author: RAINEY, C. J.

text:
    BURKES v. NORTHERN TEXAS TRACTION CO.
    (No. 7455.)
    (Court of Civil Appeals of Texas. Dallas.
    April 1, 1916.
    Rehearing Denied April 29, 1916.)
    1. Carriers <§=>347(10) — Carriage or PASSENGERS— CONTRIBUTORY NEGLIGENCE — WHAT Constitutes.
    Eor a passenger on a street car, after giving a signal to stop, to w.alk to the rear entrance and stand upon the steps while the car was moving slowly, does not constitute contributory negligence as a matter of law, precluding recovery, where, through a sudden jolt, the passenger was thrown from the car.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1355, 1356, 1386, 1402; Dec. Dig. <§=3347(10).]
    2. Trial <§=>253(4) — Carriage oe Passengers — Actions—Instructions.
    A passenger on a street car claimed that, having given the signal to stop, he repaired to the rear entrance and stood on the step waiting for car to stop, and was thrown from the car by sudden jerk. The court charged that if the passenger left a place of safety while the car was moving and before it had stopped, proceeding to the step, and, though both hands were incumbered,. attempted to alight before the car stopped, then if an ordinarily prudent person would not have so acted, his act was negligence which would bar recovery regardless of any other negligence. Held that, as the court nowhere submitted the case whether the operatives of the car were negligent in causing it to suddenly jerk and throw him from the step, the charge was erroneous, as taking from the jury the case of negligence charged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613, 616; Dee. Dig. <§=>253(4).]
    3. Trial <§=>252(8) — Instructions—Evidence.
    In a personal injury action, where the evidence showed that the swelling and discoloration of plaintiff’s scrotum existed before any infection was caused by scratching, a charge that plaintiff could not recover if the injury was caused by infection from scratching an ulcer, was not warranted by the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. <§=>252(8).]
    Appeal from District Court, Dallas County'; Kenneth Foree, Judge.
    Action by H. H. Burkes against the Northern Texas Traction Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Rembert G. Watson and J. J. Eekford, both of Dallas, for appellant. J. 1-Iart Willis and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.
   RAINEY, C. J.

Appellant sued appellee to recover for personal injuries caused by being thrown from a street car while it was in motion. The allegation is, in substance, that appellee was a passenger, and when approaching the place where he was to alight he pushed the button, arose from his seat, walked down the aisle to the rear entrance and got down on the step preparatory to alighting. While standing there, the car moving slowly, gave a sudden jerk, causing him to fall to the street, whereby he was injured. Appellee answered by general demurrer, general denial, and contributory negligence. A trial was had before a jury, who returned a verdict for appellee, and judgment was rendered accordingly.

The first assignment of error complains of the giving of appellee’s requested charge No. 2, which is as follows:

“Gentlemen of the jury, you are instructed that if you find and believe from the evidence that upon the question of which plaintiff complains he left a place of safety within defendant’s ear while the car was moving, and before it had stopped for him to alight therefrom, and proceeded to the step of the car while it was still in motion, and you further find that at such time both of his hands were incumbered and be did not have hold of anything to support or aid himself, and that while in such position and while so incumbered, and while the car was still moving and before it had stopped for him to alight, he attempted to alight therefrom; and you further find that an ordinary prudent person would not have so acted under the same and similar circumstances — then such act on his part would be negligence which proximately contributed to any injury he may have received, and if you so find, you will return your verdict for the defendant, regardless of your finding upon any further issue herein.”

Under this assignment is submitted the proposition that:

“Plaintiff having pleaded and the evidence being uncontroverted that defendant’s servants in charge of the car caused it to start forward suddenly with a violent jerk, precipitating him from the step upon which he was standing, the requested charge which eliminated this question from the jury’s consideration should not have been given.”

It will be noted that said special charge, after grouping the facts, closes with this language:

“Then such act on his part would be negligence which proximately contributed to any injury he may have received, and if you so find you will return your verdict for the defendant, regardless of your finding upon any further issue herein.”

The issue being whether the appellant was thrown from the car by a sudden jerk, or whether he voluntarily stepped from the car while it was moving, it was error to eliminate from the jury all issues but that of contributory negligence. It was not necessarily contributory negligence for the appellant to have acted as stated in the special charge, but whether negligence or not it’was a question for the jury, and it was error for the court to instruct the jury that such was a fact. From the evidence the jury might have concluded that the appellant was caused to fall from the car by its sudden jerk, and not from his stepping off, which was a controverted issue. The main charge of the court was general in its terms, and did not group the facts, nor specifically call the attention of the jury to the issue of the car being suddenly jerked, that caused appellant to jump. This being so, the error in limiting the issue to contributory negligence is emphasized. If the appellant was caused to fall from the car by reason of tbe ear being suddenly jerked in sucb manner as to constitute negligence on tbe part of tbe operatives, and sucb jerking was tbe proximate cause of tbe injury, and appellant did not voluntarily step off tbe car, or would not have fallen therefrom bad not tbe sudden jerk occurred, then bis fall could not be attributed to bis negligence in getting on tbe step. The wording of tbe special charge virtually takes from tbe jury tbe issue of negligence of tbe company in the operation of tbe car. Wells Fargo & Co. v. Benjamin (Sup.) 179 S. W. 513.

We are of tbe opinion that tbe court erred in giving appellee’s special charge No. ■6, as follows:

“You are instructed, if you believe from tbe evidence that at tbe time, or about tbe time, plaintiff complains be suffered with swelling and discoloration of the scrotum and tbe contents thereof, or parts thereof, and if you find that sucb condition was due to infection caused by scratching a pimple upon sucb part, thereby producing an ulcer, swelling, or discoloration, that you could not, in any event, allow plaintiff anything for such condition.”

Tbe evidence shows that tbe swelling and discoloration existed before tbe infection was caused by scratching. Damages, if any recoverable, could only be diminished by tbe negligence, if any, of appellant in aggravation of such swelling and discoloration.

We are of tbe opinion that tbe evidence does not show any invitation or act of tbe conductor that raised the issue of appellant being induced thereby to occupy tbe step that warranted a charge, and therefore tbe court did not err in refusing the requested charge by appellee.

For the errors indicated in giving requested charge No. 2 by appellee, tbe judgment is reversed and cause remanded.
      <§=>Por other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    MICHALKE v. BROWN et al.
    (No. 5637.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 5, 1916.)
    1. Payment @=>89(4) — Recovery or Payment —Pleading—Sufficiency.
    A petition, alleging that plaintiff paid the same note twice by mistake of fact, after an investigation disclosing that suit was brought thereon, and that the plaintiff was under legal duress to pay the amount sued for, because a portion thereof was past due and unpaid, and a writ of garnishment had issued and funds belonging to plaintiff were impounded, is not subject to general demurrer.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. § 294; Dec. Dig. @=89(4).]
    2. Payment @=>89(5) — Recovery of Payment —Evidence—Sufficiency.
    Evidence held to support a judgment for the amount of a promissory note alleged to have been paid a second time through mistake of fact.
    [Ed. Note. — For other cases, sec Payment, Cent. Dig. § 295; Dec. Dig. @=>89(5).]
    3. Payment @=>85(1) — Recovery — Mistake of Fact.
    An overpayment of money may be recovered by the one making such payment under mistake of fact.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 272, 275, 279; Dec. Dig. @=> 85(1).]
    Appeal from Bee County Court; T. M. Cox, Judge.
    Action by W. C. Brown and another against H. R. Miehalke. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    John Baker and L. D. Stroud, both of Beeville, for appellant. W. G. Gayle, of Beeville, for appellees.
   SWEARINGEN, J.

