author: GRAVES, J.

text:
    JOHNSON v. JOHNSON et al.
    (No. 7588.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 28, 1918.)
    1. Dimitatiow ox Actions <&wkey;67 — -Personal Peoperty — Collection and Appropriation of Rents.
    Where a father, owning land in common with his children, collected rent for more than 30 years without. accounting therefor, or recognizing children’s right to participate therein, and appropriated rent to own use, children were barred from recovering their interest in such rents as were collected for more than 2 years prior to action, under Rev. St. arts. 5687, 5690, though 5 years prior to action he recognized children’s interest in property by joining with .them in mortgaging property.
    2. Partition <&wkey;81 — Relief—Sale by Tenant of Portion of Land.
    Where father, owning land in common with his children sold a son, a portion of the land less both in quantity and value than son’s interest in the common estate, the court, in partition action, will not disturb the sale, which did not prejudice the other children.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Robert Henry Johnson against Robert Henry Johnson, Jr., and others. Prom the judgment' rendered, plaintiff appeals.
    Reversed and remanded* with instructions.
    James B. & Charles J. Stubbs and P. Spencer Stubbs, all of Galveston, for appellant.
    Geo. G. Clough, of Galveston, for appellees.
   GRAVES, J.

Appellant sued the appel-lees, who were his chj¿dren, their mother being dead, in the court below for partition of certain property, consisting of some lots and the improvements thereon, located in block 156 in the city of Galveston.

On December 2, 1012, all of the defendants below, except George E. Johnson, filed an answer and cross-action, in which they set up the interest they claimed in the property and alleged that the plaintiff had, ever since the death of their mother in 1884, received and appropriated to his own use large sums of money for rental upon the common property, for which they sought an accounting with and a judgment against him.

The other defendant, George E. Johnson, answered by saying that on'April 13, 1912, which was prior to the filing of this suit, the plaintiff had made a full settlement and partition 'with him of his interest in the ■entire community property of his parents, by deeding to him 28 feet and 11 inches by 80 feet and 6 inches out of lot 9 in the block involved, together with a, house thereon, which property did not exceed in quantity or value the one-eighth of the entire community, or the one-fourth of his mother’s half thereof, to which he was entitled, and prayed that such deed and settlement be confirmed by the court.

Plaintiff, by appropriate pleadings, like-rvise affirmed the settlement he had so made with George E. Johnson,, and also asserted that the property thereby conveyed did not •exceed in quantity and value the portion they each were entitled to out of that held in common by all the parties to the litigation.

By mutual agreement of all the parties the court withdrew the cause from the jury, and appointed what was termed “an auditor and master in chancery” to determine and state the accounts between them, and to report his findings as to the respective interests of each in the real estate and the improvements thereon. The auditor filed his report accordingly, and since his findings as to the various interests of the different parties in the real estate and improvements are accepted by them all, except his setting aside of the settlement and partition made by the plaintiff with George Johnson, these particular features need not at this point be further elaborated upon.

In addition, however, there we're findings, that the plaintiff had, throughout many years, beginning in 1884, and continuing down to about the time of the trial in 1917, collected and appropriated different sums of money in rents from the common property, without having accounted therefor to the complaining defendants; the findings being so framed as to show the amounts of rents collected upon each separate item of the common property for the period prior to December 1, 1910, §s well as subsequent to that date.

The court entered judgment substantially in accord with the auditor’s findings, vesting the different interests of the parties in the property, which included the setting aside of the conveyance and settlement made by the plaintiff with George E. Johnson, and awarded to each of the defendants in different amounts sums of money against the plaintiff for rents, part of which, as found by the auditor, had been collected during ■the period from June 1, 1884, to December 1, 1910.

There were numerous other features of the judgment not specially material to the issues presented by this appeal.

The plaintiff below, Robert Henry Johnson, Sr., alone has appealed. He complains of the judgment in two respects: First, in allowing any recovery against him for any rents collected by him prior to December 1, 1910, as against the plea he had at the proper time interposed that all such claims were barred by the 2-year statute of limitation; second, in setting aside and nullifying the deed and settlement made by him on April 13, 1912, with defendant George E. Johnson.

The appellant had by appropriate action throughout the course of the proceedings pressed his objections to these matters in such way as to be entitled to now present them to this court.

We think his contentions correct, and that the trial court erred in both particulars complained of.

As the preceding recitation has shown, the cross-action of defendants for rents was first filed December 2, 1912, which would bring such of them as were collected prior to December 1, 1910, under the ban of the 2-year statute, if it applied. The appellees earnestly insist that it did not apply, because, it is claimed, the appellant never repudiated, but expressly recognized,' their rights as tenants in common with him of the property itself, and never claimed the rents ■therefrom adversely to them. The only considerations offered in support of this position, however, are that by filing his suit in 1912 for partition of houses and lots he alleged were owned in common, and having in 1907 acted with his admitted cotenants in jointly mortgaging their common property in order to borrow money thereon for the purpose of raising the lots to grade, he thereby expressly recognized their right to now share with him the rents which, throughout a period of about 30 years, he had, as ap-pellees alleged in their cross-bill and the undisputed proof showed, collected and appropriated to his own use without in any manner accounting to them, and without the assertion of any demand therefor upon their part until the filing of their counterclaim in this suit on December 2, 1912; nor was there in the evidence any other circumstances even tending to show that he ever during all that time recognized their right to participate in the rents and revenues of the common estate, but entirely ignored them in that respect and both treated and kept these proceeds as exclusively his own.

Under such a state of facts, there being nothing whatever in this record to show1 that the appellees could not have sought recovery of their interest in these rents, which were personal property, many years before they did, and within a reasonable time after the death of their mother in 1884, and after the rents had been so appropriated by their father, we think such of them as the proof showed had been collected more than 2 yehrs before the filing of their cross-action — that is, prior to December 1, 1910 — were barred. R. S. art. 5687; R. S. art. 5690; Wingo v. Rudder et al., 103 Tex. 150, 124 S. W. 899; Miller v. Miller, 34 Tex. Civ. App. 367, 78 S. W. 1085; Albrecht v. Albrecht et al., 35 S. W. 1076; First Nat. Bank v. Cohen et al., 55 S. W. 530.

As to the second matter complained of, the action of the court in annulling the George E. Johnson settlement, the auditor’s report, which the court adopted, was in part as follows:

“I find that it [referring to the George Johnson house] is situated on ground that is community property, and for that reason the title attempted to he put in George Johnson by the deed from plaintiff to him falls to the ground; the other part owners refusing to join therein, and the evidence failing to disclose that the portion that plaintiff and George Johnson were entitled to receive, clear of all liens, were of sufficient value to be charged with the value of this particular tract.”

The evidence wholly fails to sustain this last stated fact finding, but undisputedly establishes that the house and lot so deeded to George Johnson by his father were in .both quantity and value considerably less than they were entitled to out of the common estate, that the settlement thereby evidenced was not inequitable or unfair to the other cotenants, and would not in any way have prevented any one of them from receiving a full and just share of such common property. Since, as stated, the evidence upon this issue is undisputed, it is not thought essential that it be restated here.

It seems to be a well-settled principle in equity that, where one tenant in common sells a portion of the land by metes and bounds, such sale will not be disturbed, if the interests of the other tenants in common are not prejudiced thereby, and they can be made whole out of the remainder of the tract. Peak v. Swindle, 68 Tex. 253, 4 S. W. 478; Wilson v. Helms, 59 Tex. 680; Cook v. I. & G. N. Ry. Co., 3 Tex. Civ. App. 125, 22 S. W. 1012.

In the last-cited case it is further held that no reason is perceived why this principle should not apply to a less interest than the whole of the cotenants’ estate. Applying the rule stated in these authorities to the facts we have found here, it is apparent that the court erred in setting aside the conveyance and vacating the settlement made with George E. Johnson.

From these conclusions it follows that the judgment should be reversed, and the cause remanded, which is accordingly done, with instruction to the trial court (1) to enter its judgment confirming and validating the deed, partition, and settlement made between the plaintiff and George E. Johnson; (2) to so restate the accounts between the parties as to eliminate all rents collected and all expenses paid out by the plaintiff on account of the jointly owned property prior to December 1, 1910; (3) to order the sale of the property and distribute the proceeds to the parties in accordance with their respective interests, as shown by the auditor’s report, modified and corrected as above indicated, and to charge the interests of the several parties in the proceeds with their proportionate part of the lien upon the whole property held by Mrs. George Johnson and for unpaid taxes.

