author: CONLEY, C. J.

text:
    CAIN, County Attorney, v. GARVEY et al.
    (No. 156.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 22, 1916.)
    1. Intoxicating Liquors <&wkey;S4(5) — Local Option — Ballots.
    Rev. St. 1911, art. 5719, prescribing the form of local option election ballots, is mandatory.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. <&wkey;>34(5).]
    2. Intoxicating Liquors <&wkey;25 — Local Option-Election .
    The local option law (Rev. St. 1911, art. 5715 et seq.) is penal, and, unless its provisions are strictly followed, an election thereunder is void.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 31; Dec. Dig. 4&wkey;25.]
    3. Statutes &wkey;>218 — Construction — CONTEMPORANEOUS CONSTBUCTION.
    Where a statute is ambiguous, great weight will be given to its contemporaneous construction by other departments of the government.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. §§ 294, 295; Dee. Dig. &wkey;218.]
    4. Intoxicating Liquors <&wkey;34(5) — Local Option — Form of Ballot.
    Rev. St. 1911, art. 5719, requiring local option ballots to bear the words “Official Ballot,” “For Prohibition,” and “Against Prohibition,” requires a three-line, not a five-line, ballot, especially where it also requires voters to draw “a line” through one of the last two phrases.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. <&wkey;34(5).]
    5. Intoxicating Liquors &wkey;>34(5) — Local Option — Ballots—Authority to Furnish.
    Under Rev. St. 1911, art. 5719, requiring the clerk of the county court to furnish local option ballots, held, that the duty cannot be delegated to another.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. <&wkey;>34(5).]
    6. Intoxicating Liquors <&wkey;34(5) — Local Option — “Official Ballots.”
    Under Rev. St. 1911, art. 5719. requiring the clerk of the county court to furnish local option ballots, and prohibiting the use or counting of any except official ballots, the term “official ballots” refers to those furnished by the clerk.
    [Ed.. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dee. Dig. <&wkey;34(5).
    For other definitions, see Words and Phrases, First and Second Series, Official Ballot.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Action by Ed Garvey and others against 0. H. Cain, County Attorney. Judgment for the plaintiffs, and defendant appeals.
    Affirmed.
    C. H. Gain, of Liberty, and Townes & Vinson, of Houston, for appellant. George G. Clough, of Galveston, and E. B. Pickett, Jr., of Liberty, for appellees.
   CONLEY, C. J.

This suit was instituted by appellees to contest the local option election held in commissioners’ precinct No. 3, Liberty county, on the 29th day of December, 1915, in substance upon the grounds that the ballots used in two of the voting boxes were not official ballots furnished by the clerk of the county court of Liberty county, as provided by law, but were ballots furnished by some other persons in confederation with the active Prohibition party in said precinct, and that they were fraudulently and wrongfully inserted in the election boxes with the election supplies; that such ballots were trick or deceptive ballots, and were formed and devised to deceive and trick persons in voting the same; that as a result of the use of the said ballots the voting box of Dolen gave a majority of 13 in favor of prohibition, and the voting box at Hightower gave a majority of 26 in favor of prohibition; that large number of the voters of said precinct were illiterate working people and unused to the interpretation and construction of the English language; that they were deceived by said ballot, and that they were prevented by the presiding officers of the election, who were active Prohibitionists, from expressing their true wishes in said election, and that they were wrongfully advised and solicited by the officers of said election in the manner and way they should vote said ballot to express their voice as they desired; that by reason of the wrongful conduct on the part of the officers of said election and the furnishing of such ballots more than 50 voters were deprived of their votes, and that but for such illegal action of said officers the. result of said election would have been materially different, and a different result would have been obtained, and that by reason of the confusion arising out of the premises a large number of the voters were deprived of the right to vote fairly and honestly, and that it is impossible to arrive at the true result of the election, and that the total number thus deprived of their legal vote through said deceptive ballot fully exceeded the number found in favor of prohibition. The contestant also challenged at the various voting boxes the votes of 17 voters as having voted for prohibition as being illegal voters for various grounds named in the petition. The contestants likewise challenged the election because of lack of uniformity and mutuality in the form of the ballot.

The contestee answered, denying generally and specially the allegations in the petition, and specially answered in substance affirming the legality of the election, and specially denying the charges made by the contestants.

The trial of this cause consumed five days, and the record is vffiuminous. The trial court found the election void, and entered judgment accordingly, from which the appellant has perfected an appeal in due season to this court. Upon request of the contestee the trial court filed the following findings of fact and conclusions of law;