Plaintiffs, W. C. and Guy Brown, alleged: That W. C. Brown executed a note for §76.89 payable to defendant, H. R. Miehalke, dated November 14, 1911, and payable on or before January 1, 1912, together with interest at 10 per cent, from its date until paid. That on December 18, 1911, tbe wife of plaintiff W. C. Brown paid this note and received a receipt for tbe payment. That defendant, Miehalke, on tbe 2Sth day of August, 1914, instituted a suit in tbe county court to recover judgment on four promissory notes alleged to have been executed by plaintiff W. C. Brown in favor of Miehalke, and bad a writ of garnishment served upon one R. B. Jones, who owed for corn alleged to have been purchased from W. C. Brown. W. C. Brown knew be bad paid tbe note for §76.89, dated November 14, 1911, but was not sure the petition filed against him by Miehalke August 28, 1914, declared upon this particular note dated November 14, 1911, and asked Guy Brown to investigate tbe facts. W. C. Brown instructed Guy Brown that if tbe petition did declare on tbe note of November 14, 1911, not to pay it a second time, but if tbe petition did not, then, to settle for tbe amount sued for. Guy Brown did investigate and came to tbe mistaken conclusion that tbe petition of August 28, 1914, did not declare upon tbe note of November 14, 1911, and, through this mistake of fact, paid the amount called for in tbe note a second time, together with interest on same up to the date of tbe second payment, September, 1914. After this second payment, defendant Miehalke delivered to plaintiff Guy Brown tbe canceled note. Defendant Miehalke did not surrender tbe canceled note when paid December 18, 1911, for tbe alleged reason that it was at tbe bank, but promised to get it and deliver it. This be failed to do until it was paid a second time, though requested to do so by plaintiff. When tbe note, canceled after its second payment, was examined by plaintiff W. O. Brown, tbe mistake of fact was discovered, and demand made for refund of amount of second payment, which being refused this suit was instituted. Upon the' trial before-the court without a jury, judgment was rendered in ' favor of plaintiff W'.' O. ' Brown against defendant Michalke. From this judgment Michalke made this appeal to this court after the trial court overruled Ms motion for a new trial.

■ The first assignment is that the court en;ed in overruling defendant’s general demurrer to plaintiffs’ petition. The proposition submitted is that appellees’ petition, having failed to allege any' facts showing that when W. C. Brown made the second payment to appellant the same was made by mistake or induced by fraud, misconduct, or duress on the part of appellant, was subject to general demurrer.

The petition was not subject to a general demurrer, for it clearly alleges that the same note was paid by W. C. Brown to Michalke twice, and was paid the second time because Guy Brown, agent for W. G. Brown, after investigation at the request of W. C. Brown, mistakenly concluded that this second payment was not paid to settle the note which had been previously paid. Sullivan v. Owens, 78 S. W. 378. The facts alleged in the petition are sufficient to show that the second payment was made under legal duress, in this, that some of the indebtedness from W. G. Brown to Michalke sued for in August 28, 1914, was past due and unpaid. The suit was to recover on notes in addition to this note for $76.89, dated November 14, 1911. A writ of garnishment was issued and impounded funds belonging to plaintiff Guy Brown. Goodhue v. Hawkins, 133 S. W. 292.

Appellant in his second and third assignments contends that the judgment is contrary to the evidence, in that the undisputed .evidence shows that plaintiffs voluntarily paid a second time the note which was the basis of this suit, and at the time of payment had full knowledge of all the facts, and that plaintiffs were not induced to pay the same through mistake, fraud, or duress or any misconduct on the part of tMs defendant, Michalke. The evidence shows: That plaintiff W.,0. Brown paid the same indebtedness a second time. That he had refused repeatedly to pay it the second time for the period of time from December 18, 1911, until August 28, 1914. That he instructed Guy Brown not to pay the indebtedness represented by this note a second time; to examine the petition in the'Suit filed August 28, 1914; to learn whether or not this particular item of indebtedness was declared upon in that petition. That Guy Brown made the investigation and through mistake of fact concluded that the petition did not declare upon this item of indebtedness.

The mistake was discovered when the canceled note was finally delivered to plaintiff W. G. Brown. It is well settled in this state that overpayment of money may be recovered. City Bank v. Bank, 45 Tex. 203; Pulliam v. Pulliam (C. C.) 10 Fed. 73; Alston v. Richardson, 51 Tex. 6; Bank v. McLane, 96 Tex. 55, 70 S. W. 201; Tarrant County v. Rogers, 125 S. W. 594, § 3; Smith v. Norton, 133 S. W. 733; Sullivan v. Owens, 78 S. W. 373; Simpkins, Equity, p. 517, under that portion of the section entitled “Payments of. Money under Mistake of Law,” which treats of mistake of fact. Those decisions cited by appellant and cited in Simp-kins on Equity, on page 521, are distinguished by that author from the ones above cited, and it is not necessary to discuss the distinction here.

The case mainly relied upon by appellants, apparently is that of Galveston Co. v. Gorham, 49 Tex. 279. Chief Justice Roberts, in the opinion in that case, draws the distinction between that case and this one as will appear from the following quotation:

“It is unlike a payment to an individual. It is contribution to a common fund, in the benefits of which he, as a citizen or property holder, participates. It is intended for immediate expenditure for the common good, and it would be unjust to require its repayment, after it has been thus, in whole or in part, properly expended, which would often be the case, if suit could be brought for its recovery without notice having been given at the time of payment; and there would be no bar against its insidious spring but the statute of limitations.”

There are no reversible errors disclosed by the record.

The judgment is affirmed.
      <2&s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    CORPUS CHRISTI ST. & INTERURBAN RY. CO. v. KJELLBERG.
    (No. 5650.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 5, 1916.)
    1. Trial <&=n253(9)— Instructions— Indefi-NITBNESS.
    In an action for damages where the petition, embracing about ten pages of typewritten matter, charged that plaintiff was injured when defendant’s street car ran into his wagon on which he was riding, that the ear was operated in, a negligent manner, .that the bell was not rung or the gong sounded, that it was run at a high rate of speed, that there was no headlight, though it was about dark, that no lookout was kept, that the plaintiff’s peril was discovered in time to have prevented injury by proper care, that the car was not equipped with proper appliances for quick stopping, and that the motorman was incompetent, a charge that if the defendant was guilty of either or all of the acts of negligence charged in the petition, which resulted in plaintiff’s injury, they should find a verdict for plaintiff, without informing the jury as to what negligent acts were alleged and as to which there was testimony, in view of a request to present the concrete case, was reversible error.
    TEd. Note. — For other cases, see Trial, Cent. Dig. § 620; Dec. Dig. ⅞⅛253(9).]
    2. Trial ®=>250 — Injury on Track — Instructions — Issues.
    In an action for personal mjuries alleging that plaintiff’s wagon had been struck by defendant’s street car and overturned, and plaintiff injured thereby, which had been denied by the defendant, a requested charge that unless the jury find that the car struck plaintiff’s wagon, or if it found that defendant’s car did not cause the overturning of the load or the wagon, and that but for such overturning plaintiff would not have been injured, to find for defendant, sustained by evidence introduced by defendant should have been given; and other requested charges, each of which correctly presented the same defense, should have also been given.
    [Ed. Note. — For other cases, see Trial. (V'u Dig. §§ 584-5S7; Dec. Dig. @=>250.]
    3. Pleading @=>3S2(1) — General Denial — Scope.
    A general denial puts the plaintiff upon proof of every material allegation in his petition, and the defendant can show any matter tending to disprove the case alleged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1280-1291, 1293; Dec. Dig. @=> 382(1).]
    4. Trial @=>312(3) — Further Instructions— Statute.
    Under Rev. St. 1911, art. 1962, providing that if the jury after retiring desire further instructions, they shall appear in open court and through their foreman state to the court either the particular question of law upon which they desire further instruction, and that the court shall give such instruction in writing, the court’s action on receiving .a communication from the jury through the officer in charge inquiring £s to the meaning of a word used in the charge rn replying in writing giving the meaning of the word,"all in the absence and without knowledge of defendant’s attorneys, was reversible error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 745; Dec. Dig. @=>312(3).]
    5. Trial @=>307(1) — Province of Court — Instructions — Jury’s Use of Dictionary.
    The trial court’s order on the jury’s request through an officer in charge, that a dictionary be furnished the jury which was used in the jury room, was erroneous, as the trial judge is the only one authorized by law to give definitions and explanations to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 732, 733; Dec. Dig. @=>307(1).]
    Appeal from District Court, Nueces County ; Jas. A. Graham, Special Judge.
    Action by J. E. Kjellberg against the Corpus Christi Street & Interurban Railway Company. Judgment for plaintiff and defendant appeals.
    Reversed and remanded.
    D. McNeill Turner and Kleberg & Stayton, all of Corpus Christi, for appellant. 'Suttle & Todd and T. O. Woldert, all of Corpus Christi, for appellee.
   FLY, C. J.

Appellee sued appellant to recover damages alleged to have accrued by reason of injuries inflicted on his person through the negligence of appellant. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $6,000.

The petition charged that appellee’s injuries resulted from a car belonging to appellant running “upon, into, and against” the wagon of appellee, which was loaded with hay and upon which he was riding. It was alleged that the car was operated in a reckless, careless, and negligent manner; that the bell was not rung, nor gong sounded; that the car was being run at a,high rate of speed; that there was no headlight on the front of the car, although it was about dark; that no lookout was kept; that the peril of appellee was discovered and his injury could have been averted by proper care; that the car was not equipped with approved appliances for the speedy stoppage thereof; and that the motorman was young and incompetent, and a novice in the operation of street cars.