Reversed and remanded, with instructions.
      dfeoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    CITY OF LUBBOCK v. BAGWELL.
    (No. 1402.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1918.
    Rehearing Denied Nov. 20, 1918.)
    1. Explosives ®=8 — Proximate Cause — Injury prom Explosions.
    Where a nine year old boy was injured by the explosion of dynamite caps which he found on his father’s premises, where they had been placed by the city’s employés, so as to be accessible and attractive to children, the act of the employés was the proximate cause of the injury, notwithstanding that the injury occurred next day, while plaintiff was attempting to solder two of the caps together.
    2. Appeal and Error <g=»1060(4) — Review —Harmless Error.
    In a personal injury action due to an explosion of dynamite caps negligently disposed of by defendant’s employés, argument by plaintiff’s counsel, not sustained by evidence, that defendant knew the employés were negligent because it discharged them, is not reversible error, where verdict is not against weight of 'evidence.
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action by Stancil Bagwell, by his father as next friend, against the City of Lubbock, judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. E. Tickers and Roscoe Wilson, both of Lubbock, for appellant.
    Bean & Klett and W. H. Bledsoe, all of Lubbock, for appellee.
   HUFF, C. J.

Stancil Bagwell, by his father, next friend, sued the city of Lubbock for damages sustained by an injury received from the explosion of dynamite caps alleged to have been placed by the employés of appellant, so as to attract the attention of a child of the age of appellee. The city was digging a ditch in the street by or hear the home of appellant, for the purpose of placing therein a sewer for the city and for the convenience of the people thereof. The work was directed by a superintendent and foreman, and at the point near the premises of appellee’s father it was necessary to excavate by the use of explosives. For this purpose dynamite and dynamite caps were purchased and used. At the end of the day’s work the foreman placed a box of dynamite caps on the plate of a shed or chicken house belonging to the father of appellee and on his premises near an alley running back of the shed. The caps were in a red box, unlocked and placed on the plate of the shed about five feet and two inches from the ground. The appellee was a boy nine years old when he received the injury. He was out playing in the alley back of the shed, and the little red box attracted his attention. There were two meter boxes, one on top of the other, near the shed. These boxes were nearer to a lower shed than the chicken house. He got on the boxes, and from them got onto the lower shed, and from that one reached the box and opened it, finding about twenty dynamite caps, and he took therefrom two of the caps and placed them in his coat pocket. The next evening at home he tried to solder the two caps together by using a little rod of iron which he had heated, and in doing so exploded the caps, which tore off his hand, or lacerated it so that amputation at the wrist joint was necessary. His eye, face, and other portions of his body received injury, but not permanent. . The boy says that he thought the caps were cartridge shells, and that he got the idea of soldering them from a plumber who had been at work on pipes in his father’s house; that pieces of solder. used by the plumber had been left, and he found it, and with the hot iron tried to solder them, when the explosion occurred. His father and mother were present in the room at the time, and just previous to the explosion the father had told the boy to stop playing in the fire. The boy stopped, and moved to another place, but continued his undertaking with the iron. The father and mother were both reading at the time, and did not know what the boy had, and did not know that he had the dynamite caps or had found them, or that he was trying to solder them. They appear not to have known that the employes of appellant had placed a box of caps on the house plate. The evidence is sufficient to show that the employes knew children were around the place. It was not far from the school which the children were then attending, and they passed the place where the work was being done frequently.

The first assignment is that the court erred in refusing to give spécially requested charge No. 1, because (a) the undisputed facts show that the injury was too remote to have been anticipated by the defendant or its employés, and the question of remoteness is one of law and should not have been submitted to the jury; (b) under the undisputed facts a peremptory instruction should have been given for the defendant. Under this assignment appellant presents two propositions, which are substantially the same as the propositions in the assignment. The appellee objects to the consideration of this assignment, propositions and statements thereunder, because not briefed according to the rules. Some of the objections made are well taken, but we have concluded to consider the assignment.

Our Supreme Court has approved a definition of proximate cause formulated by the Supreme Court of the United States. Railroad Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256:

“But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”

Our court also in that case quoted the following from Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602:

“If the intervening cause and its probable or reasonable consequences be such as could reasonably have been anticipated by the original wrongdoer, the current of authority seems to be that the connection is not broken.”

After the above quotations, Judge Gaines, for the court, said:

“It follows that, in our opinion, the question of probable cause ought to depend upon the further question whether a reasonably prudent man, in view of all the facts, would have anticipated the result — not necessarily the precise actual injury, but some like injury, produced by similar intervening agencies.”1 Ry. Co. v. Bingham, 90 Tex. 223, 38 S. W. 162.

In the case of Ry. Co. v. McFadden, 89 Tex. 138, 33 S. W. 853, the carrier suffered cotton to remain on a compress platform, exposed to fire from passing engines, several days after it was compressed, which was found to be negligent. It was contended in that case such delay was not the proximate cause. The court in that case, after quoting from the Kellogg Case, supra, said:

“It ought to have been reasonably anticipated, under the circumstances, that the cotton would probably be destroyed by fire. It was negligence to leave it so exposed an unreasonable length of time, and we think the loss ought to be deemed a proximate result of that neglect.”

It is said in the case of Wells v. Gallagher, 144 Ala. 363, 39 South. 747, 3 L. R. A. (N. S.) 759, 113 Am. St. Rep. 50, by the Alabama court:

“It is unimportant how long the bomb remained in the public alley, if it remained long enough to, cause injury, and it is equally unimportant whether the plaintiff, a boy under fourteen years of age, exploded the bomb in the public alley, where it is alleged to have been negligently placed, or whether he carried it to an adjacent yard and there exploded it, and received the injury complained of. In either case the alleged injury is the proximate consequence of the alleged negligence.”

See Tills v. Cloquet, 119 Minn. 277, 138 N. W. 33.

"The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury.” Clark v. Du Pont, 94 Kan. 268, 146 Pac. 320, L. R. A. 1915E. 479, Ann. Cas. 1917B, 340.

In Moore v. Jefferson City Bight, etc., Co., 163 Mo. App. 266, 146 S. W. 825, the court quotes from Sherman & Redfield, in part, the following:

“Proximity in point of time or space, however, is no part of the definition. That is of no importance, except as it may afford evidence for or against proximity of causation.”'

In the last case cited it appears the employe placed the explosive under the plaintiff’s porch, which was held to have been negligent. This was exploded by a boy firing a Roman candle. It was contended that the boy exploding the Roman candle was the proximate cause. This contention was overruled by the court. In the instant case no complaint is urged to the jury’s finding of negligence in placing the caps on the house plate of plaintiff. Having placed this dangerous explosive in such position as to be reached by an irresponsible child, and so as to attract his attention, he must have anticipated danger or probable injury to the boy or to some other child.

It was not necessary for him to have anticipated the precise act that exploded the cap or the time in which it ought to occur. Time was of no importance or part of the proximate cause, further than it might be considered by the jury in connection with the other circumstances of the case in determining the proximate cause. The first assignment will be overruled.

The second assignment complains of the argument of counsel for appellee to the effect that the city council of Rubboek knew that the superintendent and foreman in charge of the work were negligent in placing the box of caps where they did because they immediately discharged such employes. The error assigned is that there was no evidence warranting such statement of discharge, and that the court permitted the argument of counsel, and refused to instruct the jury at the request of appellant not to consider it. The appellee insists that the assignment is not properly briefed. We are inclined to believe some of the objections made by ap-pellee well taken. It is not shown by the assignment or statement that objections were made at the time of the argument, and the charge requested is not given, neither is the bill of exception taken set out in the statement, or a reference to the page of the transcript where it may be found. This court is left to find the bill, the charge requested, and the exception made, and to ascertain When the objection was made and when the charge was requested and refused. Again, from the facts set out in the brief, we are unable to say there was no evidence to authorize the statement made by counsel. It would appear from the brief that no objection was made at the time of the argument that there was no evidence that the employes were discharged because of their negligence. In the submission of the case the court submitted no issue to the jury as to the negligence of the city council, but the issue submitted was whether the foreman was negligent in placing the caps on the house plate. As theretofore sugested there is no complaint to the finding of the jury that the foreman was negligent in so placing the caps. If the argument was improper, no injury on that issue is shown. The only effect the argument could have had would have been to induce the jury to find negligence on the part of the discharged employé. The jury’s finding on that issue was not questioned on appeal; hence no injury is shown. The argument was not calculated to inflame the minds of the jury or to procure an excessive verdict. In other words, appellant stands in this court admitting that there was negligence by the foreman, as found by the jury, which is established by the evidence.

It has always been the rule that a judgment will not be reversed on account of an improper argument unless the verdict is against the weight of the evidence. Ry. Co. v. Adams, 121 S. W. 876; Kettler v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900; Freeman v. Griewe, 143 S. W. 730; Ry. Co. v. Green, 183 S. W. 829.

