communication is chiefly resorted to in matters of importance, financially and socially, requiring great dispatch. When such communications r'elate to sickness (italics ours) and death, there accompanies them a common-sense suggestion that they are of importance, and that the persons addressed have' in them a serious interest. It would be an unreasonable rule, and one not comporting with the uses of the telegraph, to hold that the dispatcher will be released from diligence unless the relations of the parties concerned, as well as the nature of the dispatch, are disclosed. When the general nature (italics ours) of the communication is plainly disclosed by its terms, instead of requiring- the sender to communicate to the unwilling ears of the busy operator the relationship of the parties concerned, a more reasonable rule will be, when the receiver of the dispatch desires information about such matters, for him tQ obtain it from the sender, and if he does not do so, to charge his principal with the information that inquiries would have developed.”

In the case of Western Union Telegraph Company v. D. C. Fegles, reported in 75 Tex. p. 537, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 876, which is a suit based on failure to deliver a telegram at Ft. Worth, Tex., sent at Malvern, Ark., by a daughter-in-law, concerning her husband’s condition, to his mother, as follows:

“S. A. Feegles, Ft. Worth, Texas.
“Come to Malvern first train. Lee is very dangerously wounded.
“[Signed] Bertha Mahone.”

' It was contended, that there was nothing in the face of the message by which the telegraph company, in contracting to transmit and deliver the message, contemplated that the relation of mother and child existed between the parties, and that the mother’s feelings would be injured by a failure upon the part of the company to perform its contract, and that there was neither allegation nor proof that the telegraph company had notice of the relationship existing between Lee Mahone and S. A. Fegles at the time it contracted to transmit and deliver the message, and therefore that it could not be held that the 'company was liable for injury to the feelings done S. A. Fegles, as a mother, for her inability to be present at the burial of Lee Mahone, her child. The trial court in that case overruled defendant’s demurrer to the ■plaintiff’s petition, and on appeal it was held that there was no error committed in overruling the demurrer, citing Telegraph Company v. Edsall, 74 Tex. 329, 12 S. W. 41, 15 Am. St. Rep. 835, and the Adams Case, supra.

The case of Western Union Telegraph Company v. Carter, 85 Tex. 581, 22 S. W. 961, 34 Am. St. Rep. 826, is a case in which the message read as follows:

“W. S. Carter, Taylor, Texas.
“N. B. Gorshuseh dead. Answer.
“F. S. Faust.”

Gorshuseh seems to have been W. S. Carter’s wife’s father. The company had no notice, except the terms of the message. Carter sued for damages caused by mental anguish of his wife, on account of failure to get to her deceased parent. The case was tried before the judge, without a jury, in the lower court, and findings of fact filed, which were adopted by the Court of Civil Appeals, and Judge Brown of the Supreme Court, in passing upon this case, said:

“The telegraph company had offices and operators at Taylor and Smithville, about 50 miles apart. W. S. Carter lived at Taylor. His wife, M. E. Carter, was the daughter of N. B. Gors-huseh, who died near Smithville on the 4th day of September, 1899. About 6 o’clock on that day F. S. Faust delivered to the operator at Smithville” a message as mentioned. “This message was not delivered to Carter until 11:55 a. m. of the next day. * * * The operator at Smithville who received the message did not know the relationship between Carter and deceased, nor that Carter had a wife. About an hour after the message was transmitted he was informed that Carter was a son-in-law of deceased. The operator at Taylor did not know the facts until after the message was delivered.”
“The plaintiff in error presents this assignment * * * for our consideration: ‘The court erred in its conclusion of law that the defendant is chargeable with notice, or is affected with notice, by the terms of the message, of the relationship of either W. S. Carter, who is named, or M. E. Carter, who is not named in the message, to N. B. Gorshusch, or of any other purpose or object of said message than to advise W. S. Carter of Gorshusch’s death and to obtain an answer.’ As to M. E. Carter, the objection is well taken. She is neither mentioned in the message, nor was there any actual notice of her relationship to deceased” (citing Telegraph Co. v. Kirkpatrick, 76 Tex. 217, 13 S. W. 70, 18 Am. St. Rep. 37; Elliott v. Tel. Co., 75 Tex. 18, 12 S. W. 954, 16 Am. St. Rep. 872).
“As to W. S. Carter, the objections presented in this assignment are not well taken. The only ease decided by this court that will support the proposition made is that of Tel. Co. v. Brown, 71 Tex. 723, 10 S. W. 323, 2 L. R. A. 766, which has been practically overruled by all succeeding cases involving the same points. That no doubt may hereafter exist, we here expressly overrule that case in so far as it asserts the proposition that it is necessary that a message must disclose the relationship of the persons named in it. Since the case ‘of Tel. Co. v. Brown, the cases decided in this court have held contrary to the contention of the plaintiff in error” (citing the Adams and Fegles Cases, supra, and also Tel. Co. v. Moore, 76 Tex. 66, 12 S. W. 949, 18 Am. St. Rep. 25; Potts v. Tel. Co., 82 Tex. 545, 18 S. W. 604, and Tel. Co. v. Jones, 81 Tex. 271, 16 S. W. 1006, which messages conveyed information of serious illness of the persons named).

In the case of Telegraph Company v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843, and Telegraph Company v. Rosentreter, 80 Tex. 406, 16 S. W. 25, and Telegraph Company v. Nations, 82 Tex. 539, 18 S. W. 709, 27 Am. St. Rep. 914, which said cases convey information relating to the death of the parties named, the court, continuing, says:

“In the foregoing cases the same questions arose as are here presented, and this court held in each that the telegraph company was chargeable with notice of the relationship that existed between the parties named in the message and of the purposes for which the communication was sent. In the case of Telegraph Company v. Broesche, the name of the plaintiff did not appear connected with the message, but the operator who received it knew that it was sent for him, and the company was held bound upon such actual notice the same as if plaintiff had signed it.”

After commenting upon the Adams Case, supra, the court quotes from Justice Gaines in Tel. Co. v. Moore, supra, as follows:

“We are of opinion, attested by the rules announced in the cases cited, the message under consideration was sufficient to reasonably apprise the defendant of the consequences of its failure to deliver the message according to contract. The conclusion to be drawn from the language of the message is that a near relationship existed between the person mentioned in the message and the person to whom it was addressed, and that upon its receipt the latter would probably have set out at once to attend his relation in his extremity. Such being the case, it would be unreasonable to hold that the company, upon the receipt of the message, should not have contemplated the consequences which were likely to result to plaintiff from the failure to transmit it with diligence and dispatch.”