The court in the charge to the jury instructed a verdict for appellee if the jury found that appellant was “guilty of either or all of the acts of negligence charged in plaintiff’s petition, and that such act or acts of negligence, if any, resulted in any one or all of the injuries and damages alleged by plaintiff in his petition.” In n’o part of the charge was the jury informed as to what negligent acts were alleged and about which there was testimony, but they were relegated to a perusal and investigation of a petition embracing about ten pages of typewritten matter, as shown by the record herein, to discover the negligence alleged. The court should have informed the jury as to what the grounds of negligence were as alleged in the petition and supported by evidence, and the jury should not have been left to investigate the pleadings to ascertain what the grounds of negligence might be. If no special charge had been requested which drew the attention of the jury to the allegations as to how the accident occurred, it is only possible that no error would be shown that would form the basis for a reversal; but in this case appellant endeavored by special charges to have the concrete case alleged presented to the jury, together with the defense presented to it by its evidence.

The following special charge was requested by appellant:

“The jury are further instructed as a part of the law in this case that unless they find from a preponderance of the evidence that the street car came in contact with plaintiff’s wagon loaded with hay, or if you find that a car of the defendant did not cause the overthrowing of said load of hay or said wagon, or of Said hay frame, and that but for the said overturning plaintiff would not have been injured, you will find for defendant.”

That charge should have been given. It presented a defense which was sustained by evidence introduced by appellant. It was an application to the facts of the trite maxim that “the allegata and probata must correspond.” Appellee had alleged that his wagon had been struck by a street car and overturned and he injured thereby, and this had been denied by appellant; and if the evidence or any part of it tended to show that the wagon had not been struck and overturned by the car, but the horses had run away and turned the wagon over, that phase of the case should have gone to the jury, although appellant had only pleaded a general denial. It was incumbent on appellee to prove his case, and if the evidence tended to show that the horses, and not the car, had overturned the wagon, appellant had the right, under its general denial, to have that issue presented to the jury. It is the well-settled rule in Texas that a general denial puts the plaintiff upon proof of every material allegation in his petition, and the defendant can show any matter tending to disprove the case alleged. Tisdale v. Mitchell, 12 Tex. 68; Herndon v. Ennis, 18 Tex. 411; Altgelt v. Emilienburg, 04 Tex. 150; Railway v. Washington, 94 Tex. 510, 68 S. W. 534. In the last case cited the plaintiff had charged that the injuries had been inflicted in a certain way, and the defendant pleaded only a general denial, and the Supreme Court held that the defendant could show that the accident did not occur as alleged, that being a substantial defense under the general issues. That case is also authority for the proposition that a special charge presenting the defense should have been given. There were several special charges requested by appellant presenting the same defense, as shown in the charge copied herein, either of which correctly presented the defense. Railway v. Johnson, 100 Tex. 237, 97 S. W. 1039.

The second assignment of error complains of the action of the court in receiving and holding communication with the jury in regard to the meaning of the word “produced,” as used in the fifth paragraph of the charge. The bill of exceptions shows that after the jury had retired from the courtroom to the jury room a communication was brought to the judge by the officer who had them in charge, inquiring as to whether the word “produced” meant “directly or indirectly,” as used in the charge. The court replied in writing that “the word ‘produced’ used in article or paragraph 5 of the court’s charge means the proximate cause of.” At the time this occurrence took place appellant’s attorneys were not present, and the same was done without their knowledge or consent. The statute is positive that if a jury desire further instruction after retiring, “they shall appear before the judge in open court in a body and, through their foreman, state to the court, either verbally or in writing, the particular question of law upon which they desire further instruction, and the court shall give such instruction in writing. * * * ” Rev. Stats, art. 1962. Discussing the cited statute the Supreme Court held:

“It is thus seen that the statutes very carefully provide the manner in which the court shail confer with the jury and that he shall give no instructions or confer with them in any manner except in open court. The obvious purpose of this is that counsel may be present and see that the conference is proper, and, if not, may take a bill of exception to the action of the court. It seems to us, therefore, that it is error for the judge to confer with the jury in any other manner than that prescribed by law, and that if ho does his judgment on that account ought to be reversed.” Railway v. Byrd, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137.

Appellee cites, as authority for his contention that it was not error for the court to communicate with the jury as was done, a decision of this court in a case in which the jury room opened into the courtroom and the jury could be seen by the court. However, a writ of error was granted in that case, the ground being the communication of the court with the jury. Compress Co. v. Moody, 154 S. W. 1032. The facts of that case are quite different from the present one, and if communications between the trial judge and jury without having the latter actually in open court could ever be justified, the facts of that case furnished the occasion. We adopt the following language of the Byrd Case as applicable to the judge who tried this case:

“It is but just to the learned judge before whom the ease was tried to say, that his conduct in the matter involved no moral delinquency on his part.”

After the definition of the word “produced” had been given as “the proximate cause of,” it seems that the jury knew no more what “proximate” meant than what “produced” meant, so the officer in charge was sent to the court to obtain a Webster’s Dictionary, and the court ordered the dictionary to be furnished the jury, and it was furnished, and they used it in the privacy of the jury rom. What the jury obtained from that stupendous work, filled with inconceivable words and maxims and aphorisms, no-one knows. No book should be consulted by a jury in arriving at a verdict, and especially one that defines and treats on everything expressed by the English language. No maker of dictionaries should ever be allowed to-define legal terms to a jury, unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to a jury.

We have considered every point of any importance presented by the brief, and need not consider remaining assignments of error.

For the reasons herein given, the judgment is reversed, and the cause remanded.
      ©anFor other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    CITY OF LAREDO v. LOONEY, Atty. Gen.
    (No. 2800.)
    (Supreme Court of Texas.
    May 3, 1916.)
    Municipal Corporations <S=»918 — Bonds— Invalidity — Rights op Holders — Refunding.
    Where the individual bonds of an original issue for street improvement purposes were sold and delivered at the same time, and the issue was void to the extent that it was in excess of the amount permitted by Const, art. 8, § 9, as amended, then in force, a proposed issue of bonds to refund the amount of the bonds still outstanding could not be made, though within the constitutional limit, since each bond, to the extent of its proportionate excess above the amount for which the debt could be lawfully created, was invalid from its inception, and the amount of the valid debt should be distributed equally between them, though for such part of the outstanding debt as was valid refunding bonds might be issued.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1905; Dec. Dig. 913.]
    Mandamus by the City of Laredo against B. F. Looney, Attorney General of Texas.
    Writ relused.
    A. Winslow, City Atty., of Laredo, for appellant. B. F. Looney, Atty. Gen., and C. M. Cureton and W. M. Harris, Asst. Attys. Gen., for appellee.
   PHILLIPS, C. J.

In this action a mandamus is sought against the Attorney General to compel his approval of a proposed issue of bonds of the City of Laredo in the amount of $31,000.00 for the purpose of refunding in like amount bonds of an original issue, in 1883, of $75,000.00, for street improvement, city hall, and market house purposes.

The individual bonds of the original issue, so far as is disclosed by the record, were all sold and delivered at the same time. The issue was void to the extent of approximately $39,000.00, being that much in excess of the amount for which the city could at the time have lawfully issued its bonds for the purposes named under the amendment of Section 9, Article 8 of the Constitution then in force. The city has paid off and retired forty-two bonds of the original issue, aggregating $42,000.00, and has available funds sufficient to retire two other bonds of the issue. This would leave $31,000.00 of the original issue outstanding, for which amount the refunding issue is proposed.

The contention of the relator is that although the original issue was partly void, under the Constitution, and the city could have then validly issued its bonds for the stated purpose only in the amount of approximately $30,000.00, it is lawful for the city to refund the issue in the amount of $31,000.00, since the bonds could, originally, have been lawfully issued in that amount.

The power to issue refunding bonds can be exercised only where the original debt was valid. If it was partly invalid, it may be refunded only to the extent that it was valid. If bonds of a partly invalid issue are shown to have been delivered at different times, those first delivered, up to the amount of the debt that could have been lawfully created, should be paid, and the remainder be treated as nullities. The bonds of such an issue thus representing the valid part of the debt could be lawfully refunded. But if all of the bonds of the partly invalid issue were delivered at the same time, as appears to have been the case here, none of them could have any right of priority over the others, and the amount of the valid debt should be distributed equally between them. Citizens Bank v. City of Terrell, 78 Tex. 460, 14 S. W. 1003. Each bond now outstanding of this original issue, to the extent of its proportionate excess above the amount for which the debt could be lawfully created,, was therefore invalid in its inception, and is still so invalid. Each of them being but a part of the whole debt created, partakes alike of its validity and invalidity. If they may be refunded for their full amount, the result is a clear evasion of the Constitution. It would simply mean the maintenance of the whole debt against the city through an attempted validation of the outstanding balance. The property within the city has already been taxed for the payment of those bonds of the issue which have been retired, and if the remainder may be lawfully refunded it will be further taxed for their payment. It would thus be subjected to taxation for the admittedly invalid part of the debt. The purpose of the constitutional provision is to prevent such taxation. For such part of the outstanding debt as is valid, refunding bonds may be issued; but not for its full amount.