The remaining assignments of error, in our judgment, present no ground for a reversal; in fact, most of them, if not all, are defectively briefed, and appellee earnestly insists that they should not be considered. The questions raised by them are on issues that have been frequently passed on by the courts of this state, and no useful purpose can be subserved by setting them out and discussing them. They will therefore be overruled and the judgment affirmed.
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author: DANE, J.

text:
    BURKITT v. MOXREY et al.
    (No. 7631.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1918.)
    1. Trover and Conversion <&wkey;40(3) — Ownership of Property — Sufficiency of Evidence.
    In suit by wife for conversion of machinery, owned by her as widow of her first husband and taken by defendant from possession of her second husband in foreclosing mortgage thereon, evidence held to sustain finding that property belonged to plaintiff’s first husband, and that on his death it came into her possession as his widow.
    2. Husband and Wife <&wkey;133(l) — Wife’s Estate — Evidence.
    In wife’s suit for conversion of her personalty by defendant foreclosing a mortgage given by the husband, it was not necessary for the wife to show from what source she acquired the property, but only that it was her separate property.
    3. Husband and Wife <&wkey;129(3) — Separate Property — Estoppel to Claim.
    Act of wife in permitting husband and his partner to use her machinery in business as if it belonged to them did not legally estop her from claiming property as against creditor of firm, who accepted mortgage from partners to secure debt against firm.
    4. Husband and Wife <&wkey;129(4) — Separate Property of Wife — Possession of Husband-Notice by Wife.
    That the law now gives a wife control of her separate property does not require her to give notice of ownership to those who might give credit to husband on strength of his possession and use of such property, to protect it against seizure and sale for payment of husband’s debts.
    5. Appeal and Error <&wkey;994(3) — Review — Credibility of Witnesses.
    Credibility of witnesses was for trial court to pass upon, not for Court of Civil Appeals.
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Suit by Florence .Moxley and husband against G. W. Burkitt. From judgment for the plaintiff named, defendant 'appeals.
    Affirmed.
    A. R. & W. P. Hamblen, of Houston, for appellant.
    Jones & Jones, of Houston, for appellees.
   DANE, J.

This suit was brought by appel-lee Florence Moxley, joined by he^ husband, J.' T. Moxley, against appellant, G. W. Bur-kitt, to recover the value of certain well-boring machinery.

Mrs. Florence Bioxley alleged in her petition that on the 15th day of November, 1916, she was the owner of said machinery; that it was her separate estate; that appellant Burkitt on said date knew it was her separate property, and had knpwn such fact for a long time prior thereto, and with knowledge of such fact he seized said property and converted it to his own use, to her damage in the sum of $1,015, its alleged value.

G. W. Burkitt answered by general demurrer and general denial.

The cause was tried before the court without a jury and judgment was rendered in favor of Mrs. Moxley for the sum of $775. G. W. Burkitt has appealed.

At the request of appellant the trial court filed his findings of fact and conclusions of law as follows:

The property in controversy belonged to War-neke, plaintiffs first husband, and upon his death came into her possession as his widow, where it remained until her marriage to Moxley, her present husband. With the knowledge and consent of plaintiff, Bioxley used the property to engage in the business of well-boring, in which business he was associated with one Roberts. Moxley and Roberts, plaintiff not joining or consenting, and having no knowledge thereof, mortgaged the property to defendant, using the proceeds to pay business and individual debts, including community debts of plaintiff and Bioxley. Default having been made in payment of the mortgage debt, defendant took possession and caused the property to be sold under foreclosure of the lien thereof. The testimony does not show whether Warneke bequeathed the property by will, whether it belonged to his separate estate, or to the community estate of himself and plaintiff, or whether he was survived by children. The value of the property when possession was taken by defendant ..was $775. Prior to the sale under the mortgage, plaintiff demanded the property of the defendant.
Conclusions of Law.
The mortgage to defendant, executed by Mox-ley and Roberts, created no lien on the property.
The act of the defendant in taking possession of the property and causing it to be sold was a conversion thereof, rendering defendant liable for its value.

By appellant’s first assignment be insists that tlie trial court erred, first, in finding as a fact that the property in controversy belonged to Warneke, the plaintiff’s first husband, and that upon his death it came into her possession as his widow; second, in concluding that he (Burkitt) had converted any property of appellee; and, third, in rendering judgment against him in favor of ap-pellee for the value of said property: (1) Because there was no evidence to support the fact finding; and (2) because there is no evidence to support the conclusion of law reached by the court or the judgment rendered.

We cannot sustain either of the contentions of appellant. The fact finding complained of was supported by the following evidenbe:

James Moxley testified:
“My name is James G. Moxley. I am the husband of Blrs. Bioxley, who has just testified. We were married the 1st of September, three years ago. I have been living with my wife ever since we were married. I am acquainted with the machinery that is described in this petition here, that is being sued for. I have heard the list of that machinery read. At the time I was married this machinery was located down there at 1010 Chenevert, where the old shop used to be. It was my wife’s property at that time.”
Again:
“Blr. Roberts and I gave a mortgage on part of this rig. The mortgage we gave was on all the property my wife is suing for here.”
Again:
“I told Mr. Burkitt that this was my wife’s property; that was mentioned up there that part of it was, that morning I signed the mortgage, and he said, T don’t care anything about that: go ahead and do the work, and that part will be all right.’ ”
Appellee Mrs. Moxley testified:
“I have alleged here that I am the owner of certain well-boring machinery. * * * This property you described belonged to me before I married Mr. Moxley. I didn’t buy or pay for any of this property after I married Blr. Biox-ley.”
Again:
“As to where I got this property, why, it is from my husband’s estate that is dead, Blr. Warneke.”

We think the testimony quoted is sufficient to support the finding of the court that the property in controversy belonged to Wameke, the deceased husband of Mrs. Moxley, and that after his death it became her property.

While the court in its conclusions of fact announced upon sufficient evidence that the property had belonged to Warneke, plaintiff’s previous husband, it was not a necessary finding of fact. It was the uncontroverted evidence that the property belonged to and was claimed by Florence Moxley at the time of her marriage, and continued to be her property to the day of its conversion by appellant. It was not necessary to show from what source she acquired the property; it was enough to show that it was her sepa*rate property, and, having done so, it was sufi ficient to support the judgment that was rendered.

By appellant’s second assignment he insists that the trial court erred in its conclusion of law that the mortgage executed by Mr. Moxley and Mr. Roberts upon the property involved to appellant did not create a lien on the property, though it be found to be the separate property of Mrs. Moxley, first, because Mrs. Moxley knew that her husband, J. T. Moxley, was engaged in the business of boring wells as a partner with Roberts; and, second, because a part of the money obtained on the mortgage to Burkitt was used in community debts of Mrs. Moxley and her husband, J. T. Moxley. »

Appellant’s only proposition under this assignment is that as appellee, Mrs. Moxley, permitted her husband to have the management and control of her separate personal property, and, as he dealt with innocent third persons as the owner of the property, she was estopped to set up claim as against such person.

The proposition cannot 'be sustained for two reasons: First, because the act of Mrs. Moxley in permitting her husband and his partner, Roberts, to use her property in boring wells in the same manner as they would had the property belonged to them, did not have the legal effect to estop her from claiming her property as against Burkitt, who accepted a mortgage from Moxley and Roberts upon the same to secure his debt .against her husband and his partner, Roberts. She had the right to either lease or loan her property to these parties, and by doing so, if she did, she did no act constituting an estoppel in favor of Burkitt. We know of no law that would require her to give notice to the world that the property used by her husband was her separate property, so as to protect it from seizure and sale for the debts of the husband, nor has appellant cited any authority so holding. We do not think that the fact that the law now gives her the control and management of her separate property would require her to give notice to those who might credit her husband, so as to protect such property against seizure and sale for the payment of the husband’s debts (Le Gierse & Co. v. Moore, 59 Tex. 470); and, second, because there was testimony given in evidence which, if believed by the trial court, was sufficient to authorize the rendition of the judgment which was rendered, upon the theory that appellant was told that the property -belonged to Mrs. Moxley before he accepted the mortgage. The credibility of the witnesses was for the trial court to pass upon and not for this court.

The third and last assignment, insisting that the evidence shows that the appellee could not have had more' than a one-third interest in the property, is fully answered by what has been said with reference to the first assignment. It is therefore overruled.