Continuing, the court says:

“In the case now before the court, the message was addressed to W. S. Garter, and notified the company that Gorshusch was dead; that Garter was, in all probability, a near relative with ‘a serious interest’ in the intelligence communicated, and in all probability upon the receipt of the message would set out at once to attend the funeral and to care for the remains. The probable purpose of adding the word ‘answer’ was to learn whether or not the message was delivered, and whether or not the party addressed would be able to arrive in time to attend the burial or to direct it. From the rules laid down in the foregoing decisions of this court, this plain and just rule may be deduced: The telegraph company is chargeable with notice of the relationship that exists, if any, between all parties named in the message, and with notice of such purposes as may be reasonably inferred from the language used, in connection Vith the subject-matter of the communication, taking into consideration the usual manner of expressing messages sent by this means.”

In case of Western Union Telegraph Company v. W. E. Coffin, Ooffin resided, at Tyler, about 500 yards from the public square. He had resided in that town about two years, and was well known to most of the business men of the town. Ooffin married the sister of R. Brackin, and thought as much of him as if he had been his brother. In March, 1892, the following message was delivered to the agent of the telegraph company at Lancaster, Tex., at the hour of 7 a. m.:

“W. E. Coffin, Tyler, Texas.
“R. Brackin will be buried tomorrow. Come at once. Answer. J. M. Knight.”

The message was promptly transmitted to Tyler by the telegraph company, and put in the hands of a messenger boy, to be delivered to Coffin. The boy took it to the hotel and inquired of the clerk if he knew Coffin, and was told that the clerk knew him, that he was a traveling man, and was not in the city, but that he stopped at that hotel when in the city, and would probably be in that night. The boy left the message with the clerk, who receipted for it. The man whom the clerk, knew was C. H. Coffin, but he did not, at the time, remember the difference in the initials. The message was never delivered to W. E. Coffin, who was at home that day, and if the message had been delivered, could and would have gone to the burial of his said brother-in-law. Coffin sued the telegraph company, and recovered judgment, which was affirmed by the Court of Civil Appeals. There were three assignments of error in the Supreme Court, which, in substance, raised one question, viz.: Did the facts proven entitle plaintiff to recover in this case? The court, in passing upon the case, used the following language:

“First. That the person for whose benefit a telegraphic message is sent, and who is named in the message, or of whose interest therein notice is given to the company at the time, may sue upon it in case of injury from the negligence of the telegraph company.
“Second. That the telegraph company _ is chargeable with notice of the relationship which actually exists between the parties named, whether disclosed by the terms of the message or not.
“Third. That the company receiving the message must take notice of the purposes for which the message was sent, as disclosed by the language ' of the message, and, in case of messages relating to serious sickness, or death, it must be held to know that the person for whose benefit it is sent has a serious interest in the prompt delivery of it.
“Fourth. From the fact of blood relationship, if it exists, a jury may, without other proof, infer that mental anguish was occasioned by the failure to be present at the bedside of the sick or at the funeral of the deceased relative.
“Fifth. That mental anguish, whether accompanied by injury to the person or not, is a proper element of actual damages, and, when caused by the negligence of the telegraph company, in failing to deliver a message, compensation therefor may be recovered by the injured party.”

From the principles announced in the above cases, we are led to the conclusion that the petition in the instant case alleged a cause of action against the telegraph company. In this case the message called on W. A. Goodson to send Oscar at once to wait on his father; that Lida was sick. It certainly plainly put the company upon notice that Oscar was to be sent to his father, and request was for appellant to send him. The addressee, under the authorities, is presumed to be the person for whose benefit the message is sent; and, where the message relates to a sick person, the further presumption is that the addressee is presumed to have a serious interest in the condition of that person, taken in connection with the fact that the company is charged with notice of the relationship which actually exists between the parties named in the message, whether such relationship be disclosed by the telegram or message, or not. The company had notice that appellant was concerned in sending his brother, Oscar, to wait upon their father, that their father needed such waiting upon; that their sister was sick and unable to render the service needed by their father; and that a failure to deliver the message would probably deprive .appellant of the opportunity of going himself and of sending his brother, Oscar, to , Stockdale for that purpose. Appellant was the person addressed, and, as said above, the law presumes that he was seriously concerned, at least in having Oscar to go to whit upon the person named in the message as his father, and which the company is charged with knowledge was his father, as well as the father of appellant. While the message does not expressly say that appellant’s father is sick, enough is stated to indicate that for some reason he was so helpless as to need waiting upon. If the company desired to know why he needed waiting upon, the duty rested, in this case, upon the company to make that inquiry, for we hold that enough was stated in the message to put the company upon inquiry. It has been well said that where the company has notice of the main facts, or is put upon notice of such facts by the message itself, then the company is chargeable with the additional notice of incidental matters that it might have ascertained by proper inquiry, and that a message on its face, indicating that it is important, without details, is sufficient to put upon the company the duty of making inquiry, if it desires additional information, which is related to the main facts recited in the message. The authorities cited we understand to hold the opinion above expressed.

Appellee insists that the case of Telegraph Company v. Kibble, 53 Tex. Civ. App. 222, 115 S. W. 643, is at variance with the rules above stated. In that case, the message read: “Come at once.” Among other things, in passing upon that case, thé Galveston court used the following language:

“Such duty is required [that is, on the proposition that the message required the company to inquire into the purpose of it] when the general nature of the message is plainly disclosed by its terms or otherwise, and some collateral fact, such as the relationship of the parties, without which the damage is plain would not likely result”

—and, continuing, the court says:

“In all the cases referred to in support of this proposition, the general nature of the message was disclosed either by the terms or by information given to the agent at' the time, as in the Cavin Case. We think that it is only in such cases that it is the duty of the agent to make inquiry, and that the telegraph company would be affected with notice of what would be learned by such inquiry.”

In the instant case, the message discloses with clearness its general nature, and we do not see any conflict between our holding and the Kibble Case.

From the authorities above referred to, and the views above expressed, we are of opinion that it was error in the court to sustain a general demurrer to plaintiff’s petition, and that the said petition sufficiently stated a cause of action, and we may say that, in our opinion, appellant, not only has a cause of action because he, himself, was deprived of going to his father’s bedside and ministering to his wants, but that, in addition, he has a cause of action by virtue of the fact that he- was deprived of the opportunity of sending his brother, Oscar, to wait upon their father when such nursing and attention was needed, to which the telegram called upon appellant to supply.