The writ of mandamus is refused.


text:
    MIDDLETON v. TEXAS POWER & LIGHT CO.
    (No. 2744.)
    (Supreme Court of Texas.
    April 26, 1916.)
    1. Constitutional Law ⅞=^>105 — Tested Rights — What aee.
    While vested rights are protected from destruction, except by due process of law, no one has a vested right in the common-law rules affecting the remedy in a servant’s action or the defenses of fellow servant, assumed risk, and contributory negligence.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 228-235; Dec. Dig. 105.]
    2. Constitutional Law <⅞=»105 — Master and Servant ⅞=>347 — Injuries to Servant-Employer’s Liability Act.
    Acts 33d Leg. c. 179, relating to the liability of employers and compensation to workmen for personal injuries, provides that employers may, at their election, become subscribers under the act or remain without the act, that if they become subscribers and give required notice to that effect to their employes, they are exempt from all common law or other statutory liability for personal injury suffered by such employés, except for exemplary damages where an employó is killed through an employer’s willful act or gross negligence and that if they do not become subscribers they are amenable to suits for damages recoverable at common law or by statute on account of personal injury, and cannot urge the defenses of fellow servant, assumed risk, or contributory negligence. Held that, as the employers were given an option and as an employer has no vested right to the defenses of assumed risk and contributory negligence, the act was constitutional as to them.
    [Ed. Note. — For other cases, see .Constitutional Law, Cent. Dig. §§ 228-235; Dec. Dig. <§=> 105; Master and Servant, Dec. Dig. <§=>347.]
    3. Constitutional Law <§=>106 — Workmen’s Compensation Act — Vested Rights.
    Acts 33d Leg. c. 179, provides that em-ployés remaining in the service of an employer after he shall have given notice that he will be bound by the provisions of the act shall have no common-law right of action for injuries which may be sustained, but shall receive a stated compensation based upon their average weekly wages which shall be paid to them or their representatives in event of death without regard to whether the employer is liable at common law and without the neeessity of proving negligence. The purpose of the act was to benefit employés, though it was made obligatory to employés remaining in the service of an employer who had elected to be bound by the act. Held that, notwithstanding Bill of Rights, § 13, declaring that every person for any injury done him in Ms lands, goods, reputation, or person shall have his remedy by due course of law^ the act was valid as to employés, for they have no vested right to the common-law actions for negligence, the constitutional provision relating to intentional wrongs, so the Legislature might deprive them of such rights.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 186, 212, 238-245, 252-257, 259; Dec. Dig. <§=>106.]
    4. Constitutional Law <§=>106 — -Vested Rights — What abe.
    While a servant has a vested right in a cause of action for the master’s negligence, which has already accrued, he has no vested right to the common-law remedies provided for recovery for injury from the master’s negligence.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 186, 212, 238-245, 252-257, 259; Dec. Dig. <§=>106.]
    5. Statutes <§=>114(2) — Construction—1Title of Act.
    Acts 33d Leg. c. 179, entitled “An act relating to employer’s liability and providing for the compensation of certain, employés and their representatives and beneficiaries, for personal injuries sustained in the course of employment, etc.,” which provides an exhaustive scheme for workmen’s compensation is valid, the title expressing the single general subject of the act.
    [Ed. Note. — For other cases, see Statutes, Dec. Dig. <⅞=>114(2).]
    6. Constitutional Law <§=>80(2) — Legislative Authority — Delegation.
    Acts 33d Leg. c. 179, providing a system for compensation of injured workmen which creates an industrial accident board to determine disputed claims arising under the act, but provides for appeal to a court of competent jurisdiction from the decisions of the board, is not invalid as delegating judicial authority to the board.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 144; Dec. Dig. <§=> 80(2).]
    7. Constitutional Law <§=>208(1) — Class Legislation — Classification.
    Classification for the purpose of a law is a legislative function, and the classification will be sustained, unless without any reasonable basis.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 665, 666, 669-674; Dec. Dig. <§=>208(1).]
    8. Constitutional Law <§=>208(7) — Class Legislation — Reasonable Classification.
    Acts 33d Leg. c. 179, relating to liability of employers and compensation for injuries to workmen which excepted railroads, employés of gin houses, domestic servants, and farm hands and employés of masters not employing more than five servants, is not invalid as prescribing an unreasonable classification, there being many laws for the protection of railroad employés, and the other employés falling in a different class from those included within the act.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 654-656; Dec. Dig. <§=» 208(7).]
    9. Juey <®=>31(1) — Jury Trial — Impaiement.
    Acts 33d Leg. c. 179, relating to the liability of the employers and compensation of workmen which provided for determination of contested claims by an industrial accident board, is not invalid as depriving employers and em-ployés of jury trial, an appeal being provided for on which jury trial might be had.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 204, 214; Dec. Dig. <§=>31(1).]
    10. Corporations <§=>6 — Creation — Private Corporation.
    Acts 33d Leg. c. 179, relating to the liability of employers and compensation of workmen for injuries which created an insurance association is not invalid as creating a private corporation by special law contrary to the Constitution; the association, though denominated a corporation, being a mere arm of the state provided for carrying out the compensatory provisions of the law.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 30-34; Dec. Dig. <§=>6.]
    Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.
    Action by Charlie Middleton against the Texas Power & ¡Light Company. From judgment for defendant, plaintiff appealed to the Court of Civil Appeals (178 S. W. 956), which reversed and remanded the case and certified questions to the Supreme Court.
    Questions answered.
    Witt & Saunders and Chas. A. Braun, all of Waco, for plaintiff. Lawther, Pope & Mays and Homer R. Mitchell, all of Dallas, Spell & Sanford, of Waco, Batts & Brooks, of Austin, and Jas. Harrington Boyd, of Toledo, Ohio, for defendant.
   PHILLIPS, C. J.

In this case we are called upon to answer seventeen questions certified by the honorable Court of Civil Appeals for the Third District as to the constitutionality of the Act of the Thirty-third Legislature (Acts 33d Leg. c. 179) relating to the liability of employers and compensation of workmen for personal injuries. Apparently every possible constitutional question suggested by the act has been embraced in the certificate, including some which the appellant was in no position to raise.

The Act contains many provisions and is therefore of considerable length. Instead oí setting out its different sections, its evident purpose, operation and effect, will be stated to such extent as is necessary.

Its general purpose is to work an important change in the law in regard to the liability of employers for personal injuries to their employees, or for death resulting from such injuries, and the compensation afforded therefor to employees or their beneficiaries. It creates an employers’ insurance association to which any employer of labor in the State, with certain exceptions, may become a subscriber. Out of the funds of this association, derived from the premiums upon policies of liability insurance by it issued to subscribing members and assessments authorized against them, if necessary, the compensation provided by the Act as due on account of personal injuries sustained by their employees, or on account of death resulting from personal injury, is to be paid. This compensation, fixed by the Act on the basis of the employee’s average weekly wages, accrues to him absolutely upon his suffering any personal injury in the course of his employment which incapacitates him from earning full wages for as long a period as one week, or to his representatives or beneficiaries in the event of his death from the injury, whether or not due to the negligence of the employer or any of his servants or agents; and is protected from all process or claims to the same extent as current wages under existing laws. It is the substitute intended and provided by the Act for damages ordinarily recoverable at common law or by statute on account of injuries suffered by an employee or because of his death, when due to the negligence of the employer or his servants; it being declared by the Act that the employee of a subscribing employer shall have no cause of action against him for damages for personal injuries, nor shall his representatives or beneficiaries in case of his death, except that exemplary damages may be recovered in an ordinary suit by the surviving husband, wife and heirs of any deceased employee whose death is caused by homicide through the wilful act or omission or gross negligence of his employer.