The judgment of the trial court is affirmed. Affirmed.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      d&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    HENSON v. C. C. SLAUGHTER CO.
    (No. 867.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 31, 1918.)
    1. Limitation of Actions i&wkey;6(10) — Change After Accrual of Cause of Action.
    As limitation laws relate to remedy only, and_ Legislature may increase or diminish the period of limitation, provided such change is made before the right has become barred under the pre-existing statute, the proviso to Acts 83d Leg. (1st Called Sess.) c. 27, § 1, amending Rev. St. 1911, art. 5695 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695), prevented bar of vendor’s lien notes executed subsequent to July 14, 1905, and maturing August 10, 1912, until four years after enactment of statute.
    2. Judgment <&wkey; 17(1) — Personal Service-After Amendment of Petition.
    Where original petition in suit to foreclose vendor’s lien did not ask for personal judgment against defendant, and there was no personal service after amendment, there could be no personal judgment.
    3. Limitation of Actions <&wkey; 17 — Nature of Action.
    Where a purchaser of land on August 10, 1907, as part of purchase price, gave three notes, due, respectively; in three, four, and five years, and his vendee in 1911 made agreement with then owner of notes whereby, in consideration of increased interest, notes were made payable August 10, 1912, four years statute would bar personal recovery in a suit on the notes, and not on the subsequent agreement, brought after August 10, 1916.
    Appeal from District Court, Midland County; Ohas. Gibbs, Judge.
    Suit by the C. C. Slaughter Company against H. L.-Wynne and another, in which J. E-. Henson was made a party defendant by' amendment to petition. From the judgment rendered, plaintiff and Henson appeal.
    Affirmed on Henson’s appeal.
    S. W. Pratt, of Stanton, and H. A. Leaver-ton, of Midland, for appellant.
    .Towne Young, of Dallas, for appellee.
   Statement of the Case.

WALTHALL, J.

On August 10, 1907, H. L. Wynne purchased from R. L. Slaughter a quarter section of land situated in Martin county, Tex., and as part consideration therefor executed and delivered to Slaughter his three promissory notes, each in the sum of $260.66, and due, respectively, in three, four, and five years, each bearing 6 per cent, interest from date, and payable at Midland, Tex., and to secure same a vendor’s lien was retained and expressed in the deed of- conveyance, and provided, further, that a failure to pay the notes or any of them when due, or any installment of interest due on any or all of the notes, at the election of the holder, would mature the notes. Attorney’s fees, in the event of suit, Were also provided in the notes.

H. N. Garrett, about September 11, 1908, purchased the land from Wynne. O. O. Slaughter Company having become the owner of the notes, an agreement was entered into between Garrett and C. C. Slaughter Company, in consideration of an increased interest payment, by which the notes were made payable on the 10th day of August, 1912. The extension agreement was entered into in 1911. The notes not having been paid, C. C. Slaughter Company filed this suit against Wynne and Garrett on the 18th day of January, 1916, alleging the residence of each as unknown, and praying for judgment foreclosing the vendor’s lien on the land, as it existed on the 10th day of August, 1907, and, in the alternative, that its superior title be established and vested in the O. O. Slaughter Company. No service was ever had on Wynne. Personal service was had on Garrett on December 1, 1916. On January 27, 1917, Garrett conveyed the land to appellant J. E. Henson. On March 26, 1917, ap-pellee, C. C. Slaughter Company, amended its petition making Henson a party defendant, and praying for judgment foreclosing the vendor’s lien, and for personal judgment against each of defendants for the amount due on the said notes, attorney’s fees, and costs; or, in the alternative, that its superior title be established, and the title and possession to said land be vested ha plaintiffs; for damages, costs, and relief, bpth in law and equity. The alternative plea was later abandoned, plaintiff electing to take personal judgment and foreclosure of the vendor’s lien. Personal service was had on Henson on 31st of March, 1917. At the trial at the September term of court, 1917, no service having been had on Wynne, suit was dismissed as to him. Garrett filed no answer. Henson answered by general demurrer, general denial; that the four-year - statute of limitation barred the action as to him, both as to the debt and the lien; want of notice of the assignment of the superior title to the land by B. L. Slaughter to C. C. Slaughter Company; want of notice of the new contract of extension of due dates of notes. The case was tried without a jury. The court found that the total amount due on said notes, including principal, interest, and attorney’s fees, was $1,257.-58, and that said sum should be satisfied out of the foreclosure of the vendor’s lien on said land, and so decreed that Garrett and Henson go hence without day, and that all costs be taxed against the said land and recovered under the foreclosure sale. Plaintiff and Henson each excepted to the judgment and have perfected appeals.

Opinion.

Appellant Henson, in his first assignment and the propositions thereunder, insists that the court was in error in foreclosing the vendor’s lien on the land involved ip the suit, on the ground that the notes were barred by the four-year statute of limitation, and that, the vendor’s lien being only an incident to the notes, the lien was also barred. The contention made under this assignment was eyidently the law of this state under articles 5691 and 5695, Bevised Statutes 1911, and prior to the amendments to said articles by the Thirty-Third Legislature. At the regular session of the Thirty-Third Legislature (Acts 33d Leg. c. 123; Vernon’s Sayles’ Annotated Civ. St. 1914, arts. 5693-5695) those articles of the Bevised Statutes of 1911 were amended. We think we need not set out the amendment in full. At the first called session of the same Legislature, chapter 27, art. 5695, as amended at the regular session, heretofore referred to, was again amended (Vernon’s Saylep’ Ann. Civ. St. 1914, art. 5695). And the article as last amended, we think, disposes of the question against appellant’s contention. We quote only the portion of the article 5695, as thus amended, which is applicable to the facts here presented:

“And provided that the owners of all notes secured by deeds of trust or other liens and the owners of all vendor’s lien notes reserved in deeds of conveyance which were executed subsequent to July 14, 1905, shall have four years after this act takes effect within which they may obtain such recorded extension as herein provided for, or bring suit to enforce the lions securing them if same are valid obligations and not already barred by the four years statutes of limitation when this act takes effect, and if such debt is not extended of record, or suit is not brought within such four years or four years after they mature, they shall be forever barred from the right to extend such debt of record, or bring suit to enforce the lien securing the same.”

The facts bring this case clearly within the provisions of the portion of the amended article quoted. The notes are vendor’s lien notes reserved in the deed of conveyance; the notes and the deed were executed subsequent to 1905; the notes were not already barred by the four-year statute of limitations when the act took effect; the suit to foreclose the lien was brought within four years after the act took effect.

As said by Mr. Chief Justice Key in Cathey v. Weaver, 193 S. W. 490, limitation laws prescribing the time within which a particular right may be enforced relate to remedies only, and it is well settled that the Legislature has the power to increase or diminish the period of time necessary to constitute limitation, provided such change is made before the right has become barred under the preexisting statute of limitation, which was not the case here. The act quoted above extended the time within which the suit to foreclose the lien could be brought to four years after the act took effect, and the suit was filed and service had within that time. In addition to the case of Cathey v. Weaver, supra, discussing the application of the amended articles referred to above, we cite Barger v. Brubaker, 187 S. W. 1025; McCutcheon & Church v. Smith, 194 S. W. 832; Tullos v. Mayfield, 198 S. W. 1073; Key v. Jones, 191 S. W. 736; L. C. Denman Co. et al. v. Standard Savings & Loan Association, 200 S. W. 1109; Clark v. Mussman, 203 S. W. 380.

Appellee, C. C. Slaughter Company, assigns as error the finding by the trial court that limitation run against the notes sued on until November 24, 1916, the date of the issuance of citation, the suit having been filed January 18, 1916. As a ground for the holding complained of, the court found that about the time of the filing of the suit the plaintiff, through its attorney, requested the clerk not to issue citation until further notice, and that no request was made for the issuance of citation until the 24th day of November, 1916. It is claimed that there was no evidence upon which the court could base its finding that such request was made to the clerk. We think we need not quote the evidence. While the evidence offered might have reference to the issuance of the citation by publication applied for, we think it also could have embraced citation for personal service. We cannot say that the court was in error in the finding. So holding, the court refused to render personal judgment against Garrett and appellant Henson; the notes becoming barred under the four-year statute on the 10th day of August, 1916. Apart from that, when Garrett was served with citation, appellee had not asked for personal judgment against him, and he was not served with citation after amendment asking for personal judgment. As to Henson it is not alleged that he assumed the payment of the notes. The assignment is overruled.

The above holding necessarily disposes of appellee’s second and third assignments. The suit was based on the notes, and not on the promise of Garrett to pay an increased rate of .interest on the notes as a consideration for an extension of the due dates on two of the notes. The due date of all of the notes by the agreement was fixed to be on the 10th day of August, 1912. The statute barred a personal recovery as to all parties on the notes after August 10, 1916. For reasons stated, we think the court was not in error in not rendering personal judgment against either of the parties defendant.