So believing, the cause is reversed and remanded for a new trial.

Reversed and remanded.
      <fc=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    EWING et al. v. LITZMANN et al.
    (No. 7232.)

    (Court of Civil Appeals of Texas. Galveston.
    June 29, 1916.
    On Motion for Rehearing, Oct. 17, 1916.)
    1. Master and Servant <&wkey;316(2) — Independent Contractors — Liability of Principal for Negligence.
    Where none of the provisions of a contract for the erection of a building gave the owner or his architects any right to control the contractor as to the methods of work, the power of direction given the architects relating only to the character of material and workmanship used, the contractors were “independent contractors,” and the owner was not liable for injuries caused by their negligence.
    [E'd. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1243; Dec. Dig. <&wkey;> 316(2).]
    2. Master and Servant <&wkey;319 — Independent Contractors — Liability of Principal for Negligence — Unlawful Act — Incident to Work.
    Where independent contractors for the erection of a building built a fence in the street to keep persons off the premises, their contract with the owner not requiring its construction, which was not necessarily incident to the construction of the building, the erection not being under agreement with or by authority of the owner, such owner was not liable for personal injuries caused by falling of the fence, on the ground that its building and maintenance was an incident to the work, and not authorized by law.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1259-1260; Dec. Dig. &wkey;319.]
    Appeal from District Court, Harris County; Win. Masterson, Judge.
    Suit by Paul Litzmann against the Brooks-Gordon Construction Company, a partnership composed of Charles W. Brooks and Phil M. Gordon, George H. Hermann, and the City of Houston, wherein, upon Hermann’s death, T. J. Ewing, Jr., and others, his executors, were made parties defendant, they bringing a cross-action against the Construction Company, and the members of the firm, and against R. E. Brooks and Mrs. Estelle B. Sharp, as sureties upon the Company’s bond. Suit was dismissed as to the City of Houston, and from a judgment for plaintiff against the Construction Company, and the members of the firm, and against defendant executors, with judgment in favor of the executors against their codefendants, and for R. E. Brooks and Mrs. Sharp that the defendant executors take nothing against them, the executors appeal.
    Judgment reversed, and judgment rendered that plaintiff take nothing as against defendant executors.
    J. W. Lockett, of Houston, for appellants. Woods & King, of Houston, for appellees.-

      Application tor writ of error pending in Supremo Court.

   PLEASANTS, C. J.

This suit was brought by appellee Paul Litzmann against the Brooks-Gordon Construction Company, a partnership composed of Charles W. Brooks and Phil M. Gordon, and George H. Hermann and the city of Houston, to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. The petition alleges, in substance, that plaintiff was injured by the fall of a fence which the Brooks-Gordon Company, who were engaged in erecting a building for the defendant Hermann, had constructed in a public street of the city of Houston. The acts of negligence charged in the petition are set out in appellants’ brief as follows:

“That Hermann and Brooks-Gordon Construction Company caused, authorized and permitted the fence to be constructed and maintained upon the street in violation of law, knowing that it was dangerous.
“That Brooks-Gordon Construction Company and Hermann constructed, maintained, authorized, and permitted the construction of the fence upon the street in an unsafe condition, and in such a manner as it was liable to fall, because it was constructed on an asphalt pavement, a hard substance, when there was no way by which the posts or support could be placed in the ground to render the same secure against falling, or being blown over, and that they knew that said fence so constructed was insecure and liable to fall or be blown over, and knew before it was constructed that it was dangerous to undertake to construct and maintain a fence of that height and character upon said paved highway.
“That said Hermann, when he authorized and permitted said fence to be constructed upon said paved street, knew that the same would be constructed on the asphalt pavement without being placed in or connected with the ground by posts which were necessary to securely and safely hold and maintain said fence and prevent from falling or being blown over, and he knew it was dangerous or liable to fall or be blown over, and that said Hermann and Brooks-Gordon Construction Company and the officers of the city knew, or by ordinary care would have known, that said fence, if constructed as authorized, would have obstructed and interfered with travel upon the street and the use of the same, and that injuries would likely result.
“That Hermann and Brooks-Gordon Construction Company and the officers of the city were negligent in that they constructed, permitted, and authorized said fence to be constructed and maintained upon said street in a negligent, careless, unsafe and dangerous manner, in that the fence was negligently constructed without sufficient supports, and that said Hermann and the Brooks-Gordon Construction Company caused, authorized and permitted the fence to be maintained upon said street in a dangerous and unsafe manner, in that they caused and permitted large quantities of sand, cement, and other materials of like nature to be piled against the said fence in such a manner as to render the same likely to fall, and that the injuries to plaintiff resulted from such negligence.”

Pending the trial in the court below the defendant Hermann died, and T. J. Ewing, Jr., J. J. Settegast, Jr., and John S. Stewart, independent executors of the will of the deceased, were made parties defendant.

The executors of Hermann answered by a general demurrer and special exceptions, which were overruled, and by general denial and pleas of contributory negligence on the part of the plaintiff but for which he would not have been injured, and alleged that the Brooks-Gordon Construction Company were independent contractors, with whom Her-mann made a contract on December 10, 1908, to furnish the labor and materials for and to construct a building on lots 9 and 10 in block 41, according to plans and specifications agreed upon, and that he had no control over the details, or otherwise, except to secure the results contracted for as to materials and workmanship, but that the contractors agreed to obtain the building permit and to comply with all building and municipal regulations and supervisions, and that it was contracted that the property should be in the exclusive control of the contractors until the building was completed and accepted, and that said Hermann should not have any control over the employes of the contractors, and that the contractors would fully protect Hermann against any liability for damages, and that, if the plaintiff was injured, his injuries occurred before the building was completed and accepted, and that said contractors were independent of Hermann as to when, where, and in what manner they should store and deposit their materials, and as to whether they should use any portion of either street, and the manner of using same, and as to whether or not they should construct any fence or wall on either street, and the manner of constructing or maintaining the same, and that said Herman" did not contract with them to construct the fence nor as to how nor where they should store their materials, that said Hermann did not construct the fence, nor deposit materials against it, nor authorize or permit the same, and did not have any control or supervision over the same, and it was done without any suggestion, permission, or interference from him, and that the city ordinance gave the contractors the right to use one-third of the width of Preston avenue, and that they made a lawful use thereof, and specially pleaded article 690 of the Revised Code of Ordinances of the City of Houston, which is set out in full in the answer, and prohibits certain street obstructions, and has added thereto a proviso “that this article shall not be so construed as to interfere with the construction of buildings and improvements, in which event one-third of the width of the street may be used for material, etc., by the contractor,” and further pleaded that, if there were negligent or wrongful acts or dangers, same were •not the acts of or caused by said Hermann, and could not have been prevented by him, and he in no wise caused or permitted the same, and is not responsible for the negligent acts, if any, of the contractors.