While any employer of labor within the State, with the exceptions provided, may become a subscriber and by complying with the Act be, except as to exemplary damages just noted, exempt from all common law or statutory liability on account of injuries suffered in his service by his employees, by the Act all employers who do not become subscribers, in a suit for damages on account of such injuries, or for death resulting therefrom, are deprived of the common law defenses of the negligence of a fellow servant and assumed risk, and, as an absolute defense, of contributory negligence on the part of the employee, as well; it being provided that the damages, in such suits shall be diminished in proportion to tlie amount of any negligence attributable to the employee, and that no employee shall be deemed guilty of contributory negligence where the violation by the employer of any statute enacted for the safety of employees contributed to his injury or death. It is declared however that in all such actions against a non-subscribing employer, it shall be proved, as necessary to a recovery, that the injury to or death of the employee was due to the negligence of the employer, or some agent or servant acting for him within the general scope of his employment; and that where the injury was caused by the wilful intention of the employee to bring it about, the employer may defend upon that ground.

Wholly excepted from the operation of the Act are employers, — and their employees as well, — operating railways as common carriers, cotton gins, and those engaged in any class of business having in their employ not more than five employees. The Act likewise does not apply to employees who are domestic servants or farm laborers.

Every employer becoming a subscriber to-the insurance association is required to give written or printed notice to all employees under contract of employment with him that he has provided for payment by the association of compensation for injuries received by them in the course of their employment.

Under certain conditions an employer holding a policy insuring against his liability, issued by any insurance company lawfully transacting a liability or accident insurance business'within the State, shall be deemed a subscriber within the meaning of the Act.

There is also created by the Act and charged with its administration, a board of three members whose duties are defined. In general, its province is the determination of disputed claims arising under the Act. If its decision is not accepted, suit may be brought upon the claim, or be required to be brought, against the association if the em-’ ployer of the injured or deceased employee was a subscriber at the time of his injury or death, in a court of competent jurisdiction, which, however, shall adjudicate the questions of liability and compensation according to the provisions of the Act.

In brief, the operation of the Act, as to all employers of labor within the State not excepted by its terms, is this:

1. They may, at their election, become' subscribers under the Act, or what may be termed consenting members to its general scheme of liability and compensation, or remain without its pale.

2. If they become subscribers and give the required notice to that effect to their employees, they are exempt from all common law or other statutory liability for personal injury suffered by such employees in their service, except that for exemplary damages where an employee is killed through an employer’s wilful act or omission or gross negligence, which may be defended against as under existing law.

3. If they do not become subscribers, they are amenable to suits for damages recoverable at common law or by statute on account of personal injuries suffered by their employees in the course of their employment, and are denied the right of making what constitute the common law defenses thereto. In such a suit, however, no recovery may be had against an employer except upon proof of his negligence, or negligence on the part of some agent or servant acting within the general scope of his employment; or where the employee wilfully caused his own injury.

As to employees, this is the effect of the Act:

1. They are at liberty to work or not to work for employers who are, or who may become, subscribers under the Act.

2. If they enter the service of a subscribing employer, or remain in his service after written or printed notice given by him that he is such an employer, and are injured in the course of their employment, a stated compensation, based upon their average wages, is paid them therefor, or to their representatives or beneficiaries in the event of death from the injury, without regard to whether the ernployer is liable therefor as at common law and therefore without the necessity of proving negligence, through an agency provided by the Act as the means of insuring such payment.

3. Such employees as are injured in the service of subscribing employers who comply with the Act, are denied all right of action therefor against such employers, as are the representatives and beneficiaries of deceased employees for injuries resulting in death, except that the surviving husband, wife and heirs of any such deceased employee killed through the wilful act or omission or gross negligence of such employer may maintain an action for exemplary damages on account of his death.

This being the operation of the Act upon employers and employees, the question that commands first attention in the consideration of its constitutionality is, Does it violate any of their fundamental rights? This will be determined in the light of the sSveral questions certified, without setting them out or attempting to answer them separately. As to employers, it is clear that no fundamental right is invaded. The Act leaves them free to adopt its plan of compensation, or remain ungoverned by it. The consequence attached to their not consenting to it, is the denial of the right, existing in common law actions, to interpose the common law defenses of fellow servant, assumed risk, and contributory negligence in suits for the recovery of damages for personal injuries, suffered by their employees in the course of their employment. But that is not a vested right or a right of property. Those defenses are but doctrines or rules of the common law. Rights of property which have been created by the common law cannot be taken away by the Legislature. They are protected from destruction by any process except the due process of the law, that is, law in its regular course of administration through courts of justice. But no one has a vested interest in the rules, themselves, of the common law; and it is within the power of the Legislature to change them or entirely repeal them. Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Second Employers Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44.

A legislature may in proper instances prescribe duties and penalize their breach through an authorization for the recovery of consequent damages. But it is wholly without any power to deny the citizen the right of making any defense when sued in the courts. There is no such thing in this country as taking one man’s property without his consent and giving it to another by legislative edict. That is nothing less than confiscation by legislative decree. If this Act, therefore, had declared an employer not consenting to its provisions absolutely liable in damages at the suit of an employee for any injuries sustained by the latter in the employment, without reference to any wrong or breach of duty committed by the employer, it would have been void. Such a law would have amounted to a legislature forfeiture of property rights, regardless of the holding of any court upon the question. The Act in its effect would have been the same if it had sought to deprive the employer of all defenses to such a suit. The true rule is that while technical defenses may be abrogated by statute those which affect a party’s substantial equities may not be. Cooley Const. Lim. 456; Maguiar v. Henry, 84 Ky. 1, 4 Am. St. Rep. 182; First School District v. Ufford, 52 Conn. 44. The defenses formerly available to an employer and abrogated by the Act are not of the latter character. Their operation in the common law action for damages is not to acquit the employer because of his having breached no duty and being without fault, but they deny recovery to the employee because of his conduct, or, under the fellow servant doctrine, because the act is that of a co-employee, and the consequences imputed to the employee for that reason as a rule of law. It was within the power of the Legislature to change the rule.

Employers who become subscribers under the Act voluntarily waive the right to have their liability determined in the courts. As to employers who remain without the Act, negligence on their part, or of some servant or agent acting in the scope of his employment, must be established to render them liable in a suit for injuries suffered by the employee. This is not the creation of an absolute liability against them. They may still defend and defeat the suit by disproving any hegligence. The substantial ’defense to such actions is therefore not taken away. The Act, accordingly, deprives neither class of employers of any fundamental right. The State v. Creamer, 85 Ohio St. 849, 97 N. E. 602, 39 L. R. A. (N. S.) 694; Opinion of Justices, 209 Mass. 607, 96 N. E. 308; Borgnis v. Falk Company, 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Jeffrey Manufacturing Company v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364.

The effect of the Act upon the rights of employees cannot be properly weighed or determined without a due consideration of its aim and policy in their interest. Its theory, as it concerns them, is that the plan of compensation it provides for their injuries suffered in the course of their' employment is more advantageous than a suit for damages. In the latter, the employee is compelled to assume the burden of establishing that his injury was caused by the employer’s negligence or the negligence of a servant for which the employer is responsible. His suit fails if it is subject to any of the common law defenses, that is, if his own negligence was the proximate cause of the injury, or if the injury was due to a risk he assumed, or the negligence of a fellow servant. By the Act a fixed compensation is payable to him upon the mere happening of any injury in the course of the employment, or to his beneficiaries in the event of his death from the injury, without reference to any negligence on the part of the employer or his servants, and without regard to defenses available to the employer at common law.

With this as the evident spirit and design of the Act in the employee’s interest, his entering the service of an employer who in his business pursuit is governed by the Act, or his remaining, after notice duly given, in the service of an employer who has adopted its plan of compensation and become subject to it, is made to operate as a waiver of any cause of action against the employer on account of any injury suffered in the course of the employment, except for exemplary damages in behalf of a surviving husband, wife, or heirs, as already noted.

Does this deprive the employee of any vested right or property right? It is clear that it takes from him no property right. A vested right of action given by the principles of the common law is a property right, and is protected by the Constitution as is other property. The Act, however, does not profess to deal with rights of action accruing before its passage. That which is withdrawn from the employee is merely his right of action against the employer, as determined by the rules of the common law, in the event of his future injury. This is nothing more or less than a denial to him by the Legislature of certain rules of the common law for the future determination of the employer’s liability to him for personal injuries incurred in the latter’s service, and, in the plan of compensation provided, the substitution by the Legislature of another law governing such liability and providing a different remedy. The question is: Was the Legislature without the power to thus completely change thq law upon the subject? This inquiry has no concern in the wisdom of the change; it takes no account of the reason for it; it is limited to the naked question of the Legislature’s power.

That the Legislature possessed the power, must be conceded, unless it be true that the employee is protected by the Constitution in the continuance of the rules of the common law for his benefit in the determination of the employer’s liability for such injuries as those with which the Act deals. That no one has a vested right in the continuance of present laws in relation to a particular subject, is a fundamental proposition; it is not open to challenge. The laws may be changed by the Legislature so long as they do not destroy or prevent an adequate enforcement of vested rights. There cannot be a vested right, or a property right, in a mere rule of law.