“Findings of Fact.
“(1) That an election was held December 29, 1915, in and for commissioners’ precinct No. 3, Liberty county, to determine whether the sale of intoxicating liquor should be prohibited, and that in due season the result was declared by the commissioners’ court to be For Prohibition by a majority of 49 votes.
“(2) That contestants filed their contest of said election, and served a true copy of the grounds of contest on the contestee within 30 days after the date of the declaration of result.
“(3) That contestants are duly qualified voters in and residents of commissioners’ precinct No. 3 of Liberty county, and were on the 29th day of December, 1915, and at the filing of the contest, and in all things qualified to bring said contest.
“(4) That there are four voting boxes in said precinct, to wit, Cleveland, Tarkington, High-tower, and Dolen.
“(5) That there was first ordered an election to be held November 6, 1915, but the same enjoined because of illegal requirements in said order mentioned, and- the same was not held.
“(6) That on or about October 26, 1915, the county judge of Liberty county ordered from Clark & Courts, of Galveston, four sets of election supplies for such election, and in said order expressly requested Clark & Courts not to send any ballots, stating that he then had a sufficient number on hand.
“(7) That Clark & Courts filled said order, but that such supplies come in sets and include 2 packages of 200 ballots each, in each set, and that Clark & Courts did send to the county judge the ballots included in the supplies, and a total of 1,600 ballots reading as follows:
Official Ballot For Prohibition Against Prohibition
—and that said supplies and ballots were received about November 15, 1915.
“(8) That on the date November 5, 1915, there was on hand in the Office of the county judge 26 packages of 200 each of the same ballots, 501 of the same form, but different size and type, and about 400 of the same form, but of different type and size, together with a lot of sundry other official ballots used and to be used in road, special school, and irrigation dis-ti'icfc elections
“(9) That on and about the 30th day of December, 1915, there was printed at Conroe, in Montgomery county, at the solicitation of the Prohibition campaign committee, and with their campaign literature, a blank form purporting to be an official ballot, of the following form-:
Official Ballot For
Prohibition Against Prohibition
“That said alleged ballot was upon a form made up without the knowledge, consent, or approval of the county clerk, county judge, or clerk of the county court, and that the county clerk had no knowledge of the transaction.
“(10) That the five-line ticket referred to in finding No. 9 was a private ballot or ticket designed and intended to be used by the prohibition committee, that the same was delivered by the printer to the Prohibition party, and by the Prohibition party delivered-to O. N. Smith, who was county judge, and an active member of said Prohibition party, and that the same was designed, printed, and furnished for the purpose of having the same fraudulently and surreptitiously inserted in the ballot boxes with the regular election supplies to deceive ignorant voters of either voting a mutilated ballot or voting contrary to their choice.
“(11) That after said fictitious ballots had been printed said O. N. -Smith, as county judge, without any authority whatever from the county clerk, sought to ratify the printing of said fictitious ballots by the campaign committee of the Prohibition party by delivering an order therefor to the Prohibitionists under date of December 21, 1915, and after this contest had been commenced, and on, to wit, February 4, 1915, the printers presented a bill to the said G. N. Smith, county judge, for $3 for printing said tickets, and the same was presented to the commissioners’ court and ordered paid after this trial had commenced.
“(12) That in the voting boxes of Dolen and Hightower the alleged five-line ballot so privately printed and furnished by the Prohibitionists was used exclusively by the voters in voting, and that in the voting boxes of Tarkington and Cleveland the three-line ballot furnished by the clerk of the county court of Liberty county was used exclusively.
“(13) That the five-line ballot so privately printed and furnished at the instance of and by the Prohibition party was surreptitiously inserted in the election boxes so as to make it appear - that the same was an official ballot, without the knowledge, consent, or approval of the clerk of the county court of Liberty county, Tex.
“(14) That the intent to use the five-line ballot so used in voting in the boxes of Dolen and Hightower was unknown to the county clerk, and the printing thereof and the form of the same concealed from him, that he was not consulted about the form of the ballot, the arrangement of the words thereon, and was not asked to and did not’furnish the form or request any one else to do so, or to have any such ballots printed, and that had he been so consulted or had he been requested to have the ballots printed, or, had he requested some one else to do so, he would have furnished the form, and had ¡the ballots printed in the following form, to wit:
Official Ballot For Prohibition Against Prohibition
“(15) That the official ballots which were furnished by clerk of the county court to be used in this election were brought to him with and as a part of the election supplies by the county judge, and that the ballots so brought to him with. such election supplies, exhibited to him, and inserted in the boxes by him, and in his presence, and with his consent, were the three-line ballots which were used in holding the election in Cleveland and in Tarkington, and which were not used, but returned as unused ballots in the voting boxes of Dolen and High-tower, _ and that no other ballots except such three-line ballots were put in said boxes either by himself or by any other person in his presence or with his knowledge and consent.
“(16) That the returns of said election show the following result:
Cleveland.For Prohib. 90 Against Prohib. 125
Tarkington. “ “ 66 “ “ 21
Dolen. “ “ 26 « “ 13
Hightower. “ “ 49 " “ 23
Totals.231 182
—and that the result as shown by opening the boxes and counting the ballots in open court in the Dolen and Hightower boxes is as follows: Dolen, 13 ballots of which the fourth and fifth lines were struck, 7 ballots of which the second and third lines were struck, and 19 ballots which could not be counted, because so defectively marked that the same could not be counted. Hightower, 39 ballots of which the fourth and fifth lines were struck, 21’ballots, of which the second and third lines were struck, and 12 ballots which could not be counted because defectively marked.
“(17) That in the Dolen and Hightower boxes there was great confusion arising out of the form of ballot and the manner in which the proposition to be voted on was printed thereon,that the judges of election were not sufficiently advised how to properly mark said ballots, and that in the Dolen box Mr. Shaw, a judge, and Mr. Langston, a clerk, did not know how to vote and how to mark the tickets, and each of them voted For Prohibition when they intended to vote Against Prohibition, and that Mr. Shaw was appointed to assist the voters in marking said ballot.
“(18) That in the voting boxes of Dolen and Hightower, where the private 5-line ballot was exclusively used, a large number of qualified voters, 23 in number, voted a ballot either reading ‘For Prohibition’ or mutilated, hut all of which ballots were received by the election judges and counted as votes ‘For Prohibition,’ when in truth and in fact they intended to vote against prohibition, and would have voted against prohibition had they been given the official ballot to scratch, as furnished by the clerk of the county court.
“(19) That in all elections heretofore held in Liberty county (save and except that one set aside by the court about the year 1910 known as the ior and against ‘local option’ ballot) the ballots used were the conventional three-line official ballots.
“(20) That on the 28th day of December, the day before the election, L. A. Isaacks, in conjunction with other active Prohibitionists, had privately printed for use in the election in the boxes of Dolen and Hightower and Tarkington approximately 500 of the five-line ballots for the purpose of having the same used, if possible or necessary, in the said Hightower, Dolen, and Tarkington precincts, for the purpose of deceiving and tricking negroes and ignorant persons either to mutilate their ballot or into voting for prohibition instead of against prohibition as might be their wish, and that said ballots were printed and intended to be used in such election without the knowledge, consent, or approval of the clerk of the county court of Liberty county, who was not consulted with reference thereto.
“(21) That the three-line ballot as used in Cleveland and Tarkington and the five-line ballot as used in Dolen and Hightower are not uniform either in quality of paper, size of ballot, size of type, style, and form.
“(22). That J. J. Whatley, who voted by scratching the fourth and fifth lines of tie ballot used at Hightower, and whose vote was counted for prohibition, was 59 years of age on January 1, 1914, and that at said date he resided in Liberty county, Tex., and that he was not exempt from paying a poll tax to Liberty county and tlje state of Texas on said date, and that he voted in said election on the honestly erroneous impression that, if he became 60 years of age during the year, he would be exempt from paying poll tax.
. “(23) That D. W. Jackson, Jr., who voted at Tarkington for prohibition, had not been a resident of commissioners’ precinct Ño. 3 for six months prior to the date of election, but that he moved from another commissioner’s precinct into commissioners’ precinct No. 3 only about two weeks before- the date of said election.
“(24) That Solly Gillen, who voted in Tarkington precinct for prohibition, had no poll tax receipt, and had not paid his poll tax for the year 1914, that on January 1, 1914, ho was a resident of Liberty county, Tex., in no way exempt, and liable for a poll tax to Liberty county and the state of Texas, and that he voted in said election. He voted upon a 1915 poll tax receipt under the impression that the possession of the 1915 poll tax receipt authorized him to vote.
“(25) L. A. Buckaluw, who voted in Cleveland precinct for prohibition, voted upon a poll tax receipt for 1914 issued by San Jacinto county, but that Buckaluw was an adult January 1, 1914, and actually resided at said date in Walker county, Tex., and was liable to Walker county for a poll tax.
“(26) That O. J. Wullschlager, who voted in Dolen by striking the fourth and fifth lines of the ballot, was a resident of Liberty county January 1, 1914, and liable for a poll tax therein, and that he did not pay said poll tax, being under the impression because one of his limbs was withered that he was not liable therefor, that said voter is capable of and is earning a living as a telegraph operator, and is not totally disabled, and that he has not lost either of his hands, or Ms feet or any part thereof by severance from the body.
“Conclusions of Law.
“(1) That the act of 1909 providing for the form of official ballot, being article 5719 of Vernon’s Sayles’ Texas Civil Statutes, is mandatory, and must be strictly followed to give validity to an election having for its purpose the prohibiting of the sale of intoxicating liquors within a given territory.
“(2) That the five-line form of ballot which was used and voted in the voting boxes of Dolen and Hightower is not authorized by the law, and that article 5719, providing for the form of the ballot, contemplates that such form shall be of three lines, and that upon the top line there shall be the words ‘Official Ballot,’ and that on the next line shall be the words ‘For Prohibition,’ and that on the third line or last line shall be the words ‘Against Prohibition.’
“(3) That the term ‘Official Ballot,’ as used in article 5719, means the ballot officially furnished by the clerk of the county court, and of the form prescribed in said article.
“(4) That the fact of printing the words ‘Official Ballot’ at the top of the privately furnished five-line ballot used in Dolen and Hightower boxes and handed out to the voters by the officers of election does not constitute it an official ballot within the terms of the law.
“(5) That J. J. Whatley was an illegal voter of Hightower voting precinct.
“(6) That D. W. Jackson and Solly Gillen were illegal voters of Tarkington precinct.
“(7) That L. A. Buckaluw was an illegal voter in the Cleveland precinct.
“(8) That O. J. Wullschlager was an illegal voter in the Dolen precinct.
“(9) That the local option election held December 29, 1915, in and for commissioners’ precinct No. 3 of Liberty county is void, and should be set asido: (a) Because of the use of illegal and unofficial ballots in two of the- four voting boxes of said precinct; (b) because of lack of uniformity in the printing, style, and form of the ballots used in said election; (e) because of the use of ballots in two of the voting boxes privately furnished by the Prohibitionists and surreptitiously inserted in the election supplies and designed and furnished with the intent to and which did deceive and confuse all parties using it, voters and officials alike; (d) because of the failure of the election judges to use the three-line official ballot in the Dolen and Hightower boxes, though furnished and on hand in and with the election supplies for such use; (e) because it is impossible to ascertain the true and probable result of this election, due to the use of a defectively marked five-line ballot illegally used in the Dolen and Hightower boxes to ■the exclusion of the official and statutory three-line ballot used in Cleveland and Tarkington, and a sufficient supply of which were furnished to the election officers in Dolen and Hightower, and which they did not use.”