The answer also contained a cross-action against the Brooks-Gordon Construction Company and Charles W. Brooks and Phil M. Gordon, composing the firm, and also against R. E. Brooks and Mrs. Estelle B. Sharp, as sureties upon the contractors’ bond.

The defendants in the cross-action, Brooks and Sharp, answered by general and special exceptions, general denial, and special pleas, the nature of which it is unnecessary to set out.

A general demurrer presented by the city of. I-Iouston to plaintiff’s petition was sustained by the court, and the suit was dismissed as to said defendant.

. The trial then proceeded upon the issues joined by the other parties. Special issues between plaintiff and defendants were submitted to a jury, and upon return of the verdict judgment was rendered in favor of plaintiff against the Brooks-Gordon Construction Company and its individual members and against the defendant executors for the sum of $8,250, with judgment over in favor of the executors against their said codefend-ants. Judgment was also rendered in favor of R.. E. Brooks and Mrs. Sharp that the defendant executors take nothing against them. This appeal is prosecuted only by the defendant executors.

The special issues submitted to the jury and the findings of the jury thereon were as follows:

“(1) “Was or was not said fence constructed and maintained as an incident to the building being then and there erected for Geo. H. Hermann by Brooks-Gordon Construction Company for the purpose of protecting said building and the material then and there being used in the construction thereof?” To this issue the jury answered: “Yes.”
(2) “Did or did not Geo. H. Hermann, or his agent, E. S. Glover, know, or should they, or either of them, have known, through the exercise of ordinary care, as the term ‘ordinary care’ has been herein defined to you, of the condition and purpose of the fence and material shown by the evidence to have been piled against the same?” To this issue the jury answered: “Yes.”
(3) “Was or was not the fence in question negligently constructed and maintained, as the term ‘negligence’ has been hereinbefore defined to you?” To this issue the jury answered: “Yes.”
(4) “Was it or was it not negligence, as negligence has been hereinbefore defined to you, to pile sand and material against said fence in the quantity shown by the evidence to have been piled against same, considering the strength and construction of said fence?” To this issue the jury answered: “Yes.”
(5) “Would or would not a person of ordinary .prudence, or in the exercise of ordinary care for his own safety, as th’e term ‘ordinary care’ has been herein defined to you, have walked behind the fence in question, as did the plaintiff?” To this issue the jury answered: “Yes.”

The amount of damages sustained by plaintiff was found to be $8,250.

Appellants’ first assignment of error complains of the refusal of the court'to instruct the jury to return a verdict in their favor.

This assignment must be sustained because the evidence conclusively shows that the defendants Brooks-Gordon Construction Company were independent contractors, and the deceased, George H. Hermann, was in no way responsible for the negligent construction of the fence by the fall of which appellee was injured, nor for the negligent placing of materials by which the fall of the fence was precipitated. The contract between Hermann and the construction company was for the erection by said company of a three-story brick and concrete building upon lots 9 and 10 in block 41 in tbe city oí Houston. By tbe terms oí the contract tbe construction company .undertook and agreed to furnish all tbe material and. labor and to construct said building, in accordance with plans' and specifications attached to said contract, for the sum of $50,700, to be paid tbe company by Hermann. Tbe contract is lengthy, and it is unnecessary to set it out in full. Tbe following are tbe provisions of the contract which appellee contends show that the construction company was not an independent contractor, but the servant or agent of Her-mann in the construction of tbe building:

“(a) The contractors, under the direction and to the satisfaction of P. S. Glover & Son and S. A. Oliver, architects, acting for the purpose of this contract as agents of said owner, shall and •will furnish and provide all the materials and do and perform all the work mentioned in the specifications.
“(b) The contractors shall, within 24 hours after receiving written notice from the architects to that effect, proceed to remove from the ground or building all the materials condemned by the architects, whether worked or unworked, and to take down and discontinue all portions of the work which the architects shall condemn as unsound or improper, or not done in a workmanlike manner.
“(c) The architects shall be the exclusive judges of whether materials and work are sound and proper and according to the contract, and their decisions in these respects shall be binding on both parties.
“(d) Should the contractors at any time refuse or neglect, or fail to supply a sufficiency of properly skilled workmen, or proper materials, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, or fail to follow the instructions of the architects in any matter, on which the architects have the right to instruct, such refusal, neglect, or failure shall, by the architects, be called to the attention of the contractors or either of them, by written notice, and if the contractors for a period of three days fail to comply with such written notice, an,d still so refuse, neglect, or fail to comply with such written notice, then the architects shall certify such failure to the owner, and he shall be at liberty at once, or at any time thereafter, to provide any such labor or materials, and to proceed with the completion of the building.
“(e) The owner agrees to provide all labor and materials not included in this contract, if any, in . such manner as not to delay the material progress of the work, and in the event of failure so to do, which causes loss to the contractors, and which cannot be obviated by. the contractors, the owner agrees that he will reimburse the contractors for such loss.
“(f) It is agreed and understood that the plumbing and electric wiring and elevators and installation of elevators, as provided for by the general plans and specifications, are not included in this contract; and are wholly excepted from same.
“(g) It is further agreed that the contractors shall, at their experise and to the satisfaction of the architects, make a test of each of the three floors of said building in two rooms of each floor, which rooms are to be selected by the owner, and be may select any two rooms he desires on each floor, and the two rooms of each of the first and second floors shall be subjected to á test of 750 pounds to the square foot of floor space in each room, and the rooms of the third floor shall be subjected to the test of 600 pounds.
“(h) The contractors agree to give the owner the privilege of furnishing for use in the construction of said building such lumber as said owner at the time has on hand, to be paid for at the same price as the contractors would have to pay other persons for the same character of lumber, or for lumber to be put to the same use.
“(i) The contractors have estimated the cost of face brick to be used at $24 per thousand, and it is agreed that, if the owner desires to do so, he may select face brick which cost- either more or less than $24 per thousand, and if they cost less, the difference between what they cost and $24 per thousand will be deducted from the contract price, and if they cost more than $24 per thousand, the excess shall be added to the contract price, or the owner shall have the privilege of furnishing such of the face brick to be used in said building as he desires, and shall be allowed therefor the sum of $24 per thousand, regardless of what the face brick may cost him.”