Here the character of injuries, or wrongs, dealt with by the Act becomes important. Notwithstanding the breadth of some of its terms, its evident purpose was to confine its operation to only accidental injuries, and its scope is to be so limited. Its emergency clause declares its aim to be the protection by an adequate law of the rights of employees injured in “industrial accidents,’’ and the beneficiaries of such employees as may be killed “in such accidents.” The Bill of Rights, Section 13, Article I of the Constitution provides that “every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law”; that is, the right of redress in the courts of the land in accordance with the law’s administration. It is therefore not to be doubted that the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another. Such a cause of action may be said to be protected by the Constitution and could not be taken away; nor could the (use of the courts for its enforcement be destroyed. This Act does not affect the right of redress for that class of wrongs. The injuries, or wrongs, with which it deals are accidental injuries or wrongs. What we know and denominate as the cause of action arising from an accidental injury is purely the creation of the common law. It is a common law liability founded upon the common law doctrine of negligence; and but for the rule of the common law, — sometimes also expressed in statutes, — there would be no liability for such an injury, and hence no cause of action for it.

Therefore in denying the employee of a subscribing employer, or his beneficiaries, any cause of action for accidental injuries, this Act simply changes the common law rule of liability upon the subject. It in effect declares that such employers shall no longer be liable as under that rule, but shall be liable according to the rule prescribed by the Act. If the Legislature in the performance of its function of declaring what the law shall be, is authorized to change and repeal the rules of the common law upon other subjects, as is undoubted and has been done in numerous and notable instances, wherein is its power to change this common law rule to be denied? If it may entirely abrogate the common law rule of contributory negligence, thus relieving the employee of all consequence of his negligence, and transferring it, in effect, to the employer, what is there, as a matter of purely legislative authority, to prevent its relieving the employer of the consequence of his negligence and, in particular, the negligence of his servants, and determining that he shall compensate his employee for accidental injuries received in his service according to a different rule, through another remedy, and in its judgment by a better plan? If, in a word, it may declare that contributory negligence shall no longer be a defense, may it not also declare, as to purely accidental injuries, that negligence shall no longer be actionable? If it may change defensive common law rules, may it not also change a common law rule of liability ? The power of the Legislature cannot exist in the one instance and not in the other. In virtue of its authority to enact laws, and, in doing so, to supersede common law rules where it deems such action wise, it exists in both; and it was in our opinion therefore competent for the Legislature, by this Act, to change both the common law rule of defenses and the common law rule of liability with respect to accidental injuries sustained by an employee in the course of his employment, requiring the employer, if he elects to come under the Act, to provide, according to its plan, a fixed compensation to be paid the employee, or his beneficiaries if his injury results in death, and denying to the employee of an employer subject to the Act, or his beneficiaries, the right of recovery therefore according to common law rules. We rest the decision of this question upon what seems to us is the evident proposition that no one has any vested or property interest in the rules of the common law, and therefore no one is deprived of a constitutional right by their change through legislative enactment. Jensen v. Railway Company, 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403. The alteration in the law worked by this Act may be marked, but that does not of itself affect the power of the Legislature to so write the law; and it is only with the question of its power that we are concerned. The bearing of the Act upon the* rights of employees, in its denial to those engaged in the service of a subscribing employer of a common law action for injuries so suffered, presents the vital constitutional question of the legislation. It is its abrogation of a familiar rule of liability that affords the chief challenge of its validity and not unnaturally prompts the test of the Constitution. But that instrument has not undertaken to preserve inviolate the rules of the common law. That system of rules to the extent that we are governed by it was adopted by the Legislature, and the same authority may alter it. The right to have the liability of an employer for an accidental injury to an employee determined by a common law doctrine is not a constitutional immunity, and this Act in changing that rule of liability therefore invades no constitutional right.

We do not regard the Act in other-respects as violative of any of the other constitutional provisions referred to in the certificate. The Act contains but one general subject; its purpose is one general object; and its title sufficiently expresses it. It vests no judicial power in the Industrial Accident Board which it creates. That Board is but an administrative agency provided for the proper execution of the Act. The classification adopted by the Act is not to be held by a court as an arbitrary and unreasonable one. In the enactment of such a law the Legislature was privileged to make a classification in respect to employees subject to the law. Classification for the purpose of a law is a legislative function. It will be sustained by the courts unless it is wholly without any reasonable basis. Employees of railroads, those of employers having less than five employees, domestic servants, farm laborers and gin laborers are excluded from the operation of the Act, but this was doubtless for reasons that the Legislature deemed sufficient. The nature of these several employments, the existence of other laws governing liability for injuries to railroad employees, known experience as to the hazards and extent of accidental injuries to farm hands, gin hands and domestic servants, were all matters no' doubt considered by the Legislature in exempting them from the operation of the Act. Distinctions in these and other respects between them and employees engaged in other industrial pursuits may, we think, be readily suggested. We are not justified in saying that the classification was purely arbitrary.

Nor does the Act impair the right of trial by jury. Trial by jury cannot be claimed in an inquiry that is non-judicial in its character, or with respect to proceedings before an administrative board. The Accident Board charged with the administration of the Act is, as we have said, not a court. In its determination of disputed claims there could be no right to a jury trial. The Act authorizes appeals from the decisions of the Board to the courts, where a jury trial of the matters in dispute, under the law as embodied in the Act, may be had.

The insurance association created by the Act is not a private corporation, and this part of the Act is not violative of the Constitution in its provision that no private corporation shall be formed except by general laws. Some such agency as the insurance association may be deemed as essential to the efficient execution of the Act. It was a way of giving effect to the plan as a dependable method of providing the funds necessary for the payment to employees of the compensation the Act is designed to afford. The association is very clearly only an agency for the proper administration of this law. It has no functions or powers which it may exercise for any other purpose. It is denominated in the Act as a corporation, but that may be regarded as a term of convenience. Calling it a corporation does not make it a private corporation. Its character is to be determined by what it is, and not by its name. Railway v. Board of Directors, 103 Ark. 127, 145 S. W. 892; Beach v. Leahy, 11 Kan. 23.

The Act, in our opinion, is in its several provisions a constitutional law. The respective certified questions are so answered.

YANTIS, J., was disqualified in this case and took no part in the decision.
      other oases see same topic and KEY-NUMBER in' all Key-Numbered Digests and Indexes .

      g-,Fnr other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTTS, J.

text:
    BRANNIN et al. v. RICHARDSON et al.
    (No. 2457.)
    (Supreme Court of Texas.
    May 3, 1916.)
    1. Bills and Notes @=3342 — Failure of Consideration — Notice to Purchaser.
    Where the recitals of purchase-money notes merely advised their pui-chaser that they were secured by vendor’s liens retained in the deed conveying the land, containing no facts to arouse the suspicion of a prudent person that a defect in title existed, such notes were insufficient to put their purchaser upon inquiry.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 830-841; Dec. Dig. @=> ,342.]
    2. Vendor and Purchaser @==>265(3) — Vendor’s Lien Notes — Assumption of Payment.
    When a purchaser of land contracted with the sellers to assume the payment of vendor’s lien notes executed by them to their vendor, such purchaser became legally bound for their payment, becoming principal, and the sellers sureties, though there was no privity of contract between him and the original seller of the land to his vendors, since the payee of a note has an interest in any collateral security given by the principal on such note to his surety, and is allowed to resort to such additional security to enforce payment of the note.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 709; Dec. Dig. @=> 265(3).]
    3. Bills and Notes @=>370 — Vendor’s Lien Notes — Assumption—Statute.
    Under Rev. St. 1895, art. 307, providing that the assignee of a negotiable instrument may sue in his own name, and that, if he obtained the instrument before maturity and gave valuable consideration without notice of defense, he shall be compelled to allow only just discounts against himself, the purchaser of land, who assumed payment of vendor’s lien notes executed by his sellers to their original vendor, when sued by an innocent purchaser of the notes before maturity from the original vendor, could not set up failure of consideration in defense, since the sellers could not have done so against a holder in due course, while the buyer stood in their shoes as primary obligor.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 963; Dec. Dig. @=>370.]
    4. Vendor and Purchaser @=>265(3) — Remedies of Vendee — Defenses—Failure of Consideration.
    The purchaser of land, who assumed payment of vendor’s lien notes given by his sellers to their original vendor, could plead failure of consideration as defense when sued for the price by the sellers to him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 709; Dec. Dig. @=> 265(3).]
    5. Bills and Notes @=>383 — Holder in Due Course — Defense of Payment — Statute.
    Under Rev. St. 1895, art. 307, providing that the assignee of a negotiable instrument obtained before maturity for valuable consideration and without notice of any discount or defense against it shall be compelled to allow only just discounts _ against himself, payment is no defense against a holder in due course of a negotiable instrument.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 956; Dec. Dig. @=>383.]
    6. Bills and Notes @=>534 — Attorney’s Fees — Reasonableness — Proof — Necessity.
    Where notes provided for 10 per cent, attorney’s fees, if the notes were placed -with an attorney for collection, or if collected by suit, a holder in due course of such notes, suing the buyer thereon, could recover attorney’s fees without proving the reasonable value of the services rendered, in the absence of proof that the amount was unreasonable.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. ⅞=> 534.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Suit by L. E. Branniu and another against Barton M. Richardson and others. To review a judgment of the Court of Civil Appeals (148 S. W. 348) affirming judgment for •plaintiffs for a limited amount, plaintiffs bring error.
    Judgments of the Court of Civil Appeals and the trial court reversed, and judgment rendered for plaintiffs.
    J. J. Butts, of Cisco, and Batts & Brooks, of Austin, for plaintiffs in error. J. L. Alford and Spann & Alford, all of Rising Star, for defendants in error.
   YANTTS, J.