The first 122 pages of appellant’s brief, being assignments of error 1 to 11, inclusive, constitute an attack upon the court’s fifth, ninth, tenth, eleventh, twelfth, fourteenth, seventeenth,, eighteenth, nineteenth, and twentieth findings of fact. In these assignments it is contended that such findings are either not supported by the evidence or are contrary to tlie evidence. It would serve no good purpose to set out in detail the evidence, which we have carefully examined, bearing upon these various findings of fact, and which is relied upon by the contending parties to sustain or refute said assignments, but suffice it to say that, although the evidence upon the issues in controversy is conflicting, still there is ample support to be found in the testimony to sustain all of the court’s findings, except perhaps the fifth which is upon an immaterial matter. Under such circumstances we would not be authorized nor justified in disturbing the trial court’s action. The law has wisely placed in the trial court the power to determine conflicting issues of fact, and it, having had an opportunity to see and observe the witnesses as they testified, and to study their demeanor and conduct while on the stand, is in a jnuch better position to arrive at a true and correct conclusion affecting the contention of the parties than we would be, who must, of necessity, rely only upon the motionless and impersonal words of the witnesses to guide us. A cold and lifeless record can never give a true and perfect reproduction of the effect of evidence, nor convey the unsaid and secret purposes and motives which are reflected in the expression, conduct, demeanor, and general appearance of the witnesses. These assignments of error, and the others leveled at the conclusions of law based thereon, are overruled.

There seem to be three other fundamental questions presented by appellant’s brief in the remaining assignments of error. We shall consider such questions in the following order and regardless of the numerical assignments as found in the brief, to wit:

First, whether or not the statutes of this state require the official ballot used in local option elections to be written or printed in three-line form, to wit:

“Official Ballot For Prohibition Against Prohibition.”

Second, a proper construction of the terms of article 5719 of the Revised Statutes requiring:

“That the clerk of such court shall furnish the presiding officer of each voting box within the proposed limits with a number of such ballots to be not less than twice the number of the qualified voters at such voting box.”

Third, whether all of the ballots to be used in the different voting boxes in a local option election are required by law to be printed in the same number of lines and uniform in paper, style and printing.

Article 5719, Revised Statutes of Texas, reads as follows:

“Form of Ballot, FHo. At said election the vote shall be by official ballot, which shall have printed or written at the top thereof, in plain letters the words ‘Official Ballot.’ Said ballot shall have also written or printed thereon the words, ‘For Prohibition’ and the words ‘Against Prohibition;’ and the clerk of the county court shall furnish the presiding officer of each voting box within the proposed limits with a number of such ballots, to be not less than twice the number of qualified voters at such voting boxes; and the presiding officer of each such voting box shall write his name on the back of each ballot before delivering the same to the voter, and the person offering to vote at such election shall, at the time he offers to vote, be furnished by such presiding officer with one such ballot; and no voter shall be permitted to depart with such ballot, and shall not be assisted in voting by any person except such presiding officer or by some officer assisting in the holding of such election, under the direction of such presiding officer when requested to do so by such voter.
“Those who favor the prohibition of the sale of intoxicating liquors within the proposed limits, shall erase the words, ‘Against Prohibition’ by making a pencil mark thi’ough same. No ballot shall be received or counted by the officers of such election that is not an official ballot, and that has not the name of the presiding officer of such election written thereon in the handwriting of such presiding officer, as required by this article.”

The courts have had. occasion to consider the provisions of this statute in recent decisions. Gomez v. Timón, 128 S. W. 656; Griffin v. Tucker, 51 Tex. Civ. App. 522, 119 S. W. 338; Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635.

In the Griffin Case, 119 S. W. supra, the ballots, instead of containing the words required by statute, to wit, “For Prohibition” and “Against Prohibition,” had printed on them “For Bocal Option” and “Against Local Option.” Referring to this failure to comply with the express provisions of the statute, the court said:

“The statute prescribing the form of the ballot is mandatory and must be strictly followed. It may be a reasonable inference that those who voted for local option intended to vote for prohibition and those who voted against local option intended to vote against prohibition, but the literal meaning of the words is entirely different, and, under the mandatory provisions of the statute before quoted, the intention of the voter must be expressed by writing or printing upon his ballot the words prescribed in the statute, and cannot be left to inference or be shown by parol evidence. The local option law is a penal law, and it has been uniformly held by our Court of Criminal Appeals that, unless it is strictly followed in all of the proceedings necessary to put it into operation, the order declaring it to be in force in the particular territory is void. In the case of Ex parte Kremer, 19 Tex. App. 123, that court, in passing upon the validity of a local option election, says: ‘If the election was not conducted in accordance with the requirement of the law, it is void, and not merely voidable, and all proceedings had under.and by virtue of such void election are absolutely void, and may be questioned not only directly but collaterally.’ Boone v. State, 10 Tex. App. 418, 38 Am. Rep. 641; Prather v. State, 12 Tex. App. 401; Ex parte Conley (Tex. Cr. App.) 75 S. W. 301. While the ballots reading ‘For Local Option’ and ‘Against Local Option’ cannot be counted for or against prohibition, they were votes polled at the election, and neither the ballots reading ‘For Prohibition’ or ‘Against Prohibition’ are a majority of all the votes polled, and therefore the result of the election is impossible of ascertainment from the face of the returns. The use of these illegal ballots which were furnished the voters by the officers of the election, being such an irregularity as renders the result of the election impossible to be arrived at, under the provisions of article, 3397, before quoted, the election must be de-dared void, and the proper officer ordered to order a new election.”

This cause was certified to the Supreme Court (Griffin v. Tucker, 102 Tex. 420, 118 S. W. 635), and that court affirmed the holding of the Court of Civil Appeals on the question involved.

In the Gomez Case, supra, the ballots were all on separate pieces of paper. On one was printed “For Prohibition” and on the other “Against Prohibition”, and neither contained the words “Official Ballot.” In considering this matter the court said:

“Whether or not the court erred in sustaining the demurrer and special exceptions to the petition of contestant depends on whether the act above quoted prescribing- the form of ballots to be used in local option elections is mandatory. If it is, then, according to the plain allegations of the petition, the ballots used in the election were not official ballots as prescribed by the act, and should not have been received or counted. In State v. Connor, 86 Tex. 133, 23 S. W. 1103, Judge Brown for the Supreme Court, construing articles 1694 and 1697, Rev. St. 1879, brought forward in the revision of 1695 as articles 1738 and 1741, which provide that one of the judges of elections shall write upon each ballot the voter’s number corresponding with the number on the clerk’s poll list, and that ballots not so numbered should not be counted, says: ‘It is unnecessary to discuss the difference between directory and mandatory statutes. The law commands that the number shall be written on the ballot, and forbids those not numbered to be counted. Taking the two articles together, and especially in connection with section 4, art. 6, of the Constitution, there can be no doubt that they are mandatory. “A clause is directory when the provision contains mere matter of direction and no more; but not so when followed by words of positive prohibition.” Bladen v. Philadelphia, 60 Pa. 466; Pearce v. Morris, 2 Ad. & El. 96. Prohibitory words can rarely if ever be directory. There is but one way to obey the command “thou shalt not,” which is to abstain altogether from doing the act forbidden.’
“Tested by the above rule, we think that the requirements of the act under discussion as to the character of the ballots to be used are mandatory ; and, treating the allegations of the petition to he true, as we must as against the demurrer and exceptions, it stated a good cause of action, and that the action of the court in sustaining the demurrer and special exceptions was error, for which the judgment of the court below must be reversed and the cause remanded.”

It is to be seen that these authorities determine: First, that Revised Statute, § 5719, prescribed the form of the ballot; second, that the provisions of the said statute prescribing said form are mandatory; and, third, that the local option law is penal in its nature, and the provisions must be strictly followed, or the election thereunder is void. There are other rules of instruction bearing upon this issue which it may be well here to state.

A statute of this nature, in so far as it affects the sovereign right of suffrage, should receivq such a construction as would tend to assist, promote, and protect the honest and open expression of the voter’s mind, and not one which by any sort of circumstances would create a condition or open up an opportunity for the unscrupulous and evil minded by trick and chicanery to interfere with the expression of the voter’s will. Hanscom v. State, 10 Tex. Civ. App. 638, 31 S. W. 549.