Binding j?.o error, the case is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    DELAWARE UNDERWRITERS et al. v. BROOK.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 23, 1918.
    Rehearing Denied Nov. 20, 191S.)
    1. Appeal and Error &wkey;>1050(l) — Harmless Error — Facts Otherwise Established.
    An assignment of error to the introduction of a letter cannot be sustained, where another letter, written by the same person to the same addressee, containing practically the same matters objected to, was read to the jury without objection.
    2. Insurance &wkey;>576(l) — Appraisals—Waiver by Insurer.
    Where fire policy required appointment, in case of disagreement, of two disinterested appraisers, who should choose a third, such clause being for the benefit of the insurer, it waived such benefit _ by appointing an appraiser, who was not disinterested, but was in its employment, and it was no defense that the insured also appointed an interested appraiser.
    Appeal from District Court, Bexar County ; J. T. Sluder, Judge.
    Action by O. B. Brock against the Delaware Underwriters and another. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    John Sehorn, of San Antonio, for appellants.
    T. G. Jackson and Ingrum & Robinson, all of San Antonio, for appellee.
   FLY, O. J.

This is a suit to recover insurance on a certain house, alleged to have been destroyed by fire, instituted by appellee against Delaware Underwriters and West-chester Fire Insurance Company; a trial of the same by jury résulting in a verdict and judgment for $2,500 in favor of appellee. The policy was for $2,500.

Appellants pleaded a general denial, and specially pleaded that appellee should not recover, because he had not complied with a clause in the policy 'as to submitting any cause of disagreement as to amount of the loss to two competent and disinterested appraisers, who should appraise the loss and in case of their disagreement name an umpire to settle it. It was alleged that a disagreement had arisen as to the amount of the loss between appellants and appellee, and each of them selected an appraiser, which the other declared was not competent and disinterested, and the arbitration never took place. The jury found that neither the appraiser selected by appellee nor the one selected by appellants was competent and disinterested, but also found that appellee did not refuse to submit the difference between the parties to the appraiser chosen by appellants, and that appellants refused to submit the differences to the appraiser selected by appellee,

The evidence in the case shows that, while the appraisers chosen by the parties were not competent and disinterested, the appellee offered to set aside Ms choice and choose another appraiser, if appellants would choose another and different appraiser, and that offer was refused by appellants.

The first and second assignments are overruled. The first assignment of error assails the action of the court in permitting Schmitt to testify that appellant objected to Phelps acting as an appraiser, because he did not believe he was fair, but would work for the man who chose him. The statement contains only the bill of exceptions, but fails to show that Schmitt testified to the matters of which complaint is made. The statement of facts shows that Schmitt did not testify as represented in the bill of exceptions, but denied that any such conversation took place. The second assignment of error complains of 1he introduction by appellee of a letter written by the attorney of appellee to Schmitt, the agent of appellants; but it cannot be sustained, because another letter written by the attorney to the agent, containing practically the same matters objected to in the other letter, was read by appellee to the jury without objection on the part of appellants.

The third and fourth assignments of error claim that it was neither pleaded nor proved that the appraiser selected by appellants was not competent and disinterested. In the supplemental petition appellee pleaded this fact, and there was evidence to sustain such allegation. The testimony showed that he was used by appellants in a number of cases as an appraiser and was paid by them the sum of $10 a day. Brocjk was permitted to state, without objection, that the appraiser had been represented to him as not fair. The letter introduced, without objection, also tended to show that Phelps was not disinterested, but seemed to be regularly in the employ of appellants.

The evidence tends to show that the failure to have an appraisement of the damages was the fault of appellants rather than of appellee. He offered to appoint another appraiser, if appellants would appoint another; but this they refused to do. They had one man to whom they wished the differences to be submitted, and he not disinterested. The evidence tends to show that appellants were not acting in good faith in insisting bn an appraiser who naturally was not disinterested, but biased in their favor. The clause as to appraisers was inserted in the policy wholly for the benefit of the insurance companies, and any attempt on their part to act oppressively or in bad faith in connection therewith is a waiver of the benefit. When the insurer demands an appraisal, it must in good faith nominate a competent, disinterested person as appraiser, and -when it fails to do this the refusal of the insured would be no defense for the insurer. Insurance Co. v. Vallandingham, 116 Ky. 287, 76 S. W. 22, 105 Am. St. Rep. 218; 14 R. C. L. § 528.

The fifth, sixth, seventh, eighth, and ninth assignments of error are overruled. The house was shown to be a total loss.

The judgment is affirmed.
      <gz»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    HOWARD et al. v. BARTHOLD & CASEY, Inc.
    (No. 6093.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1918.)
    Venue &wkey;>32(2) — County of Domicile-Waiver of Right.
    In view of Rev. St. 1911, art. 1830, subd. 5, parties to a bond had the right to waive the privilege of being sued in the county of their domicile, and were not precluded therefrom by article 2008.
    Appeal from District Court, Duval County; V. W. Taylor, Judge.
    Action by Barthold & Casey, Incorporated, against J. R. Howard and others. Judgment for plaintiff, and defendants appeal. ■
    Affirmed.
    C. C. Forry, of McAllen, and Tharp & Tharp, of Houston, for appellants.
    R. W. Franklin, of Houston, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee, a private corporation, against J. R. Howard, a building contractor, as principal, and E. B. Ramsey and A. E. Stimson, as sureties, on a certain bond given by Howard to the board of trustees of the San Diego independent school district, to erect “a certain three-story brick public school building,” to recover a balance of $1,655.80 due by said Howard for material used in the erection of a building for said trustees. Appellants .pleaded their privilege to be sued in Harris county, Tex., which, upon a full hearing, was denied by the court. From that order this appeal has been perfected.

' The bond was drawn under the provisions of article 6394f, Rev. Stat. (Vernon’s Sayles’ Ann. Civ. St. 1914), by which the bond is made to inure to the benefit of any laborer or furnisher of material for certain public buildings, and full provision is made in the succeeding articles of the chapter for suing and recovering on the bond. The bond has this provision:

“It is further agreed and understood by and between the parties, both principal and sureties, that in case of litigation on this bond, or in case of breach of said contract in .any respect, or in any event the said trustees of San Diego independent school district deem it necessary to institute suit on this bond, or on said contract, all such suits may be instituted and prosecuted to final judgment against any and all of the parties hereto in any court of Duval county, Texas, which would in the absence of any statute fixing the venue of such suit, have jurisdiction of the same, and all parties hereto, both principal and sureties, waive the right, if any they have, to have suit or suits instituted and prosecuted in any other county than the said Duval county, Texas.”

The provisions of the bond bring this case fully within the purview of exception 5 to article 1830, Rev. Stats., to the effect that a person may be sued in any particular county where he has contracted to perform an obligation ; but, if not, the parties have fixed the venue by contract in a certain county, which they had the power to do. Parties undoubtedly have the power to waive the right to be sued in the county of their domicile, and there is ho provision of the statute denying the right to make such waiver in advance of the institution of suit. The right is a personal one, and can, of course, be waived or contracted away before or after suit is instituted.

Article 2008, Revised Statutes, cited by appellants as prohibiting waiver of the privilege to be sued in a certain county before suit is instituted, has no application whatever to venue, but applies to acceptance of service and waiver of process in a contract. It is apparent that the reasons for the prohibition in article 2008 would not have any cogency in the case of privilege to be sued in' the county of a person’s domicile. The other authorities cited have no more pertinency or applicability than has the statute. The authorities in Texas fully sustain the right to waive privilege to be sued in the county of domicile in advance of the institution of any suit. Board of Trade v. Cooke, 6 Tex. Civ. App. 324, 25 S. W. 330; Whisenant v. Schawe, 141 S. W. 146; Plow Co. v. Biggerstaff, 185 S. W. 341.

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


author: GRATES, J.

text:
    HOUSTON HARBOR SALES CO. et al. v. LEVAND.
    (No. 7619.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 7, 1918.)
    1. Courts <&wkey;121(3) — County Court — Amount in Controversy.
    In a suit to foreclose a chattel mortgage in county court, the amount in controversy is the alleged value of the property.
    2. Appeal and Error &wkey;»1166 — Reversal or Dismissal — Failure to Show Jurisdiction.
    Where neither pleadings nor evidence in a chattel mortgage foreclosure in a county court showed the value of the property, an appeal will be reversed, with instructions to amend, and will not be dismissed, on the ground that no jurisdiction is shown.
    Appeal from Harris County Court; Roy F. Campbell, Special Judge.
    Suit by M. Levand against the Houston Harbor Sales Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
   GRATES, J.

This suit was originally filed in the county court of Harris county to collect an alleged debt of $125, and to foreclose a chattel mortgage upon, a secondhand automobile securing it. After considering the pleadings alone, no evidence having been offered, the court rendered judgment in ap-pellee’s favor against both appellants for the amount sued for, together with foreclosure upon th’e automobile, from which the Sales Company and Adkins appeal.