The issues in this case are disclosed by the Very clear statement of the case which was made by the honorable Court of Civil Appeals. 148 S. W. 348. We quote therefrom as follows:

“L. E. Brannin and C. P. Brannin instituted this suit against Barton M. Richardson, Catherine Richardson, A. B. Teston, and E. L. Tes-ton to recover upon a number of vendor’s lien notes alleged to have been acquired by L. B. Rivers, deceased, of whose will the plaintiffs had been duly appointed executors. There was a prayer for foreclosure of the vendor’s lien upon the land described in the petition, and for which it was alleged the notes had been given in part payment. E. L. Teston was dismissed from the suit, and the trial resulted in a judgment for plaintiffs against A. B. Teston for the sum of $250.40, with a foreclosure of lien upon the land described in the petition, and the plaintiffs have appealed.
“The trial was upon an agreed statement of the facts, from which it appears that on the 2d day of October, 1906, one W. C. Dawdy, in consideration of $400 in cash paid by Barton M. Richardson and the execution by said Barton Richardson and his wife, Catherine Richardson, of the notes herein sued upon, and of one other note for the sum of $160, sold and conveyed to the said Richardson the land described in the plaintiff’s petition. The deed of conveyance to Richardson contained the usual general warranty clause, and retained the vendor’s lien upon the land therein conveyed to secure the payment of the notes. On the 9th day of October, 1906, W. C. Dawdy, for a valuable consideration then paid by L. E. Brannin, one of the plaintiffs herein, and who was then and there acting as the agent of and for L. B. Rivers, sold and assigned all of the said notes to said L. B. Rivers, said assignment being in writing and duly acknowledged, and conveyed to L. B. Rivers all .the title and interest of W. C. Dawdy to said lands, as well as to said notes. On the 19th day of October, 1906, Barton M. Richardson and Catherine Richardson, in consideration of the payment to them of the sum of $422.26 by A. B. Teston and the assumption by Teston of the payment of the notes herein sued upon, as well as of said note for $160, sold and conveyed to said A. B. Teston the land described in the plaintiffs’ petition, and that had been sold to the Richardsons by Dawdy; this deed also containing the usual covenants of warranty. Teston on the same day paid to L. E. Brannktj as the agent of L. B. Rivers, the $160 note which, is not involved in this suit. Thereafter, in July, 1907, the Waples-Platter Grocery Company instituted suit in the district court of Eastland county against A. B. Tes-ton and others to recover the Thomas Benson Survey of land, of which the land conveyed by W. C. Dawdy to the Richardsons and by the Richardsons to the defendant A. B. Teston was a part. L. E- Brannin _ owned a part of the Benson Survey at the time, and was made a party to and defendant in the suit, as did also A. B. Teston. Other parties claiming to be the heirs of Thomas Benson intervened in the suit. Appellant A. B. Teston, as stated, contested the claim of the opposing parties; but the trial resulted in a judgment in favor of the plaintiffs and interveners in that suit for all of the land so purchased by Teston, excepting 183/36o, and this judgment has never been set aside. It is agreed that at the time of the sale of the notes in controversy by Dawdy, L. B. Rivers took them without any notice of any defect in the title to the land for which they were given, further than she could in law be charged with by reason of the execution and record of the deed from Dawdy to Barton M. Richardson and from the Richardsons to A. B. TestOn and the recitations in the note, but the agreement is silent as to whether the plaintiff L. E. Brannin, as agent for L. B. Rivers, had or had not notice of any defect of title in the land; the agreement in this respect being: ‘In the purchase of the said notes herein sued upon the plaintiff L. E. Bran-nin, as agent of L. B. Rivers, acted for and on behalf of the said L. B. Rivers, and the said L. B. Rivers was not a bona fide purchaser of said notes, unless the said L. E. Brannin would have been a bona fide purchaser thereof had he purchased them for himself and on his own behalf.’
“The judgment for $250.40 against appellee Teston amounts to but 133/3go part of the total sum assumed by Teston in the deed from the Richardsons to him, and the comjfiaint of the judgment is that the appellants and plaintiffs below were entitled under the agreed facts to a judgment for the total amount; the contention in behalf of appellants being that L. B. Rivers was_ an innocent purchaser for value of the notes in controversy, and therefore, took them by virtue of article 307 of our Revised Statutes, free of Teston’s defense of a partial failure of the consideration for which they had been executed. Appellee, 6n the other hand, contends that the recitations of the deeds and notes referred to affected Rivers with notice of the defect in title, by reason of which Teston later lost the greater part of the land purchased by him.”

As seen from the foregoing statement, the trial in the district court resulted in a judgment for plaintiffs in error against A. B. Tes-ton for only an amount equal to the value of the portion of the land to which the title had not failed; in other words, the trial court gave full effect to Teston's’ plea of failure of consideration. The honorable Court of Civil Appeals sustained this holding. The plaintiffs in error presented here their petition for writ of error, which1 was granted by this court

It is contended by the plaintiffs in error that, as the executors of the estate of L. B. Rivers, they are entitled to recover judgment against A. B. Teston for the full amount of the Richardson notes, whose payment Tes-ton assumed when he purchased the land from the Richardsons, and that the defense of failure of consideration is not available to Teston,- since L. B. Rivers was an innocent purchaser of said notes before maturity. It is contended by Teston that L. B. Rivers was not an innocent purchaser without notice, by reason of the recitals in the notes and in the deed, which were the usual recitals so common in use in the sale of real estate. It is not contended that L. B. Rivers, in fact, knew there was a defect in the title to the land, but it is contended that the recitals themselves amounted to notice of such defect, either actual or constructive. We do not think these recitals amounted to notice, or that they were sufficient to put L. B. Rivers upon inquiry for a defect of title. These-recitals only advised Rivers, the purchaser of the notes, that they were secured by vendor’s liens which were retained in the deed in which the land was conveyed. They contained no information that a defect in the title to said land existed. Neither did they contain any facts which would arouse even the suspicion of a prudent person that a defect existed, and were therefore insufficient to put Rivers upon inquiry for such defect. The contention by Teston that the recitals in the notes and the deed constituted notice to L. B. Rivers of the defect must be overruled.

It was held by the honorable Court of Civil Appeals that the notes sued upon should be offset to the extent of the value of. the land to which the title had failed, although L. B. Rivers was an innocent purchaser of the notes before maturity, on the ground that Teston was only liable on his assumption agreement, for which reason it was believed that Teston’s obligation was not such as falls within article 307 of the Revised Statutes. We believe this holding to be erroneous. When Teston contracted with the Richardsons to assume the payment of these notes, which were then owned by Rivers, he became legally boun<j for their payment, notwithstanding there was no privity of contract. Spann v. Cochran & Ewing et al., 63 Tex. 240; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Wallace v. Freeman & Co., 25 Tex. Supp. 91; Bank of Garvin v. Freeman, 181 S. W. 187. This rule which binds Teston to Rivers on the assumption, even in the absence of privity of contract, has been evolved from the rule of equity which vests in the payee of a note an interest in any collateral security which may have been given by the principal on such' note to his surety, and allows such payee a resort to such additional security to enforce the payment of the note. Keller v. Ashford, 133 U. S. 610, 10 Sup. Ct. 494, 33 L. Ed. 667; Johns v. Wilson, 180 U. S. 440, 21 Sup. Ct. 445, 45 L. Ed. 613. In a suit on such an assumption contract as is presented here, the assumption contract is regarded as the additional security to which the payee, Rivers, through his executors, may resort for the collection of the notes sued on. The rule allowing a recovery on such assumption contract is not only the established rule in Texas, but it is the general rule in other jurisdictions.