Where there may exist a doubt as to the meaning of a statute, the courts will adopt and follow the contemporaneous and practical construction put upon such statute by other departments of the government, and by those charged with the execution thereof and with the performance of duties thereunder. Acquiescence by the people for many years in such construction and their formed habit of action and custom arising by virtue of such construction are entitled to great weight with the courts and such construction ought to be undisturbed except for manifest error. 8 Cyc. 736 et seq.

The above statute expressly deals with the form of the ballot. The statute says so in express terms', and also by inference. The courts have already declared that the statute prescribes the form of the" ballot, and that such statute is mandatory, and that its provisions as affecting the form of the ballot should be strictly construed. It is to be noticed that the statute: First, provides that the election shall be by official ballot, and that the ballot shall have written or printed at the top the words (as expressly stated in one quotation and conjunctively) “Official Ballot” ; second, that it also shall have written or printed thereon (as expressly provided, in one quotation and conjunctively) “For Prohibition’'; third, that it shall also have written or printed thereon (as expressly provided, in one quotation and conjunctively) “Against Prohibition.” In the natural order of the English language, this will make a ballot of three lines, and there can be no doubt that this was the intent and purpose of the Legislature. This intent is further manifested by the other provisions of the act which prescribes the manner of voting the ballot. Those who favor the prohibition of the sale of intoxicating liquors within the proposed limits shall erase the words “Against Prohibition” by making a pencil mark through the same, and those who oppose it shall erase the words “For Prohibition” by making a pencil mark through the same,” thus:

Official Ballot For Prohibition rAgftást-Pi'ohifcitioa-

Official Ballot —Fo-i- 'Pi-ohibitiasr-Against Prohibition

This form is a literal compliance with the statute, and can be voted by making a pencil mark through the same. The form of the ballot used in the Hightower and Dolen boxes was as follows:

Official Ballot For Prohibition Against Prohibition

Under this form of ballot, it would be impossible to comply with the terms of the statute expressly providing that a line should be run through the words “For Prohibition” or “Against Prohibition,” in accordance with the way the voter wanted to express himself on the issue. It would take two lines to run through the words so as to erase them.

The court ought to be guided by the language of the statute and to give expression to the free and natural meaning which the words convey, and not to give the language such an interpretation as would lead to an unnatural and absurd conclusion, as we necessarily would do if we should allow any sort of ingenious combination to be molded out of the words contained in the statute, as contended for by the appellant.

We cannot follow the assertion that the statute only requires certain words to appear upon the ballot, and that it gives no heed to the form of the words or to the construction of such words into phrases; but, on the other hand, we believe that the act contemplates a three-line ballot, such as above set out, and which is known and referred to in the evidence as the “standard form,” and which has been almost universally prescribed in local option elections, and in universal and practical use by the people since the original enactment of the statute. It is certainly the simplest form and one most likely to give true expression to the voice of the voter.

Article 6719 of the statutes contains a provision which reads as follows:

“The clerk of such court [the county court] shall furnish the presiding officer of each voting box within the proposed limits with a number of such ballots, to be not less than twice the number of qualified voters at such voting box.”

The statute also prohibits the use of any except official ballots, and declares that none except such official ballots shall be received or counted..

There is nothing uncertain or ambiguous about the language used in these provisions. It was the purpose of the law to do away with the furnishing of all private ballots as had theretofore been the practice. For many reasons the privately furnished ballot was unsatisfactory and was open to much fraud and manipulation. This law names a responsible officer as the person to furnish all the official ballots. It declares what should be upon the official ballot, declares what words should be upon such ballot, and fixes the form of such words by quoting them in parenthetical pairs. It fixed the scource from which the ballot should come, and prohibited the use of any except such official ballots; that is to say, such ballots as were furnished to the election officers by the county clerk. Clearly, then, the clerk having the duty of furnishing such ballots, it was incumbent upon him to make up and prepare the form thereof, in compliance with the statute. This is a personal trust reposed in him by the law. He cannot delegate this duty to the county judge, nor to any other officer of the government. The trial court did not err in holding that the term “Official Ballot,” as used in article 6719, means the ballot officially furnished by the county clerk.

Having already reached the conclusion from our investigation of the questions considered that this cause must be affirmed, we do not deem it necessary at this time to express an opinion on the third question above referred to; that is, as to the requirements of uniformity of the ballot in all of the boxes in precinct No. 3, the number of lines, style, printing, quality of paper, etc.

The court did not err in holding the election void and this cause is therefore affirmed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    BASHAM v. STATE.
    (No. 4141.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge. Will Basham was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for aggravated assault, but without a statement of facts or bills of exception. In the absence of these, there is nothing we can review. The judgment is affirmed.


author: HARPER, J.

text:
    COLEMAN v. STATE.
    (No. 4120.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.)
    Appeal from Bexar County Court; Nelson Dy-tle, Judge. W. P. Coleman, Sr., was convicted of negligent homicide, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of negligent homicide, and his punishment assessed at a fine of $200. The record contains no bill of exceptions, and no statement of facts; consequently there is no question presented we can review, the information charging an offense under the law. The judgment is affirmed.


text:
    RAMOS v. STATE.
    (No. 4159.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Appeal from District Court, Galveston County; Robt. G. Street, Judge. J. Ramos was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at imprisonment in the penitentiary for life. The record contains no bill of exceptions, and no statement of facts accompanies the record. No complaint is made to the charge of the court, and no special charges requested. The indictment properly charges the offense, and under such circumstances there is no question presented we can review. The judgment is affirmed.


author: DAVIDSON, J.

text:
    WORSHAM v. STATE.
    (No. 4145.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.)
    Appeal from District Court, Collin County; M. H. Garnett, Judge. Waddell Worsham was convicted of pursuing the occupation of selling intoxicating liquors in local option territory, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of pursuing the occupation of selling intoxicating liquors in local option territory; his punishment being assessed at three years’ confinement in the penitentiary. The record is before us without a statement of facts or bill of exceptions. In this attitude there is nothing presented to this court requiring revision. Therefore the judgment will be affirmed.


author: DUNKDIN, J.

text:
    BULLARD et al. v. LANIUS PRESSED BRICK CO. et al.
    (No. 7579.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 15, 1916.
    Rehearing Denied June 17, 1916.)
    Appeal from District Court, Taylor County; Thomas D. Blanton, Judge. Action by the Danius Pressed Brick Company against George P. Bullard and others. From a judgment for plaintiff, certain defendants appeal.
    Reversed and rendered as to appellants only.
    J. D. Gammon and G. C. Groce, both of Waxahachie, for appellants.
    Ben D. Cox and A. H. Kirby, both of Abilene, for appellee.
   DUNKDIN, J.

The Danius Pressed Brick Company furnished the brick used in the construction of a house of worship for the First Baptist Church of Abilene. E. S. Boze was the contractor who erected the building, and the brick were furnished to him as such contractor. Boze executed a bond, with sureties thereon, to the trustees of the church, and to all persons who might become entitled to liens upon the building, to insure the completion of the work in accordance with the terms of the contract, and also to insure the payment by the contractor of all indebtedness that might be incurred by him in the construction of the building. The present suit was instituted by the Brick Company against the contractor, the trustees of the church, and the sureties on the bond, to recover a balance due for brick so furnished, and to establish and foreclose a furnisher’s lien on the building. From a judgment granting plaintiff the relief so prayed for, certain of the sureties on the bond alone have appealed. The case is a companion to the ease of Bullard v. Norton, decided by our Supreme Court, whose opinion appears in 182 S. W. 668, and the facts of the two cases are the same, except that in the case last mentioned the plaintiff’s claim was that of a subcontractor, instead of that of a furnisher of material. Upon the authority of that decision the judgment rendered by the trial court in the present suit against appellants is reversed, and judgment is here rendered in favor of those appellants. In all other respects the judgment is undisturbed.


author: WILLSON, C. J.

text:
    NORTHWESTERN MUT. LIFE INS. CO. v. WHITESELLE.
    (No. 1634.)