Tbe fence in question, which is nowhere mentioned in tbe contract, was erected by the contractors on Preston street, a public street of the city of Houston, upon which the lots on which the building was being erected fronted. There is an ordinance of the city of Houston which permits building contractors to use one-third of the streets on which the lots upon which they are engaged in building front for storing their material. The fence was erected by the contractors to prevent persons from going upon the grounds upon which the building was being erected and the material stored. The erection of the fence was not necessary for the construction of the building, but contractors usually placed a fence around building material placed in the streets. Hermann was frequently at the building during the course of its construction, and his supervising architects must have known that the, fence was there, but there is no evidence that either knew that it was not properly constructed. We think it clear that the evidence is not sufficient to raise the issue of liability on the part of Hermann for the negligence of the contractors.

Tbe test by which to determine whether one who renders service for another is an independent contractor or an agent or servant depends upon the control and direction which the person for whom the service is rendered has over the work, if such control is limited to the result, and does not extend to the details or the means by which the result is to be accomplished, the relation of master and servant does not exist.

None of the provisions of the contract above set out gave Herman or his architects any right to control or direct the contractors as to the method or means by which tbe work was to be accomplished. The power of direction and control given the architects related only to tbe character of material and workmanship used in the erection of tbe building, and in no manner authorized any interference on their part as to the means by which the work was to be accomplished. Under this contract it must be held that the construction company were independent contractors, and appellants’ decedent was not liable for injuries caused by tbeir negligence. Cunningham v. Railway Co., 51 Tex. 509, 32 Am. Rep. 632; Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S. W. 495.

Appellee 'contends that, regardless of the question of whether the construction company were independent contractors, the evidence shows that the building and maintenance of the fence was an incident in the construction of the building, and, being unauthorized by law, Hermann should be held liable for any injury caused thereby. This contention cannot be sustained. It is true that the fence was erected and maintained by the contractors as an incident of the construction of the building, but their contract with Hermann did not require the building of the fence, and its construction was not necessarily incident to the construction of the building. Hermann could not have required them to erect the fence, and it was not erected under agreement with him, nor was its erection authorized by him, and he was no more responsible for the negligence of the contractors in its erection than he would have been for their negligence in any other matter incident to the construction of the building which was not under his control or direction.

The principle upon which the decision in the Case of Kampmann v. Rothwell, 101 Tex. 535, 109 S. W. 1089, 17 L. R. A. (N. S.) 758, is based is not applicable to the facts of this case. In that case the owner of the property contracted for the construction of a sidewalk, and the work necessarily constituted an obstruction or defect in the sidewalk, which rendered it dangerous as a passageway unless properly guarded, and on these facts it was held that the owner could not defeat liability on the ground that the work was performed by an independent contractor. The owner having contracted for and authorized the construction of the sidewalk, and the work which he had so contracted for being necessarily dangerous to the public unless properly guarded, he was held responsible for the failure of the contractor to have it so guarded. It is, we think, clear that upon the facts of this case no liability can be imposed upon the Hermann estate for the injury sustained by appellee. This conclusion requires that the judgment against appellants be reversed, and judgment here rendered in their favor. This holding upon the question of appellants’ liability to appel-lee eliminates the question of the liability of the sureties upon the contractors’ bond for the amount appellants might have been required to pay plaintiff on account of the negligence of the contractors. We are, however, of opinion that the trial court correctly held that the sureties on said bond could not be held liable to appellants for such amount.

It is ordered that the judgment of the court below against appellants be reversed, and judgment here rendered that plaintiff take nothing as against the defendant executors.

Reversed and rendered.

On Motion for Rehearing.

Counsel for appellee Eitzman in their motion for rehearing very earnestly insist that our opinion heretofore filed in this case is in conflict with the opinion of the Court of Appeals for the Fourth District in the case of Moore & Savage v. Kopplin, 135 S. W. 1033.

The learning and ability of the great judge who wrote that opinion would make us long hesitate to express a different opinion of the law applicable to facts identical with those in that case. But the facts in the two cases-are different. In the case cited the construction of the fence in the street was shown to be unlawful, and its maintenance there-created a public nuisance, and there was evidence, as stated in the opinion of the court on motion for rehearing, showing that the contractor placed the fence in the street in-obedience to the orders and directions of the owner of the building. The holding in' that case is based upon the theory that the-owner contracted for and directed the placing of an unlawful and dangerous obstruction in the street, and upon such facts the court correctly held he could not relieve himself from liability for injury caused by such obstruction on the plea that it was placed in the street by an independent contractor.

As stated in our main opinion, the facts in the instant case show that the owner, Hermann, did not contract for or direct the construction of the fence, and there is no evidence that the placing of the fence in the street by the contractor was unauthorized, and that its maintenance there for the purposes and under the conditions in which it was maintained created a public nuisance. The ordinance under which the fence was'placed in the street granted the right to use the street to the contractor. The permit to erect the building was issued in the name of the owner of the property, but the undisputed evidence shows that it was not applied for by Hermann, and it was presumably obtained by the contractor as the contract required him to obtain it. We think it immaterial, however, who obtained the permit for the construction of the building, since the undisputed evidence shows that the erection of the fence was not included in the contract, and was not necessary in the construction of the building.

Such being the facts, we do not think that upon any principle of law or demand of justice Hermann should be held liable for the negligent manner in which the fence was' constructed, nor for the negligence of the contractor in placing his material against. the fence, and thus causing it to fall and injure the appellee.

We think the motion for rehearing should be overruled; and it is so ordered.
      «S^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TAYLOR v. ULLMANN, STERN & KRAUSE, Inc.
    (No. 7247.)