We think that, when Teston bound himself to assume the payment of said notes, he then occupied the position of an original promisor. 1-Iis relation became that of principal, and the Richardsons’ that of sureties. Long v. Patton, 43 Tex. Civ. App. 11, 93 S. W. 519. He took the position of the Richard-sons, who had originally executed the notes, and was bound for their payment as a primary obligor. Hill v. Hoeldtke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Hoeldtke v. Hortsman (Civ. App.) 128 S. W. 642. Could the Richardsons, if sued by Rivers on said notes, have pleaded in defense a failure of consideration? Undoubtedly they could not, because such defenses as payment, offset, and other equities are unavailing as against the notes in the hands of an innocent purchaser before maturity. If the Richardsons could not plead such defense, it necessarily follows that Teston, who occupied Richard-sons’ place, could not do' so. The Richard-sons were the makers of the notes, and by reason of this fact were denied, under article 307, Revised Statutes, the privilege of pleading as against an innocent purchaser such as Rivers a failure of consideration, or any other such “just discount.” Article 307, Revised Statutes, is as follows:

“Any person to whom any of the said negotiable instruments may have been assigned, may maintain any action in bis own name which the original obligee or payee might have brought; but he shall not only allow all just discounts against himself, but, if he obtained the same after it became due, he shall also allow all just discounts against the assignor before notice of the assignment was given to the defendant; but should he obtain such instrument before its maturity, by giving for it a valuable consideration, and without notice of any discount or defense against it, then he shall be compelled to allow only the just discounts against himself.”

Now, since the statute fixed the status of the Richardsons in a way that denied them the right to plead any “just discount” against Rivers, and since Teston assumed the Richardsons’ obligations, he necessarily assumed the obligations as they existed, under which the Richardsons were denied the right to plead a failure of consideration. This results from his contract to take the Richardsons’ place and assume their obligations as they then existed. It is very true that Teston could have pleaded this equity as a defense if the suit had been by the Rich-ardsons, who sold him the land. But it does not follow that he can plead it against L. B. Rivers, who was an innocent purchaser before maturity. The settled principles of the law merchant deny him this righR Under article 307, Revised Statutes, and under the law merchant, even a plea of payment cannot constitute a defense against such innocent .purchaser. To allow a set-off for a failure of consideration to be pleaded as a defense to a note in the hands of such an innocent purchaser, and at the same time to deny as a defense, under the same circumstances, the actual payment of the note, which is the settled law, would appear, indeed, an amazing contradiction. It should not and cannot exist. 1-Iow could it be allowed that Teston could plead as an offset, under such circumstances, the failure of consideration, when under the law merchant, as well as under article 307 of the Revised Statutes, in his attitude he could not plead any other kind of offset when the suit was by an innocent purchaser before maturity? To so hold would be to allow a plea of failure of consideration to be of greater dignity than the plea of actual payment of the note. Such a holding could not be justified upon any principle known to us.

We conclude that the Court of Civil Appeals erred in holding that Teston’s plea of failure of consideration was available as a partial defense to the payment of said notes.

We also think the Court of Civil Appeals erred, as did the trial court, in denying a recovery to the plaintiffs in error for the attorney’s fees provided for in said notes. There was a provision in each note for 10 per cent, attorney’s fees to become due and payable in case the notes should be placed with an attorney for collection, or if collected by suit. This entitled the plaintiffs in error to recover the attorney’s fees without the necessity on their part of proving the reasonable value of the services rendered, in the absence of proof to the effect that such amount was unreasonable. There was formerly a conflict upon this question among some of the decisions of the Courts of Civil Appeals, but the question was settled by this" court, as indicated herein, in the case of First National Bank of Eagle Lake v. Robinson, 104 Tex. 166, 135 S. W. 372. The plaintiffs in error are entitled in this case to recover the attorney’s 'fees sued for; there being no evidence that the amount provided for by contract is unreasonable.

The judgments of the Court of Civil Appeals and of the district court are reversed, and judgment is here rendered against A. B. Teston and in favor of the plaintiffs in error for the amount of principal, interest, and attorney’s fees due on the notes in suit, and against A. B. Teston, Barton M. Richardson, and Catherine Richardson for a foreclosure of the vendor’s lien against the land and premises described, as prayed for, together with all costs of suit.
      ©ssfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    ROBISON v. STATE.
    (No. 4039.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    1. Criminal Law <©=>1159(3)—Appeal—Con-flict in Evidence—Grounds eor Reversal.
    Where there was positive conflict in evidence, there being testimony to support the information, the court will not reverse a verdict of guilty for insufficient evidence.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <©=>1159(3).]
    2. Criminal Law <©=>1170(1)—Appeal and Error—Harmless Error.
    In a prosecution for violation of the pistol jaw, error in excluding defendant’s testimony offered to explain why he was at a negro dance and that he had been in this negro dive three times, twice as a peace officer, and on the occasion in question, through curiosity, to watch the negroes dance, was harmless.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3145, 3149-3152; Dec. Dig. <©=>1170 (1).]
    '3. Witnesses <©==>48(1)—Competency—Accu-sation op Crime.
    The fact that a witness was under indictment for felony, even though charged with as■sault with intent to murder the same person at the same time as the defendant, did not render him an incompetent witness for the state.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 109, 110, 113; Dec. Dig. <©=> 48(1).]
    4. Criminal Law <©=>881(2)—Trial—Verdict —Sufficiency.
    Where the defendant was charged with carrying a pistol, a verdict finding him guilty and assessing ■ a fine is sufficient and responds to the information.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2093; Dec. Dig. <©=>881(2).]
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    J. W. Robison was convicted of violating the pistol law, and he appeals.
    Affirmed.
    J. D. Barker, of Roby, for appellant.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the pistol law, his punishment being assessed at a fine of $100.

The evidence is in direct and positive conflict. The state shows appellant had the pistol at the time and under the circumstances stated in the facts. The evidence for the appellant contradicts emphatically and strongly the state’s witnesses and testimony. The record being in this shape on the sufficiency of the evidence, this 'court would not be justified in reversing for this reason.

A bill of exceptions was reserved to the action of the court sustaining the state’s exception to testimony offered to explain why appellant was at a negro dance and supper at the time the pistol was said to have been exhibited. The evidence which was excluded was as follows:

“I have been down to this negro dive three times during the fall and winter. I went two times at the instance and request of R. I. Smith, constable of precinct No. 3, Fisher county, Tex., as a peace officer. Christmas time, the last time, the time of the trouble occurred, I went along with several friends, just merely to bo going, through curiosity, to watch the negroes dance.”

This was offered as an explanation of his presence at the negro dance and supper. While this testimony may have been admissible, it' is of no weight or moment. It would make no material difference why appellant was at the place of the negro function if he had a pistol and exhibited it, unless he had the right to carry it under some statutory exception. It is not claimed that his visit on this occasion was as a peace officer. Whether this testimony was erroneously rejected or not, it is not of sufficient importance, even if the court was in error, to require a reversal.

Another bill recites that, while Albert Simpson was testifying for the state, he was asked the following question by state’s counsel:

“Were you the negro who was fighting Louis Lockett, and did you have a pistol, and did you shoot Louis Lockett?”

Appellant objected: First, because Albert Simpson was charged with assault with intent to murder the same man at the same time; second, being charged with the offense of assault with intent to murder, same being a felony, he was not a competent witness for the state. We do not think there is any merit in any one of these grounds. The court having overruled both, the witness further testified as follows:

“Yes; I was fighting Louis Lockett. I did not have a pistol. I did not shoot Louis Lock-ett. I do not know who shot him. Yes; I am now confined in jail under charge with assault with intent to murder.”

The fact that the witness stands charged with a felony under an indictment does not render him incompetent as a witness for the state, even when he is indicted for the same offense as the party on trial. The statute permits the use of such witnesses under the circumstances stated in the statute.

It is also contended that the verdict is insufficient, unintelligible, unmeaning, and does not respond to the information filed, and is not clear as to its meaning, said verdict being word for word as follows:

“We, the jury, find the defendant guilty, and assess his punishment at one hundred dollars.
“[Signed] J. A. Waddell, Foreman.”

We are of opinion that the verdict is sufficient. It responds to the information and to the court’s charge. Appellant was only charged with carrying a pistol, and the court appropriately charged the punishment. We think the verdict is sufficiently intelligible, and not subject to the criticisms.

The judgment will be affirmed.
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