    (Court of Civil Appeals of Texas. Texarkana.
    June 8, 1916.
    Rehearing Denied June 29, 1916.)
    1. Insurance <&wkey;123 — Insurable Interest— Effect of Divorce.
    A wife, named as beneficiary in a life policy to her husband, on being divorced, ceased to have any interest as beneficia^ in the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 168-171; Dec. Dig. &wkey;123.]
    2. Husband and Wife &wkey;>272(l) — Community Funds — Effect of Divorce.
    After divorce, the wife is not entitled to recover of an insurer because community funds were used in paying premiums on a policy on his life.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1003; Dec. Dig. &wkey;272(l).]
    3. Husband and Wife <&wkey;272(l) — Community Funds — Effect of Divorce.
    A judgment of divorce, adjudging that all personal property; of whatsoever kind and character mentioned in the pleadings belong to the community estate, even if construed as including a policy on the husband’s life in favor of the wife, does not give her any interest in the policy after the divorce judgment goes into effect.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1003; Dee. Dig. <&wkey;>272(l)J
    Error from District Court, Navarro County; H..B. Daviss, Judge.
    Action by J. E. Whiteselle, executor, .against the Northwestern Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    December 29, 1891, plaintiff in error issued to J. O. Shook a policy on Ms life for $5,000, payable at bis death to his wife, Carrie B. Shook, if she survived him, and to Ms executors, administrators, or assigns if she did not. By a decree rendered December 8, 1908, and on appeal affirmed February 26, 1910, Carrie B. 'Shook was granted a divorce. January 1, 1912, plaintiff .in error, on the security of the policy it had issued, loaned $1,116 to J. O. Shook, and January 3, 1912, at Ms request and without the knowledge and consent of Carrie B. Shook, so changed the policy as to make it payable at his death to Ms executors, administrators, or assigns, instead of to Carrie B. Shook, without reference to whether she survived him or not. This suit was commenced by Carrie B. Shook and was prosecuted by her until she died. It has since been prosecuted by defendant in error as her executor. In her petition Mrs. Shook alleged that the premiums on the policy were paid with funds belonging to the community estate between herself and her divorced husband, J. O. Shook, and that by the judgment in the divorce suit it was determined that she was the owner of an undivided one-half of the policy. She further alleged that the plaintiff in error, before it made the loan to J. O. Shook and before it so changed the policy as to make it payable to Ms executors, etc., instead, of to her, knew the premiums thereon had been paid with community funds, and knew that the court had determined by its judgment in the divorce suit that she was the owner of one-half of the policy, and promised and agreed it would not, without her consent, make any change in the policy or any settlement involving it with J. O. Shook. She further alleged that plaintiff in error, disregarding its promise, conspired with J. O. Shook, whom it knew, she alleged, to be insolvent, to deprive her of her rights with reference to the policy, and without her knowledge and consent loaned him the $1,116 and changed the policy as stated, and so converted her interests in the policy. She prayed for judgment against plaintiff in error for $2,500, one-half the válue of the policy, or, in the alternative, for a sum equal to one-half the sum of the premiums paid on the policy to February 26,1910, or for a sum equal to one-half the paid-up value of the policy at the date of the alleged conversion thereof, interest on the sum she was found to be entitled to, and statutory damages and attorney’s fees. In its answer plaintiff in error admitted that it made the loan to J. O'. Shook and changed the policy as charged; denied that it thereby was guilty of conversion; denied knowledge of the fact that the premiums on the policy were paid with community funds of the marriage, as alleged by Mrs. 'Shook; denied that she owned an interest in the policy, or that the court by the decree in the divorce suit had so determined ; and alleged that if she owned an interest in the policy, it did not exceed one-half of the value thereof, to wit, $1,072.20, at the date the divorce was granted, to wit, December 8, 1908. The trial court was of opinion that the effect of the judgment in the divorce suit was to determine that the policy was property belonging to the community estate, and therefore “was owned jointly” by J. O. Shook and Carrie B. Shook. As in his opinion this was decisive of the rights of the parties, he instructed the jury to find in defendant in error’s favor, “for one-half the accumulated value of said policy on February 26, 1910, to wit, $618.70, and for interest thereon at the rate of 6 per cent, from January 3, 1912, to this date, to wit, $125.15.” On a verdict returned as instructed, judgment was rendered in favor of defendant in error against plaintiff in error for the sum of $743.85.
    Locke & Locke, of Dallas, for plaintiff in error. Richard Mays, of Corsicana, for defendant in error.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above). In Cheeves v. Anders, 87 Tex. 287, 28 S.W. 274, 47 Am. St. Rep. 107, it was held to be—

“against the public policy of this state to allow any one who has no insurable interest to be the owner of a policy of insurance upon the life of a human being.”

In conformity to this principle it was held in Hatch v. Hatch, 35 Tex. Civ. App. 373, 80 S. W. 411, that:

“A wife’s interest in a policy on her husband’s life ceases upon obtaining a decree of divorce.”

These rulings mate it clear that Oarrie B. Shook, when she was divorced from J. O. Shook, ceased as the beneficiary named therein to have an interest in the policy in question here.

In Rowlett v. Mitchell, 52 Tex. Civ. App. 589, 114 S. W. 845, it was held that, in the absence, as was the case here, of fraud on the part of the husband, the wife cannot follow and recover community funds expended by him in premiums on an insurance policy on his life for the benefit of other persons. It is plain, therefore, that Carrie B. Shook was not entitled to recover of plaintiff in error because community funds were used by J. O. Shook before she was divorced from hita in paying premiums due on the policy.

As Carrie B. Shook, when she was divorced from J. 0. 'Shook, ceased to have an interest in the policy as the beneficiary named therein, and as she had no right to follow and recover community funds of the marriage used in paying premiums on the policy, it would seem to follow that the recovery had by her executor is wrong. He insists, however, that it was determined by the judgment in the divorce suit that the policy was community property, and that she owned an undivided one-half interest in it. The policy was not specifically mentioned in that judgment. Notwithstanding the holding approved by the Supreme Court in Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56 L. R. A. 585, that:

“A policy of 'insurance is not a piece of property ; it is the evidence of a contract, the contract being that a certain sum of money will be paid, upon the happening of a certain event, to a particular person named in the policy, or who may be the legal holder thereof”

—it might be conceded that the language in the judgment, adjudging that “all personal property, of whatsoever kind and character,” mentioned in the pleadings of the parties, belonged to the community estate between Carrie B. Shook and J. 0. Shook, included the policy in question, yet it would not follow that Carrie B. Shook, after she was divorced, owned an undivided one-half or any interest whatever .in the policy. Had the policy been taken into account by the commissioners appointed to make the partition between the parties, and it was not, and had the court by his judgment on the report of the commissioners undertaken to vest in Carrie B. Shook title to an interest in the policy, and he did not, she would have ceased to own such interest when, the decree, divorcing her from J. O. Shook, became effective. It would be as plainly violative of the public policy of the state to recognize a divorced wife who has ceased to have an insurable interest in her former husband’s life, as the owner of an interest in a policy on his life by force of a judgment, as it would be to recognize her ownership of such an interest by force of a transfer thereof to her ’from him. That she could not be the owner by a transfer was specifically determined in Hatch v. Hatch, cited above.

The judgment will be reversed, and judgment will be here rendered in favor of plaintiff in error.
      <§=^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    MALLOW v. RAYNES.
    (No. 1650.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 14, 1916.
    Rehearing Denied June 22, 1916.)
    1. Appeal and Error <&wkey;675 — Review — Statement op Facts and Evidence —Necessity.
    Error in overruling a plea of privilege by defendant to be sued in another county cannot be reviewed, in the absence of statement of facts containing the evidence adduced on the hearing of such plea.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2875; Dec. Dig. &wkey;>675.]
    2. Appeal and Error &wkey;>931(6) — Habmless Errob — Admission oe Evidence — Trial by Court.
    Where there is sufficient competent evidence to support the finding of the court, it will be presumed that inadmissible evidence received over objection was not considered in rendering judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3766; Dec. Dig. &wkey;931(6).]
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by J. L. Haynes against C. E. Mallow. Judgment for plaintiff, and defendant appeals'.
    Affirmed.
    W. A. ■& H. G. Evans, of Bonham, and Flip-pen, Gresham & Freeman, of Dallas, for appellant. Cunningham & McMahon, of Bonham, for appellee.
   HODGES, J.