There was no allegation, in the pleadings of any of the parties as to the value of the automobile, nor, as stated, any evidence upon that or any other matter introduced.

In. these circumstances, appellants have filed a motion in this court asking that the judgment be reversed and the cause ordered dismissed, on the ground that the county court had no original, nor has this court any appellate, jurisdiction over the cause. Having taken the motion with the case and examined the entire record presented, it is found that the facts as to the allegations of the petition and the absence of any evidence as to the value of the automobile were as stated. Since, in a suit to foreclose a chattel mortgage, the amount in controversy is the alleged value of the property (Stricklin v. Arrington et al., 141 S. W. 189 [2]), it does not affirmatively appear here that the county court had jurisdiction to render the judgment, which condition necessitates a reversal; but as there is mere silence as to the value of the automobile, and n.o showing otherwise that the court below would not have had jurisdiction, if its value had been alleged, we think the proper practice is to reverse the judgment and remand, the cause, to afford opportunity for amendment of the pleadings in that respect. Bates v. Hill, 144 S. W. 288; Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618; Hamilton v. Hannus, 185 S. W. 938. It is accordingly ordered that the judgment be reversed, and the cause remanded, with instructions to the trial court to dismiss the ease, unless by proper amendment of his petition in respect to the value of the automobile, the appellee brings the case within the jurisdiction, of that court.

Reversed and remanded, with instructions.


author: JENKINS, J.

text:
    SOUTHERN SURETY CO. v. HARTMAN.
    (No. 5958.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1918.
    Rehearing Denied Nov. 20, 1918.)
    1. Appeal and Error &wkey;>263(3) — Exception to Special Charge.
    Failure to except to court’s refusal to give special charge requested was waiver of right to assign error thereto.
    2. Appeal and Error &wkey;>263(l) — Failure to Except to Charge.
    Failure to except to the general charge of court does not preclude court on appeal from considering appellant’s objections thereto.

      3. Insurance i&wkey;451(l)—Accident Policy-Limiting Clause.
    Clause in accident policy providing that policy did not cover railroad employés while on duty near track is not inconsistent with caption providing insurance against accident “to the extent herein provided,” and precluded recovery under policy for accident to flagman while on duty at railroad crossing.
    Appeal from McLennan County Court; E. M. Mann, Special Judge.
    Action by C. H. Hartman against the Southern Surety Company. From, judgment rendered, defendant appeals.
    Reversed and rendered. .
    Jno. T. Suggs, of Denison, and J. D. Williamson and Allan V. McDonnell, both of Waco, for appellant.
    Forrester & Stanford, of Waco, for appellee.
   JENKINS, J.

This was a suit by appellee to recover of appellant upon an accident policy. The caption of the policy is as follows:

“Universal Limited $7.50 Accident and .Sickness Policy, providing indemnity for loss of life, limb, limbs, sight or time, by accidental means or for loss of time by sickness, to the extent herein pi-ovided.”

The policy set out numerous and various diseases and. sicknesses insured against. Clause D was the limiting clause, reading as follows:

“This policy does not cover railroad, news company or government mail service employés while on duty, excepting those whose duties call them solely in the office and away from track, train, yard, roundhouse and repair shop; or persons in mines or handling explosives; or aeronauts.”

Appellee’s occupation is given as flagman at railroad crossings, and he was engaged in that occupation at the time his application for the policy was made. He was injured while in that occupation, by an automobile running against him. The court peremptorily instructed the jury to find in favor of ap-pellee.

Appellant’s first assignment of error is that the court erred in refusing to give the peremptory instruction requested by defendant, that the plaintiff, C. H. Hartman, take nothing by his suit.

The second assignment is that the court erred in overruling defendant’s objections and exceptions to the court’s charge, and in giving the peremptory instruction for plaintiff.

Appellee objects to the consideration of each of these assignments, for'the reason that it is not made to appear by appellant’s brief that it excepted to such action by the court.

We sustain this objection as to the first assignment. Failure to except to the giving of the special charge requested was waiver of all objections to the action of the court in refusing the same.

As to the second assignment, it has been held by our Supreme Court that it is not necessary to except to the action of the court in giving a general charge. For which reason, we have considered this assignment. Ry. Co. v. Dickey, 108 Tex. 126, 187 S. W. 184.

It is the contention of appellee that clause D is contradictory of other portions of the policy, and that, inasmuch as appellant knew at the time it insured appellee that he was engaged in employment on a railroad track, this clause cannot be considered.

There is no contradiction between the terms of the policy, which insures appellee against all injuries by accident except those excluded by the plain terms of the policy. The policy was valid as to all accidental injuries which might have been received by appellee, except those while engaged in his duty under his employment on the railroad track. It having been shown, without contradiction, that he was so engaged at the time he received the injury, to recover for which this suit was brought, we sustain appellant’s second exception; and reverse this case, and here render the judgment which the trial court should have rendered under the undisputed evidence, to wit, that appellee take nothing by his suit, and that appellant recover all costs in this court, as well as in the court below.

Reversed and rendered.
      ©c»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. v. WHITFIELD.
    (No. 5966.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 6, 1918.)
    1. Evidence <&wkey;150—Result or Experiments.
    In action for death of operator of motorcar, struck by defendant’s passenger train on a downgrade curve, upon which deceased had stopped, it was error to exclude evidence of experiments under the same conditions, showing the distance at which a man sitting on the end of a tie at the place of the accident could be seen by a person in the locomotive cab.
    2. Railroads <&wkey;400 (14)—Personal Injury —Discovered Peril.
    In an action for death of the operator of a motorcar, struck by defendant’s train, it was not error to submit the issue of discovered peril, notwithstanding evidence that the engineer did not see deceased until too late was undisputed, since the jury might not have believed it.
    3. Negligence <&wkey;136(14) — What Constitutes—Question for Jury.
    Whether doing or failing to do any particular act is negligence is for the jury, unless it be one commanded or forbidden by law, or where the evidence is so conclusive that the act done or omitted was negligence that reasonable minds could come to no other conclusion.
    4. Railroads &wkey;312(8)—Personal Injury-Warning.
    Where the killing of operator of motorcar by a passenger train did not occur at' a crossing, and where deceased was not on the road when hurt, the statute requiring a whistle to be blown when approaching a crossing has no application.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.

      Action by Ruby Whitfield against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Nat Harris and Allan D. Sanford, both of Waco, for appellant.
    T. P. Stone, Cross & 'Rogers, and W. E. Terrell, all of Waco, for appellee.
   JENKINS, J.

This suit was brought by appellee to recover damages on account of the death of her husband, Will Whitfield, alleged to have been occasioned by the negligence of appellant. 1

Deceased had been to Waco, and had returned to South Bosque on a motorcar. About a half mile before reaching South Bosque his hat blew off. He went back to look for it. Shortly after this he was struck by appellant’s passenger train, and was injured so that he died soon thereafter.

The place where deceased was struck was on a curve and on downgrade. It was shown that the train could not have stopped at that place under about 450 feet. The conductor testified that he first discovered the deceased when he was about 60 or 70 feet from him. Appellant sought to prove by several witnesses, who made the experiment under the same conditions as existed at the time deceased was injured, that a man sitting on the end of a tie at the place where the injury occurred could not have been seen by a person in the cab farther than ISO feet. The court refused to permit this testimony to be given to the jury. This. constituted reversible error.

It is permissible to prove the existence or nonexistence of a fact by experiments made for that purpose under circumstances substantially the same as those existing at the time of the occurrence or nonoccurrence of the alleged fact. Railway Co. v. Ramsey, 43 Tex. Civ. App. 603, 97 S. W. 1067; Railway Co. v. Olds, 112 S. W. 787; Baker v. Loftin, 198 S. W. 159; Byers v. Railway Co., 94 Tenn. 345, 29 S. W. 128; Harrison v. Railway Co., 93 Miss. 40, 46 South. 408; Johnson v. Railway Co., 80 Kan. 456, 103 Pac. 90; Fisher v. Insurance Co., 124 Tenn. 450, 138 S. W. 316, Ann. Cas. 1912D, 1246; Railway Co. v. Hudson, 2 Ga. App. 352, 58 S. E. 500; Armsbary v. Railway & Light Co., 78 Wash. 379, 139 Pac. 46; Young v. Clark, 16 Utah, 42, 50 Pac. 832; Beonard v. Railway Co., 21 Cr. 555, 28 Pac. 887, 15 L. R. A. 226; 10 R. C. L. §§ 188-190, 5 Enc. Ev. 473 et seq.; Freeman v. Belinoski, 152 S. W. 882.