    (Court of Civil Appeals of Texas. Galveston.
    June 28, 1916.
    Rehearing Denied Oct. 5, 1916.)
    1. Venue &wkey;>21 — Mortgage Foreclosure— Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1888, providing that, where the defendant in any suit dies before verdict and the cause of action survives, the suit shall not abate, but that the clerk shall issue a scire facias, requiring the executor to defend an action on notes payable in G. county, secured by deed of trust on land in another county where testator resided, was properly continued in G. county against his executrix appointed as executrix in such other county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 34; Dee. Dig. <©=321.]
    2. Homestead <§=33t-Character — Use.
    Where the maker óf notes secured by a mortgage on a tract resided upon a smaller tract in a village and used the larger tract situated about one-fourth to one-half mile away in connection with his business as a stock pasture and for the raising of crops, there was such use of that tract as would impress upon it a homestead character.
    [Ed.. Note. — For. other cases, see Homestead, Cent. Dig. §§ 44-49; Dec. Dig. <&wkey;33.]
    3. Homestead <&wkey;57(3) — Character—Sufficiency of Evidence.
    Evidence, in an action on notes secured by a deed of trust on a tract about from one-fourth to one-half mile away from the smaller tract on which the mortgagor lived, held to sustain a finding that the smaller tract was the urban homestead of the mortgagor.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 85; Dec. Dig. <@=57(3).]
    4. Homestead <@=13 — Right—Urban and Rural Land.
    One is not entitled under the law to a mixed homestead, part urban and part rural.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 14; Dec. Dig. <§=13.]
    5. Appeal aND Error <@=1071(1) — Harmless Error — Finding as to Homestead.
    Where a mortgagor was not entitled to a mixed homestead, part urban and part rural, an erroneous finding that his use of the rural tract did not impress upon it a homestead character was harmless error, where the court found that the land on which the mortgagor resided was his urban homestead.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4234; Dec. Dig. &wkey;1071(l).]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Ullmann, Stern & Krause, Incorporated, against Lizzie G. Taylor, executrix of M. D. Taylor, deceased, and others. Judgment against the defendant Mrs. L. G. Taylor, executrix, and she appeals.
    Affirmed.
    Hall & Barclay, of Wharton, for appellant. Mart I-I. Roysten, of Galveston, for appellee.

       Application for writ of error pending in Supreme Court.

   LANE, J.

On the 8th day of October, 1913, M. D. Taylor made, executed, and delivered to Ullmann, Stern & Krause, Inc., hereinafter called “plaintiffs,” his three certain promissory notes, two of which were for $1,000 each, and the other for $2,000, all payable at Galveston, Tex. Contemporaneously with the execution of said notes, the said M. D. Taylor also executed a certain deed of trust, by which he conveyed to John Dunn, as trustee, 64 acres of land situated in Wharton county, Tex., to secure the payment of said notes.-

This suit was instituted in the district court of Galveston county, Tex., on the 21st day of November, 1914, against M. D. Taylor to recover the balance due on said notes, and against both Taylor and Dunn for a foreclosure of its deed of trust lien on said 64 acres of land. After the suit was filed, M. D. Taylor filed his answer, admitting the execution and delivery of said notes and deed of trust, and the indebtedness, as alleged by plaintiffs; but he alleged that, at the time said deed of trust was executed, the 64 acres of land, by the same conveyed to Dunn, was a part of the homestead of himself and family, and that said deed of trust was void. John Dunn, trustee, also filed his answer on the 10th day of February, 1915, disclaiming any interest in the land in question. On the 11th day of March, 1915, by their first amended petition plaintiffs made Mrs. Lizzie G. Taylor, wife of M. D. Taylor, party defendant, alleging that she was claiming some kind of interest in the 64 acres of land described in said deed of trust. On the 29th day of March, 1915, Mrs. Taylor filed her answer in which she first pleaded her privilege to be sued in Wharton county, the place of her residence, and second, adopted the answer of M. D. Taylor, upon the merits of the case.' On the 3d day of April, 1915, after all parties had filed their answers, M. D. Taylor died, and left a will wherein his wife, Lizzie G. Taylor, was named as independent executrix; said will was duly probated in the county court of Wharton county on the 21st day of July, 1915, and Mrs. Taylor duly qualified as such independent executrix. Thereafter, plaintiffs made Mrs. Lizzie G. Tajdor, as executrix, party to the suit. Thereafter, to wit, on the 14th day of October, 1915, Mrs. Lizzie G. Taylor, executrix, filed her answer: First, pleading her privilege to be sued in the county of her residence; second, setting forth the fact of her qualification as independent executrix under the will of M. D. Taylor, deceased; third, alleging that an administration was pending, in the county court of Wharton county, and that for that reason the district court of Galveston county had no jurisdiction to hear and determine said cause; and, fourth, alleging that the land described in said deed of trust was the homestead of M. D. Taylor, deceased, at the time of the execution of said deed of trust, and that therefore said deed of trust was and is void. The trial court overruled Mrs. Taylor’s pleas of privilege and plea to the jurisdiction of the court, and on the 25th day of October, 1915, the case was tried before the court without a jury, who rendered judgment against Sirs. L. G. Taylor as executrix of the will of M.' D. Taylor, deceased, establishing the debt sued for as against the estate of M. D. Taylor and for a foreclosure of said deed of trust lien against all defendants in favor of plaintiffs. From such judgment, Lizzie G. Taylor, executrix, alone has appealed.

By the first assignment of Mrs. Lizzie G. Taylor, independent executrix, it is insisted that the trial court erred in sustaining appellees’ exception to her plea of privilege to be sued in the county where the will of M. D. Taylor was probated and in which she qualified as independent executrix, under said will.

It has already been shown that this suit was instituted against M. D. Taylor to recover upon certain notes executed and delivered by him to appellee, and for a foreclosure of a deed of trust lien upon the land in question; that after said Taylor had filed his answer he died before the trial of said cause; that he left a will, wherein Mrs. Lizzie G. Taylor was named as independent executrix; that said will had been duly probated in Wharton county, and Mrs. Lizzie G. Taylor had qualified as independent executrix; that thereafter Mrs. Taylor was made a party to this suit by proper petition.

It is provided by article 1888, Vernon’s Sayles’ Texas Statutes, that:

“Where in any suit the defendant shall die before verdict, if the cause of action be one which survives, the suit shall not abate by reason of such death, but, upon a suggestion of such death being entered of record in open court, or upon a petition of the plaintiff, representing that fact, being filed with the clerk, it shall, be his duty to issue a scire facias for the executor or administrator, and, in a proper ease, for the heir of such deceased defendant, requiring him to appear and defend the suit, and, upon the return of such service, the suit shall proceed against such executor, administrator or heir, and such judgment may be rendered therein as may be authorized by law.”

The action of the court in sustaining ap-pellees’ exception to said plea of privilege is sustained by the following authorities: Nixon v. Malone, 100 Tex. 250, 98 S. W. 380, 99 S. W. 403; McCampbell v. Henderson, 50 Tex. 601; Wadworth v. Cardwell, 14 Tex. Civ. App. 359, 37 S. W. 367; Blum v. Goldman, 66 Tex. 621, 1 S. W. 899. Appellant’s first assignment is overruled.