The appellee instituted this suit in the justice court against the appellant to recover the sum of $150 for the breach of a contract. It was alleged that the appellant. contracted to deliver f. o. b. the cars at Bailey, Tex., two carloads of corn at 94 cents per bushel; that only one carload was shipped; that this was short in the quality for which the appellee paid. This appeal is from a judgment in favor of the appellee for §110.60.

Among other defenses the appellant filed a plea of privilege, claiming the right to be sued in the county of Dallas, the place of his residence. It appears from the record that the court heard this plea of privilege on the 14th day of October, 1915, and overruled it; that the case was passed for trial on its merits' till the 26th of October following. The statement of facts before us purports to be a record of the evidence that was introduced on the 26th day of October, when the case was tried. We are therefore without any record of any evidence which the court may have heard in support of the plea of privilege at the time it was passed upon. In the absence of a statement of facts showing the evidence introduced' at that time, we are unable to say that the court committed any error in his ruling on the plea of privilege.

The case was tried before the court without a jury. While some of the testimony objected to may have been inadmissible, there was sufficient evidence, outside of that objected to, to support the judgment of the court, and we therefore assume that the court considered the legal evidence only in rendering the judgment complained of.

The judgment of the county court is affirmed.

       cg^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. v. MOORE.
    (No. 1640.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 15, 1916.
    Rehearing Denied July 1, 1916.)
    1. Appeal and Eeeob i&wkey;931(6) — Scope — Pbesumptions.
    Where, without evidence erroneously admitted, the other evidence was sufficient to sustain the findings, it will be presumed that such findings were based on the competent and admissi-' ble evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3766; Dec. Dig. <§=^931(6).]
    2. Judgment <&wkey;253(l)— Pleading —Damages.
    Where plaintiff alleged damages by overflow due to railroad embankment in the sum of $150, judgment of $175 was excessive and will be reduced.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. &wkey;>253(l).]
    3. Costs &wkey;?238(2) — Appeal — Réeobmation oe Judgment.
    Where appellant, in his motion for new tidal, failed to point out the particular error for which the judgment was reduced on appeal, and such error was so patent that it would probably have been corrected if pointed out, he must pay costs on appeal.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. § 912; Dec. Dig. <&wkey;238(2).]
    Appeal from Delta County Court; J. N. Viles, Judge.
    Action by D. C. Moore against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed.
    James Patteson, of Cooper, and Terry, Ca-vin & Mills, of Galveston, for appellant.. Newman Phillips, of Cooper, for appellee.
   HODGES, J.

The appellee sued and recovered a judgment in the court below for damages to his land and crops growing thereon, resulting from overflows caused by the appellant’s roadbed. The proof shows that the appellee owned a tract of 30 acres situated in Delta county one mile east of Ben Franklin, lying on the south side of the appellant’s right of way, not far from where the appellant’s railroad crosses Sulphur creek. The appellee alleged and proved that a branch which runs north along the west side of his tract of land, prior to the construction of the appellant’s road, emptied itself at some point still further north of the appellant’s right of way; that when the appellant constructed its roadbed it built an embankment across this branch, without leaving, any outlet for the water to follow its natural course; that the water thus obstructed was caused to overflow, and produced the injuries complained of. The evidence shows that a channel on the south side of the appellant’s track, extending east toward Sulphur, was made by excavations in the building of the road; that this channel for several years carried off the surplus water, and no injury resulted to the appellee’s land till in 1913, after this channel had become filled by the accumulations extending over several years.

The case was tried before the court, who found, in addition to the facts above stated, that in 1913 and 1914 the appellee’s crops of cotton were damaged by the overflows from this branch, caused by the failure of the appellant to have an outlet for the water as required by law. He also found that in 1915 about ten acres of the land were damaged by the washing away of the soil. It is undisputed that no outlet was left for the escape of the water from this branch, and about the only question to be determined was the extent of the damages resulting from the failure to comply with the statutory requirement.

Objection was made to the admission of some testimony regarding the value of the land before and after the alleged injury. The objection was probably good as to some of this testimony, but there was other testimony upon that issue, legally admissible and sufficient to sustain the findings of the court. It will therefore be presumed that the court based his judgment upon that evidence.

The plaintiff below pleaded his damages by alleging separately the extent of the injuries sustained' in the different years of 1913, 1914, and 1915, and the value of the crops destroyed during each of the first two years. The value of the .crop destroyed in the year 1913 is placed at $150. The court found that the extent of the damages sustained by the appellee for the year 1913 amounted to $175, $25 in excess of that stated in the pleading, and rendered judgment accordingly. This is the only error we have discovered in this appeal. The judgment should be reduced so as to conform to the pleadings.

The appellant filed a motion for a new trial in the court below, but failed to specifically point out this particular error. It is true that in a general way that ruling of the court was involved in the motion, but the reference was couched in such general terms as would easily permit the court to overlook this particular- error. It is evident that it would have been corrected had attention been directly drawn to it. For that reason we shall require the appellant, notwithstanding the reformation of the judgment directed, to pay the costs of this appeal.

The judgment will be reformed and affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    WESTCHESTER FIRE INS. CO. v. McMINN.
    (No. 1656.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 15, 1916.)
    1. Insueance <&wkey;335(l) — Fire Insurance-Breach or Policy — Statute.
    The breach of a provision of a fire insurance policy, requiring the insured to take an annual inventory and to keep a complete record of his business, bars a recovery; the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a, providing that recovery shall not be defeated by breach of provisions which did not contribute to the loss or destruction of the insured property, not being applicable to breach of such provisions.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. &wkey;335(l).]
    2. Appeal and Error <&wkey;1040(6) — Review-Harmless Error.
    In an action on a fire insurance policy, an order sustaining a demurrer to the answer of insurance company, which in effect strikes out from the answer allegations of the insured’s breach of a provision of the policy, requiring an annual inventory and the keeping of a complete record of the business transacted, is prejudicial error where defendant’s defense of forfeiture was left without legal basis or pleading.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4093, 4097; Dec. Dig. <&wkey;> 1040(6); Pleading, Cent. Dig. § 284.]
    3. Insurance <&wkey;668(l) — Action — Cancellation op Fire Insurance Policy — Submission to Jury— Suppiciency op Evidence.
    Evidence held sufficient to require the submission to the jury of the issue whether there was a mutual cancellation of a fire insurance policy before the .fire.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1556; Dec. Dig. &wkey;3668(l).]
    4. Insurance <&wkey;226, 230 — Fire Insurance — Cancellation op Policy — Mutual Agreement — Payment op Unearned Premium.
    A policy of fire insurance may be canceled at any time before loss by agreement between the parties, independent of the terms of the policy; and in such case the immediate payment of the unearned premium may not be required in order to make valid the agreed cancellation.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 498, 499, 509-512; Dec. Dig. &wkey; 226, 230.]
    Error from District Court, Franklin County; H. F. O’Neal, Judge.
    Action by M. W. McMinn against the West-chester Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded for new trial.
    Thompson, Knight, Baker & Harris and George S. Wright, all of Dallas, for plaintiff in error. R. T. Wilkinson, of Mt. Vernon, for defendant in error.
   LEVY, J.

The action is by appellee against appellant upon three policies of fire insurance. A policy is for $3,000, dated December 2, 1914, covering a stock of general merchandise and store fixtures; a policy is for $500, dated January 4, 1915, covering dry goods; a policy is for $1,500, dated January 8, 1915, covering dry goods. The insured property was destroyed by fire on January 17, 1915. The court instructed the jury to return a verdict for the plaintiff in an amount not to exceed three-quarters of the cash value of the merchandise and fixtures.

The court sustained the plaintiff’s demurrer to the part of the défendant’s answer averring that the plaintiff had violated the provision of the policy requiring the taking of a complete itemized inventory once in each calendar year, the taking of same within 30 days from the date of the policy, and keeping a complete record of business transacted, and in reference to the iron safe clause. The court sustained the demurrer to the answer upon the ground that the alleged breach or violation of such provisions of the policy would not contribute to bring about the destruction of the insured property, and therefore would not, under Acts 1913, p. 194 (art. 4874a, Vernon’s Sayles’ Statutes), render the policy void or constitute a defense to the suit.