We overrule appellant’s assignment to the effect that.it was error to submit the issue of discovered peril, for the alleged reason that the undisputed evidence showed that the engineer did not see the deceased until it was too late to stop the train before striking him. It is true that the engineer so testified; but he was an interested witness, and the jury may not have believed his testimony. If the rejected testimony had been admitted, the appellant’s proposition would be correct.

The charge of the court with reference to failure to blow the whistle or ring the bell was upon the weight of the evidence. The effect of the charge upon this issue was to tell the jury that such failure was negligence.

Whether doing or failure to do any particular act is negligence is for the jury, unless it be one commanded or forbidden by law, or the evidence is so conclusive that the act done or failed to be done was negligence that reasonable minds could come to no other conclusion. Railway Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Houston Electric Co. v. Nelson. 34 Tex. Civ. App. 72, 77 S. W. 978; Railway Co. v. Grubbs, 7 Tex. Civ. App. 53, 26 S. W. 326; Scott v. Railway Co., 93 Tex. 625, 57 S. W. 802; Traction Co. v. Levyson, 52 Tex. Civ. App. 122, 113 S. W. 572; Railway Co. v. Wafer, 62 Tex. Civ. App. 74, 130 S. W. 713; Boldt v. Traction Co., 148 S. W. 832; Mfg. Co. v. Femelat, 35 Tex. Civ. App. 36, 79 S. W. 872; Heldt v. Webster, 60 Tex. 209; Railway Co. v. West, 174 S. W. 290.

As the injury did not occur at a crossing, and as deceased was not on a road when he was injured, the statute requiring a whistle to be blown when approaching such crossing has no application in the instant case. Railway Co. v. Saunders, 101 Tex. 257, 106 S. W. 321, 14 L. R. A. (N. S.) 998, 16 Ann. Cas. 1107; Railway Co. v. Shoemaker, 98 Tex. 455, 84 S. W. 1049; Railway Co. v. Mallard, 60 Tex. Civ. App. 199, 127 S. W. 1118.

For the reasons stated, the judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.
      <S^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SIDDALL v. HUDSON.
    (No. 7505.)
    (Court of Civil Appeals of Texas. Galveston.
    June 25, 1918.)
    Navigable Waters <S=»45 — Abandoned Bed of Navigable Stream — Effect on Abutting Property.
    Where navigable river, during overflow, left its old bed and formed a new one, title to old bed remained in state, and boundary, lines of abutting property remained the same; the change being the result of an avulsion, though only main body of river changed channel during overflow, and drying up of old bed was gradual process.
    On Supplemental Motion for Rehearing. Motion granted.
    Former judgment (201 S. W. 1029) set aside, and judgment of lower court affirmed.
   GRAVES, J.

The supplemental motion for rehearing presented in this cause by the ap-pellee is so convincing that not only has it been permitted to be filed, and consideration given it, but lias impelled the conclusion tbat it ought to be granted.

In disposing of the second ground presented in the original motion for rehearing (Siddall v. Hudson, 201 S. W. at page 1032), it was suggested that appellant’s answer, the sole source of any showing that there might be other claimants of the land sought to be surveyed, probably did not disclose sufficient facts concerning the ownership of the abutting lands, including the names of the claimants and the nature of their claims, to justify a reversal because they were not made parties to the proceedings. A re-examination of that pleading has satisfied us that it did not, from which it follows that a reversal could not be ordered upon that ground, and paragraph 1 of our original opinion is accordingly so modified. Byrne v. Robinson, 103 Tex. 20, 122 S. W. 256; State v. Goodnight, 70 Tex. 682, 688, 11 S. W. 119; Adams v. Casey-Swasey, 15 Tex. Civ. App. 379, 39 S. W. 654.

Upon the second and controlling question discussed originally and on the first rehearing, the effect of our conclusion upon which the decision, turned was that the abandonment of the original channel of the river and its conversion into the neck of terra firma sought to be appropriated as state land was not the result of an avulsion, but on account of its gradual emergence was to be considered more in the nature of an accretion or re-liction; and a summary of the facts inducing it was given in the opinion on rehearing. 201 S. W. 1031. Since our opinions were written, however, the Supreme Court of the United States, in the very recent case of State of Arkansas v. State of Tennessee, 246 U. S. 158, 38 Sup. Ct. 305, 62 L. Ed. 638, has held that the precise state of facts we thus found to have supervened upon the changing of the main, body of the flowing stream during an overflow is not to be regarded as constituting the process known as accretion, but as an ultimate effect of the first sudden and rapid change in channels; that is, of an avulsion. We quote as follows from the court’s opinion:

“If the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel. * * * An avulsion has this effect, whether it results in the drying up of the old channel or not. So long as that channel [referring to the abandoned channel of the Mississippi river] remains a running stream, the boundary marked by it is still subject to be changed by erosion and accretion ; but, when the water becomes stagnant, the effect of these processes is at an end. The boundary then becomes fixed in the middle of the channel, as we have defined it, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores, but as an ultimate effect of the avulsion.”

To the same effect are the following authorities: Stockley v. Cissna, 119 Tenn. 135, 104 S. W. 797; State v. Muncie Pulp Co., 119 Tenn. 47, 104 S. W. 456; 29 Cyc. 350, “Navigable Waters,” note 78.

Little else need be said. This authoritative pronouncement of the highest court in the. land upon the controlling question presented in the case before us is directly counter to our own former determination of it, a condition we are unwilling to permit to stand, notwithstanding petition for writ of error to this court in this cause has already been filed in the Supreme Court of Texas.

We accordingly grant the supplemental motion of appellee for rehearing, reverse our prior holding that the “old river” here sought to be surveyed was not state land, set aside our previously entered judgment reversing and rendering this cause for appellant, and order the judgment of the court below affirmed.

Supplemental motion of appellee for rehearing granted, former judgment of this court set aside, and judgment of lower court affirmed.
      tg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON & T. C. RY. CO. v. ROBERTS et al.
    (Nos. 7024, 7469.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 17, 1918.
    Appellant’s Second Motion for Rehearing Denied Nov. 14, 1918.)
    Damages &wkey;>186 — Loss op Services op Child —Burden op Proof.
    In parent’s action for loss of services during minority of their ten year old boy injured by defendant’s train, it was not incumbent on parents to prove boy would have worked and earned money for them, but only that he had capacity and ability.
    On motion for rehearing. Motion granted, and judgment below affirmed in full.
    For former opinion, see 201 S. W. 674.
   GRAVES, J.

Believing that the part of our former 'judgment reversing and remanding this cause for another trial as to the parents, appellees Mary and Isaac Roberts, upon the one issue of what amount of money, if any, their minor son would have contributed, or would have been worth to them during his minority (201 S. W. 674), was error, despite the fact that applications for rehearing on their behalf, as well as on that of the railway company, were some months since overruled and writ of error from the Supreme Court applied for by appellant, this court now grants the motion of these appellees for a rehearing upon that issue, and affirms the trial court’s judgment in full; it is felt that no question ought ever to be considered settled -in this court until it is settled right, at least so long as the court’s power over its judgments subsists.

Accordingly, prior to adjournment of the term at which the first disposition of the cause was made, an order was entered va-eating tlie preceding order overruling ap-pellees’ mutton for rehearing, and notice thereof given appellant, in order that opportunity be afforded it for further answering the view that the proof in the record was sufficient to support the judgment in favor of Mary and Isaac Roberts also; no such answer has been presented, and the court is convinced that none can be successfully made.

We now think our former holding that the proof did not furnish an adequate basis on which the jury could reasonably estimate the money value of the boy’s services to his parents during the balance of his minority proceeded from a somewhat erroneous theory. The question is not one of whether or not the boy would have in fact labored and earned money for his parents, but rather of his capacity and ability to do so, and the fact that this capacity had been by his wrongful injury to some extent, at least, diminished. The parents had the legal right to both demand and command the services of their child until he attained his majority. While they might never have exercised that right, or indeed might have voluntarily released it, still it was not the province of the wrongdoer to offer such possibilities as a defense against its wrongful invasion of their right. It was not incumbent upon them to prove that the boy would have worked and earned money for them, but only that he had the capacity and ability, or as our Supreme Court, in Railway v. Measles, 81 Tex. 474, 17 S. W. 124, puts it, that “he was both willing and able to work.” A fact in this record not recited in our former opinions was that this boy had been sent by his mother from his home to the store to buy some onions for her, and it was in performance of this errand that he was hurt. This brings the fact findings here well within the rule applied in the Measles Case and in Brunswig v. White, 70 Tex. 504, 8 S. W. 85. In the latter case the Supreme Court said:

“When, from the age and undeveloped state of the child, any estimate of value of the services until majority would be matter of opinion in which no particular * * * knowledge in way of expert testimony could be procured better than the judgment and common sense of the ordinary juror called to the duty of determining such value, then, upon such testimony, the sound discretion of the jury can be relied on to determine the value without any witness naming the sum.”