The substance of appellant’s assignments 2, 3, and 4 is that the undisputed evidence shows that the 64 acres of land involved in this suit was, at the time of the execution and delivery of said deed of trust by M. D. Taylor to appellees, a part of the homestead of M. D. Taylor, and exempt to him as such under the law; and that said deed of trust was and is void, and constitutes no lien on said land; and that the trial court erred in holding to the contrary and in foreclosing said lien.

At the request of appellant, the trial court prepared and filed his findings of fact in substance as follows; That at the time of the execution of the deed of trust in question, M. D. Taylor told appellees that his home was a certain 24% acres of land in the village of lago, in Wharton countj', and that the 64 acres of land in question formed no part of his homestead, and that he drew a sketch for appellees showing how said 64-acre tract was separated from his home, which he said was in the town of lago. That said deed of trust contains a recital as follows:

“Same property free of any incumbrance and not homestead, my homestead being 24% acres of land in the town of lago.”

That the town or village of lago contains about 25 or 30 families. That it is unincorporated, and that there has never been any map made of said town showing a division ■into lots, but that owners of different tracts of land have divided them into town lots. That there were three general stores, including the one owned by Mr. Taylor, a drug store, three saloons, a blacksmith shop, and a schoolhouse in said town of lago. That the said 64-acre tract is situated about one-fourth to one-half miles from M. D. Taylor’s said 24% acres which he claimed as his homestead at the time he executed and delivered said deed of trust. That the only continuous use made by Taylor of the said 64-acre tract was for a hog pasture, though two or three crops of corn or potatoes had been grown on it in the number of years Taylor had owned it, and that sometimes the milk cows of the family were pastured thereon. That the said home tract of 24% acres, or that portion on which Taylor lived, and on which he had his store, was in the town or village of lago, and that the 64-acre tract was in the country and not in the town or village.

The court also, at the request of the appellant, prepared and filed his conclusions of law, as follows:

“(1) The 24%-aere tract, or that portion of it on which M. D. Taylor lived and where he had his store, being in the town or village of lago, and the 64-acre tract described in the deed of trust being in the country, the former constituted the homestead of the family, and the latter was not a part of the homestead.
“(2) There was no use made of the 64-aere tract as would impress upon it the homestead character.
“(3) The 24%-aere tract in the town or village of lago, where the home and store were situated, was an ample homestead provision for the family, and, even if the 64-acre tract had been in the town or village, Mr. Taylor had a right to designate the homestead of his family therein and to disclaim homestead in any other land not impressed with the homestead character by characteristic use.”

Morris Stern, an officer of appellee corporation, testified that M. D. Taylor • told him that the 24% acres of land on which he had hds dwelling house and store was in the town of lago, and constituted his- homestead.

Mrs. Lizzie 6. Taylor, widow of M. D. Taylor, appellant herein, testified that she and M. D. Taylor were married in 1910; that they made the said 24% acres and the 64 acres of land their homestead from the time of said marriage up to the death of Mr.. Taylor ; that she lived in the town of lago; that at the time of the death of Mr. Taylor he was conducting a general mercantile business ; that he was also a farmer and trader; that he traded in hogs, cattle, and bought and sold land, bought anything that came along; that during the years 1912,1913, and 1914 the 24%-acre tract upon which his residence was situated and the said 64 acres involved in this suit constituted their homestead; that from 1909 to the time of the death of Mr. Taylor, he used the 64-acre tract 'as a hog pasture, and to pasture their milk cows and teams he used on his farm; that Mr. Taylor owned 358 acres of land, a part of the Stephen P. Austin survey at the time of his death (the 64 acres in question was also a part of the same survey), but he had only paid $5 per acre on said 358 acres, and owed $45 per acre thereon; that the said 64-acre tract was about one-half mile from said 24%-acre tract and was not in the town of lago; that Mr. Taylor was postmaster at lago at the time of the execution of said deed of trust.

All the witnesses testified that the 24%-acre tract was at or in lago, and that the 64-acre tract was used by Mr. Taylor for pasturing his hogs, cattle, milk cows, and farming teams. It is, or seems to be, conceded that said 64-acre tract is not in lago, but is in the country.

We conclude from the undisputed evidence that the uses made by Mr. Taylor were such uses as one would make of his homestead, and that the court erred in holding that “there was no use made of the 64-acre tract as would impress upon it the homestead character.” But we further conclude that there was sufficient evidence to support the finding of the court that the 24% acres upon which M. D. Taylor lived was, at the time -said deed of trust was executed, the homestead of himself and family; that it was situated in the town or village of lago; and that it was therefore an urban homestead. We conclude therefore that as Mr. Taylor was not, under the law, entitled to a mixed ■homestead, part urban and part rural, the -finding of the court that uses made of the ■said 64-acre tract did not impress upon it a homestead character was harmless error, as the judgment rendered can be sustained on the finding of the court that the 24% acres upon which Mr. Taylor actually resided was his urban homestead.

As we are not prepared to say that the finding of the court that the 24%-acre tract •of land upon which the family residence and store building of M. D. Taylor were situated were within the town of lago, and therefore urban property, was not supported by the evidence, we think the judgment of the trial court should be affirmed, and it is so ordered.

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


author: PRENDERGAST, P. J.

text:
    PRICE v. STATE.
    (No. 4123.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.)
    Criminal Law i&wkey;1095, 1102 — Statement and Bill oe Exceptions — Time oe Filing.
    Statement of facts and bill of exceptions filed after adjournment of the term, without order permitting it, will be stricken out, on motion.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dee. Dig. &wkey;>1095, 1102.]
    Appeal from Fayette County Court; Geo. Willrieh, Judge.
    Stanley Price was convicted, and appeals.
    Affirmed.
    Duncan & Burleson, of La Grange, for appellant. C. C.. McDonald, Asst. Atty. Gen., for the State. .
   PRENDERGAST, P. J.

Appellant prosecutes this appeal from a conviction for unlawfully carrying a pistol with the lowest punishment assessed.

The court convened April 3d and adjourned for the term April 21, 1916. He was convicted April 4th. No order was made authorizing a statement of facts or bills of exception to be filed after term 'time. These documents' were not filed till May 12, 1916, 21 days after adjournment.