The appellant’s contention that there was error in striking out his answer in the respect mentioned should, we think, be sustained. The title of said act of 1913 expresses, it is thought, the same subject and purpose of legislation as is contained in the body of the act, and therefore the act may not reasonably be held invalid; and the act of 1913 intends and means, and should be so construed, it is believed, to have application to and cover only such provisions or stipulations of the policy or contract of insurance as bear upon or relate to an act which, if such act be not performed as stipulated, might increase or affect, either in a natural, actual, or probable way, the risk or hazard of fire. But, notwithstanding the stipulation or provision, set up in avoidance of the policy, relates to or affects the peril or risk of fire, its breach or violation would not, under this act of 1913, be material to the question of the cause of the loss or destruction, unless its breach “contributed to bring about the destruction of the property.” The evident aim of the law was to so far modify the rule respecting stipulations affecting hazard of fire as not to make a forfeiture of the policy depend, as before this statute, upon merely the question of compliance or noncompliance with the particular stipulation, but, instead, to make the effect of such breach or violation dependent on its materiality to the question of actually causing or contributing to bring about the destruction of the property. The purpose of the act could not properly be said, it is believed, to restrict or limit the right of contract respecting stipulations not bearing upon the peril or risk of fire itself. Thus the extent of the act in question is merely to place a limitation upon the legal effect of only certain stipulations respecting forfeitures of the contract of insurance, and does not cover or apply to stipulations that do not affect or bear upon the peril or risk of destruction by fire. The stipulations alleged to be violated in the defendant’s answer only tend to the better preservation, of evidence to show the amount of loss sustained in case of destruction or damage to the insured property by fire, and consequently would not, we think, come under the terms of or be covered by the act of 1913. A like construction of this act, which we concur in, has been given by Justice McMeans in the case of Insurance Co. v. Finegan, 183 S. W. 833.

As the effect of sustaining the demurrer was to strike out the part of the answer mentioned, ana to leave the appellant without legal basis or pleading for the defense of forfeiture, it may not be said that the ruling was harmless error. And looking to the whole record, we conclude that it may not properly be said that an issue of fact does not arise requiring reversal of the judgment to have tried in the trial court.

Appellant pleaded that there was a mutual cancellation, beforé the fire, of both the policies issued in January, and by special charge asked the submission of such issue to the jury. The refusal to submit the issue of cancellation is made the basis of an assignment of error. It is believed that there was an issue of fact as to whether or not the two policies issued in January were mutually canceled before the fire. It is not intended to comment upon or set out all the testimony. The witness Davidson testified that he, as local agent, received a telegram from the general agents of the company directing him to make cancellation at once of the two policies, and that he showed the telegram to appellee and advised him that the company desired immediate cancellation of the policies, and that appellee said, “All right,” and went to the back of the store and got the two policies and handed them to the witness! The local'agent then,'as he says, wrote on the policies, “Canceled January 12, 1915,” and also entered the cancellation on his policy register. The appellee, though, denies this testimony. ■ A policy of insurance may be canceled at any time before loss, by agreement between the parties, and there may be cancellation by consent of the parties, independent of the terms of the policy; and in such case an immediate payment of the unearned premium may not be required in order to make valid the agreed cancellation. As to whether there was an agreement here was a question of fact. Polemanakos v. Ins. Co., 160 S. W. 1134.

The judgment is reversed and the cause remanded for a new trial.
      <@=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MIDDLEBROOIC, J.

text:
    HORWITZ v. JEFFERSON COUNTY TRACTION CO.
    (No. 113.)

    (Court of Civil Appeals of Texas. Beaumont.
    April 10, 1916.
    Rehearing Denied July 3, 1916.)
    1. Carriers &wkey;s238 — Carriage or Passengers — Who are Passengers.
    Where plaintiff got on the steps of a moving street ear at a point where it never stopped and was knocked off by a post before the conductor could open the door to let him in, held that he was not a passenger.
    [Ed. Note. — For other • cases, see Carriers, Cent. Dig. § 913; Dec. Dig. &wkey;>238.]
    2. Negligence <&wkey;83 — Contributory Negligence — Last Clear Chance.
    Under the doctrine of discovered peril, plaintiff must show that he was in a perilous position, that defendant discovered it in time to avert the accident, and had no reason to believe that plaintiff could or would free himself from the impending injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. <&wkey;>83.]
    3. Carriers &wkey;>318(4) — Operation — Sufficiency of Evidence — Last Clear Chance.
    Evidence held insufficient to show that defendant street railway company discovered plaintiff’s dangerous position on the car steps in time to avert his being knocked off by a post.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1307, 1308; Dee. Dig. &wkey;318(4).]
    4. Evidence <&wkey;591 — Weight—Conclusiveness on Party Introducing it.
    Where plaintiff introduced the conductor’s report of the accident made to defendant street railway company, he was bound by such report.
    [Ed. Note. — F'or other cases, see Evidence, Cent. Dig. §§ 2440-2443; Dec. Dig. &wkey;591.]
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Action by W. M. Horwitz against the Jefferson County Traction Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. Hightower, Orgain & Butler, of Beaumont, for appellee.

      Application for writ of error pending in Supreme Court.

   MIDDLEBROOIC, J.

Appellant sued the appellee for damages for personal injuries, alleging negligence of the defendant as the proximate cause of his injury. Appellee is a corporation, and operates a line of electric railway between Beaumont and Port Arthur, and is a common carrier of passengers for hire. Defendant answered by general demurrer, general denial, and plea of contributory negligence on the part of plaintiff. There is no question hut that the appellant was seriously injured. He received his injury in Port Arthur May 3, 1914, when he attempted to get on the car coming from Port Arthur to Beaumont, about 11 o’clock a. m. The case was tried before a jury; but the trial court instructed a verdict peremptorily for the defendant. The case is before this court on two issues; i. e., discovered peril, and that defendant owed plaintiff that degree of care and protection incident to a passenger on its cars.

Pertinent to these issues, the facts, briefly stated, are substantially as follows: Appellant was a merchant at Port Arthur. His wife was in Beaumont at the time, and had written him to come to Beaumont for dinner that day. Appellant was attempting to comply with this request when he got on the steps of the car and held on by two handholds on the side of the ear, one on each side of the door. It was about 11 o’clock a. m., and this was the last car he could take from Port Arthur and reach Beaumont for the dinner hour. He did not have a ticket, but he had the money to pay his fare, and it was common for fares to be paid after boarding the car, appellant himself having so paid his fare many times. The cars run between these points on the hour, leaving Port Arthur and arriving at Beaumont one hour later, and vice versa. Appellant saw the car leaving Port Arthur for Beaumont, and intercepted it at a place where passengers were not taken on or discharged; but when about 35 or 40 feet distant from the car, in the street along which the car line is constructed, he gave the motorman a stop signal, and he thought the motorman caught his signal, and would stop the car, and he testified that the motorman did slow down. The motorman, however, did not get the signal, and knew nothing of appellant’s presence until after the accident. In the city of Port Arthur the streets are paved, and this line of railroad goes in upon one of its principal streets, and is double-tracked at the place the accident occurred, and iron posts supporting the electric wire are between the two tracks, and about 8 to 10 inches from the side of the cars on the left of the cars going and coming. Plaintiff attempted to board the ear on the left side, at a point on the railroad where passengers were not received, while the car was running about 10 miles per hour, according to his testimony, just after the car had entered that part of the city where the tracks are double. The car doors open and close upon the inside, and are even with the general outside contour of the car. The steps extend and are uncovered, so that one may catch the handholds and swing onto the car with the door closed. Plaintiff knew that the place he attempted to board the ear was not a place on the railroad where they regularly received and discharged passengers, and he knew, also, that the right-hand side of the car was the place on tie car to enter same. Plaintiff was a resident of Port Arthur at the time the electric railroad was built from Beaumont to Port Arthur. He was versant with the manner of its construction, and knew that the posts supporting the trolley wires were between the two tracks, but he did not know just how close these -posts were. to the side of the cars when they were passing the posts. As he was situated, his only chance, to board the car was on the left side. The motorman was on the front of the car, and the conductor was on the rear' of the car. When appellant caught on the steps of the rear end of the car on the left-hand side, he knocked on the glass door to attract the attention of the conductor, and asked him to let him in. He testified that the conductor looked him square in the face, and that their faces were only 8 or 10 inches apart. The conductor testified that he heard some one pounding on the door on the off side and turned and saw the appellant, and motioned to him to look out for the post, and before he could open the door they passed the post, and appellant was knocked off by coming in contact with the post.