It is not thought necessary to pursue the subject further, but the following additional authorities are cited as substantiating the conclusion stated: Railway v. Lacy, 86 Tex. 244, 24 S. W. 269; Texarkana & Ft. S. R. Co. v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 375, at page 377; Railway v. Johnson, 37 S. W. 771, at page 775.

The motion of appellees for rehearing has been granted, and the judgment of the court below ordered affirmed in full.

Granted, and judgment affirmed in full..
      ,S=»For other eases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: FRY, C. J.

text:
    ÆTNA INS. CO. v. RICHEY.
    (No. 6086.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 13, 1918.)
    1. Principal and Agent <&wkey;134 — Repbe-senting Conflicting Interests.
    An agent may not, in same transaction, be at same time the agent of two parties whose interests conflict, and where agent, without knowledge or consent of principal, undertakes services for third party which may conflict with services for original principal, such undertaking will not bind the principal.
    2. Frauds, Statute of &wkey;>44(l) — Contract Not to be Performed Within Year — Agreement to Renew Insurance Policy.
    Parol agreement by insurer, made at time of renewing policy for three-year term, to renew policy upon expiration, was unenforceable under Rev. St. 1911, art. 3965.
    3. Insurance <&wkey;145(2) — Agreement to Renew — Authority of Agent.
    Where insurer’s agent in renewing policy promised insured that he would attend to insurance of insured’s property, such promise did not bind insurer to renew upon expiration, in absence of showing that agent had been authorized to bind insurer by such agreement.
    Error from District Court, Dimmit County; J. F. Mullally, Judge.
    Action by D. 0. Richey against the ¿Etna Insurance Company. Judgment for plaintiff, and. defendant brings error.
    Reversed and rendered.
    Thompson, Knight, Baker & Harris, and Will O. Thompson, all of Dallas, for plaintiff in error.
    Ira O’Meara, of Raredo, and N. A. Rector, of Austin, for defendant in error.
   FRY, C. J.

This is a suit by appellee to recover of appellant the sum of $2,000, alleged to be due by appellant as insurance on a house and furniture belonging to appellee which was destroyed by fire on March 19, 1916. The cause was submitted to a jury, and upon the verdict a judgment was rendered in favor of appellee for $2,015.52.

The evidence shows that on November 2, 1909, appellee obtained insurance for his house while it was being constructed with the understanding that when the house was completed appellant should issue a policy on it and the furniture for $2,000. That policy was issued through Willis AY. Barker, agent for appellant, for three years, and expired on December 4, 1912. The agent did not issue another policy until December 25,1912. That policy expired on December 25, 1915, and ap-pellee did not ask for the issuance of another policy, and none was issued by appellant. Nearly three months after the expiration of the last policy, the house and furniture were destroyed by fire. Appellee testified that when the last policy was obtained on December 25, 1912:

“I took notice that he had let it lapso, and I cautioned him very particular about letting it lapse, and told him that I was cranky about insurance, and to be more careful and see that it did not run out; that I was depending on him to keep it in force. I do not remember just exactly what he said in reply to that, but then he agreed to it. He said, 'Yes,’ or he would look after it. The substance of what Mr. Barker said in reply was that he would look after it, yes; he agreed to it, or X would not have left it in his hands.”

That is all the testimony adduced to sustain the allegation:

“That there was a parol contract of insurance existing at the time his house and furniture burned; that said parol contract existed between the plaintiff and the company’s duly authorized agent.”

And appellee further alleged:

“That there was always from the date of the first contract of insurance mentioned herein a mutual understanding that the said agent, Willis Wi Barker, was,to keep plaintiff’s property mentioned herein insured and protected against loss by fire, and that plaintiff has always been ready and willing to pay for said protection.”

Appellee clearly shows that he had attempted to make the agent of appellant his agent to represent him in keeping up insurance on his house and furniture, and there was evidence tending to show that he was acting as the agent of appellant when he agreed to serve appellee. There is nothing to indicate that it was within the scope of 1ns agency for appellant’ to attend to the insurance business of policy holders in the company, after the life of a policy had ended. It may not have been agreeable to appellant to reinsure appellee’s property, and there is no proof that appellant had any intimation of the agreement made by Barker to serve appellee, and certainly it could not be lawfully held liable for the breach of an unauthorized promise made by its agent.

It is practically the invariable rule that the agent may not, in the same transaction, be at the same time the agent of two parties whose interests may conflict, and if an agent of a party, without his knowledge or consent, undertakes service for another which may conflict with the service of his original principal, such undertaking will not bind the principal. Mechem on Agency, § 1206.

If appellant had made the parol agreement relied on by appellee, it was clearly obnoxious to the provision of the statute of frauds that no action shall be brought “upon any agreement which is not to be performed within the space of one year from the making thereof,” unless the promise or agreement or some memorandum thereof is in writing and signed by the party 'to be charged therewith or by some person lawfully authorized to sign the same. Rev. Stats, art. 3965. The oral contract relied on could not under any circumstances have been performed until the expiration of three years, for it did not call for any act on the part of the agent until after the expiration of the three-year policy issued on December 25, 1912. Light Pub. Co. v. Moore, 46 Tex. Civ. App. 259, 101 S. W. 867.

There was no evidence of a renewal of the policy, or even a promise on the part of the agent to renew it, and, if such promise had been made, it was not shown that the agent was authorized to make it. The allegations and proof, when given the greatest cogency possible, show nothing but a promise to see that the insurance of appellee’s property should be attended to, and if there was a breach of that promise it was upon the part of Barker and not of appellant. There was no contract upon the part of appellant to insure in the future, the only agreement sought to be proved being the individual promise of the agent. Westchester Fire Ins. Co. v. Robinson, 192 S. W. 793. The case cited is similar to this; the facts in that case, however, being more favorable to a recovery than in this.

There is no merit whatever in this case, disclosed by pleadings or evidence, and the court erred in not sustaining exceptions to the petition and in not instructing a verdict for appellant.

The judgment of the trial court is reversed, and judgment here rendered that appel-lee recover nothing by his action and pay all costs of this court as well as of the court below.

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


author: PHILLIPS, C. J.

text:
    McKENZIE et al. v. WITHERS et al.
    (No. 2543.)
    (Supreme Court of Texas.
    Nov. 13, 1918.)
    Courts <&wkey;107 — Decisions — Opinions op Commissions.
    The approval by the Supreme Court of judgments recommended by the Commission of Appeals merely adopts the view of the Commission as to the determination to he made of the ■cause, and is not an approval of the opinion in the particular case, or the reasons therein for the Commission’s conclusion.
    Suit by William Lindén, against Mrs. V. E. Withers and another to restrain an execution sale. An order was made dissolving temporary injunction, and writ of error brought by J. M. McKenzie and another, sureties on the injunction bond, was dismissed by the Court of Civil Appeals (152 S. W. €58; 153 S. W. 413), whereupon the sureties bring error.
    Reversed and remanded, in accordance with the recommendation of the Commission of Appeals (206 S. W. 503).
   PHILLIPS, C. J.

Under the Act of the Thirty-fifth Legislature (Acts 35th Leg. 4th Called Sess. c. 81) establishing a Commission of Appeals, this cause was heretofore referred to Section B o'f the Commission by the Supreme Court. It has been duly heard and considered by the Commission. 206 S. W. 503. Its report and conclusions upon the case embodied in a written opinion by Presiding Judge Montgomery, together with the record, have been fully examined by us and the judgment recommended by the Commission has our approval. The cause will be disposed of accordingly.

We take this occasion to announce that in causes referred to the Commission of Appeals, our approval of the judgment'recommended by the Commission is to be understood as having no further effect than to simply adopt the view of the Commission as to the determination to be made of the cause. ■ It is not to be construed as am approval by the Supreme Court of the opinion of the Commission in the ¡particular case, or the reasons given in the Commission’s opinion for its conclusion).

We have adopted this course in the interest of k prompt disposition of thei court’s docket. The Act does not in our opinion require the Supreme Court’s approval of the Commission’s opinion in causes referred to it and in, which the judgment as recommended by the Commission is adopted by the court. The approval by the court of the Commission’s opinions, in addition to the judgments recommended by it, would impose an extra duty upon the court and require a large part of its time. Under existing conditions, the proper •dispatch of the court’s business forbids our exercising a province in these cases not required by the Act.

In accordance with the report of the Commission, the judgment of the honorable Court of Civil Appeals in this cause is reversed and the cause is remanded to that court for disposition upon its merits.