The state has made a motion to strike them from the record because not filed in time. Appellant’s attorney has filed an affidavit to the effect: That 10 or 12 days prior to the date of the signing of said documents — which was that long after adjournment — he filed them with the county judge, and instructed him that, if the county attorney would not agree to the statement of facts, he would have to prepare one himself; that it was a well-known fact that he and the county attorney had never been able to agree on a statement of facts, and it was a common occurrence for the judge to have to prepare it; that the county attorney, after being absent from home for several days, called on him and told him he would agree to, and sign, his statement of facts, at which time he objected because he did not know when court had adjourned, and the county attorney assured him the date was within the time required by law; that, although he (appellant’s attorney)- himself at first refused to sign, upon this assurance, he did sign. No affidavit is made about the bills of exceptions.

As stated, no order was made permitting these documents to be filed after adjournment. He had from April 4th, the date of the trial, to April 21st, the date of adjournment, to get them. From the affidavit, it appears, they were not at any time submitted by appellant to the county attorney, nor to the county judge, until “10 or 12 days prior to the date of their signing,” which was 8 to 11 days after adjournment.

Under the statute and uniform decisions, the Assistant Attorney General’s motion to strike them out and not consider them must be, and is, sustained. . Without these, no question is raised which we can review. However, we might say that we have looked over said documents, and if we could consider them, under the authorities, no reversible error would be presented.

The judgment is affirmed.
      <§n^Kor other cases see same topic and KEY-NUMBÉR in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    THORNTON v. STATE.
    (No. 4146.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.)
    1. Burglary &wkey;>23 — Indictment — Ownership of Property.
    The indictment may allege breaking and entry with intent to steal property of W., though it is owned jointly or in common by him and another.
    [E'd. Note. — For other cases, see Burglary, Cent. Dig. §§ 63-66; Dec. Dig. <5&wkey;23:]
    2. Burglary <&wkey;28(l) — Ownership of Property — Want of Consent — Pleabing and Proof.
    While, where the indictment for burglary with intent to steal property alleges ownership of the property in one of the joint owners, the state need prove want of consent only of the alleged owner, any consent of the others being for defendant to prove, it is not error to allow the state to prove their nonconsent.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 67, 78; Dec. Dig. <S=^28(1).]
    3. Criminal Law <&wkey;372(10) — Evidence of Other Crimes.
    The proof of burglary depending on circumstantial evidence, and defendant being found in possession of the property alleged to have been stolen, it may be shown that other property then found in his possession had been stolen about the same time from near the same place.
    [Ed. Note — For _ other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372(10).]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    C. R. Thornton was convicted, and appeals.
    Affirmed.
    Cunningham & Sewell, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at two years’ confinement in the state penitentiary.

There are four bills of exception, but they present but two questions for review. The first is that as the indictment alleged appellant broke and entered the house of G. H. Willbanks, with the intent to steal prop-

erty therefrom belonging to G. H. Willbanks, that the state ought to have been limited to proof of such allegations; and when the evidence showed that the property in the house was the joint property of G. H. Willbanks and J. D. Pittman, the state ought not to have been permitted to prove that there was stolen from Willbanks’ house property belonging jointly to Willbanks and Pittman, and ought not to have been permitted to prove by Pittman that he did not give his consent to appellant taking the property. It has long been the rule in this state that when property is owned in common or jointly by two or more persons the ownership may be alleged to be in all or either of them. Sara ora v. State, 4 Tex. App. 508; Calloway v. State, 7 Tex. App. 585; Terry v. State, 15 Tex. App. 69; Clark v. State, 26 Tex. App. 486, 9 S. W. 767; Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 585; Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Bailey v. State, 50 Tex. Cr. R. 402, 97 S. W. 694; Lockett v. State, 59 Tex. Cr. R. 531, 129 S. W. 627; Davis v. State, 63 Tex. Cr. R. 453, 140 S. W. 349. In Branch’s Ann. Penal Code, art. 2452, the ruléis also”stated to be:

“The state is not required to prove the want of consent of any person not mentioned in the indictment. f * • It is not error, however,” to permit it “to do so” (citing a great many authorities, among them being Skaggs v. State, 56 Tex. Cr. R. 81, 119 S. W. 106).

In this case Judge Davidson said:

“Where two or more parties may be owners of property, it is sufficient to allege the ownership in either, and the state would only be required to prove the want of consent of the alleged owner. If the others had given consent, it was a matter appellant might prove to avoid the evil or fraudulent intent in entering the house.”

While under the allegations contained in the indictment it was not necessary for the state to prove that Pittman did not give his consent to appellant taking the property, yet there was no error in permitting it to do so.

The other three bills all relate to the question of permitting the state to prove that the houses of W. O. Johnson, A. Johnson, J. H. Conner, and Jack Conner were entered and property stolen therefrom, it being contended that they each presented separate and distinct offenses, and appellant was on trial alone for breaking and entering the house of G. H. Willbanks. Ordinarily, proof of other and different offenses than the one for which one is on trial is not admissible, but there are exceptions to that rule, and the evidence in this case comes well within one of these exceptions. The facts in’ this case would show that Willbanks’ house was entered at night, and some meat stolen therefrom. Information was received that led the owners and officers to go to Anson, and in Anson they ascertained that Saturday, after Willbanks’ barn was entered, appellant and G. R. Page were in Anson, and there sold some meat, three sets of harness, and some collars, the harness and collars being sold to G. J. Chittim. When it was ascertained that appellant and Page were in Anson selling meat and this harness, appellant and Page’s residences were searched, and in their houses there was found meat corresponding to that stolen, one ham being specifically identified by Thornton as a portion of the meat stolen by the way it was cut and trimmed. The harness purchased by Chittim from appellant and Page was carried back to Abilene, and, after being carried back, the harness and collars were identified by W. O. Johnson, A. Johnson, J. I-I. Conner, and Jack Conner as property stolen from them, a portion on the same night Willbanks’ barn was burglarized, and a portion stolen the night before. All four of these gentlemen and Mr. Willbanks lived in the same neighborhood, and not a great distance from each other. Under such a state of facts, in a case depending on circumstantial evidence, it has always been held to be the rule that it is permissible to prove that when one is found in possession of the property alleged to have been stolen, it may be shown that other property then found in his possession had also been stolen at about the same time of the alleged theft and stolen from near the same place. This question was discussed by Judge Hurt in House v. State, 16 Tex. App. 31, and decided adversely to appellant’s contention in this case. See, also, Satterwhite v. State, 6 Tex. App. 613, and Wharton’s Crim. Ev. §§ 34 to 41, inclusive, and cases there cited from this and other states.

There is no other question presented in a way we are authorized to review the action of the trial court.

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