Plaintiff introduced in evidence the written statement of the conductor to the company, ' which was made the day the accident occurred, which is as follows:

“Was on Motor Four, going north on Proctor street; car had • got about end of the double track; heard some one knock on door on off side of car; looked around; saw a man standing on the steps. I motioned to him to look out for the trolley wire pole. Before I could get my door open, passed the first post; knocked the man off the steps.”

The ear was equipped with a double system of air brakes, which were in good order. Emergency air-brake signal was given by the conductor after the plaintiff had been knocked from the steps, and emergency air brakes were applied by the motorman, and the car was stopped at a ■ distance of 50 to 60 feet. The car was about 52 feet long. The motorman testified that they were running about 10 or 12 miles per hour at the time of the accident, and that it required 50 to 60 feet to stop the car under emergency brakes, when running at this speed. Two or three witnesses testified that they thought the car could be stopped, when running at a speed of 10 or 12 miles per hour in a distance of 10 or 12 feet, but none of these witnesses had ever run such a car as this one; one of them had run a street car. They testified, also, that they had seen cars on this railroad stopped in 10 or 12 feet when running 10 or 12 miles p'er hour.

It is clear that if the plaintiff recovers, he must do so on one of two counts, or on both; i. e., that he was a passenger on the car, and therefore the company owed him that high degree of care it is due to exercise for a passenger, or that he was in a position oí peril known to tlie company’s operatives in time for them to have used the means at hand to prevent his injury without injury to the car and to the passengers on the car, and that, having such knowledge, the operatives had no reason to believe that he did not know his perilous position, and could not or would not free himself from same before the danger point was reached.

First. Was the plaintiff a passenger, as that term has been used and defined by the courts? He says himself that he was on the wrong side of the ear; that he was not on the side of the car at which passengers were received, and he knew this when he got on the car. We shall not be first to announce the doctrine, but it has become universally known that electrically propelled cars, while in the limits of a city, receive passengers only on the right-hand side in the direction in which they are traveling, so that it is a matter of time only until courts will take judicial knowledge that it would be negligence upon the part of a prospective passenger to attempt to board the car from the left-hand side, even on a single track, while in such city. One not acquainted with the custom might have cause to contend otherwise; but one in possession of the rule as promulgated by the company, and the custom, and who testified that he ¡¿new the left-hand side was not the side at which passengers were admitted, and regardless of this rule, and regardless of the fact that he was boarding the car at a place where the tracks were doubled, and in a city where he knew the rule had been established to board the car only from the right-hand side, to claim that he was a passenger on the car, under the facts of this1 case, is beyond our imagination. In this view we are not unmindful of the case of M., K. & T. v. Williams, 40 S. W. 352, cited by appellant, in which a prospective passenger had gotten upon the front end of the express car in his hurry to board the train, and the operatives turned a hot-water hose on him, and injured and made him leave the train. In that case, the intending passenger had already boarded the moving train, and was occupying a place of safety, and the operatives scalded him off the moving train and caused his injury. The law would not uphold such action, even if he had been an intentional trespasser, and attempting to steal the ride. This doctrine is announced by Justice Key in his opinion in that case, in these words:

“If Eaton Williams did not intend to pay his fare, he was a trespasser; and if the fireman, while using the hose, for the purpose for which it was put on the engine, negligently or willfully so used it as to throw the water on Eaton Williams, then, in our opinion, he was acting within the scope of his employment, and appellant would be liable.”

Upon the doctrine thus announced, it is clear that Justice Key intended to convey the idea that, Williams .having once secured a place of safety, and by the willful, overt act of defendant’s employés having been forced from that position, by the active negligence of defendant’s employés, the defendant was therefore liable for such injuries as were caused him by such acts of its operatives. As we understand Justice Key’s opinion, it does not deal with the proposition of one intending to become a passenger, not having secured a place of. safety,- but the potent thought of the opinion is that, the injured party having secured a place of safety, it was the duty of the railroad company to use ordinary care to prevent’his injury, and that active negligence on the part of defendant’s operatives was inexcusable, and therefore he was entitled to recover for the injuries caused by such active negligence. Under the facts of that ease and of the instant case, there is a very broad distinction. In the instant case, the proposed passenger had not secured a place of safety; no overt act of active negligence of the operatives of the car is shown, and from the statement of the conductor, on the contrary, the operatives were doing all in their power to take care of the individual, rather than, as was the fact in the Williams Case, to do the very thing that caused his injury. In the instant case, appellant had not reached a place of safety, nor had he secured a place where passengers were permitted to ride, all of which he knew. We hold, therefore, that appellant was not a passenger at the time he was injured, under the facts of this case, and, in our judgment, to hold otherwise would be to hold that such companies could not inaugurate rules for the safety of passengers boarding their cars, and, when inaugurated for such purpose, a prospective passenger, who knew of the beneficent regulations, could disregard them, and upon receiving injury incident to his own negligence and disregard of such regulations, recover damages against the company for his own, known negligence. In the above-quoted ease, Railway Co. v. Williams, passed upon by the Supreme Court, Justice Brown writing the opinion, in 91 Tex. 255, 42 S. W. 855, specifically decides that issue under the facts of this case, when he says:

“But in order to raise such an implied contract, the party desiring to be carried by the railroad company must take passage on that part of the train provided by it for carrying passengers” (citing Merrill v. Railway, 139 Mass. 238, 1 N. E. 548, 52 Am. Rep. 705; Hutch, on Carriers, 447, 448, § 554; Snyder v. Railway, 42 La. Ann. 302, 7 South. 582.)

In the same opinion, Justice Brown says further:

“Notwithstanding the [conductor] permits the payments of fares upon the train we think it a reasonable regulation for the company to make that it should establish places at which to receive its passengers and designate coaches for them to ride in. It is proper that the carrier should be notified of the presence of all persons claiming the protection of passengers; otherwise it will be unable to distinguish between such persons and those who might be trespassers where in portions of trains not' used for the carriage of passengers. By this rule the rights of a carrier and a passenger would be alike guarded, while, on the other hand, if the person seeking passage on the train were permitted to board any part of the train as expressed in their instruction the carrier would be placed under the highest obligation to one it did not know- it sustained the relationship of carrier to passenger.”

In the case of Dallas Rapid Transit Co. v. Payne, 98 Tex. 211, 82 S. W. 649, Justice Brown, writing the opinion, specifically decides, we think, that, under the facts of this case, one in the position that the plaintiff was in when he was injured was not a passenger upon the car.

Second. Can the appellant recover under the law of discovered peril?

To do so, he must show by a preponderance of the evidence: (1) That he was in a perilous position; (2) that the operatives had discovered his perilous position; (3) that the operatives had discovered it in time to have prevented the injury, with the means at hand, with safety to the passengers on the car, and the car as well; (4) the operatives, after discovering his peril, had no reason to believe that he could or wbuld free himself from the impending injury.

There is no question but that the plaintiff was in a perilous position, nor is there any question that the perilous position of the plaintiff was discovered by the conductor before the injury occurred. The conductor’s statement so showed. So, the plaintiff meets the first and second requisites. But, under the facts of this case, can it he said that his perilous position was discovered by the conductor in time to prevent his injury, and did the conductor, after he discovered his perilous position, have reason to believe that he would not free himself from his perilous position before the point of injury or danger was reached?

As to the third proposition, we think the facts of the case unmistakably show that the conductor did not discover his perilous position in time to avoid the injury of appellant, in accordance with the testimony introduced by the plaintiff himself. It is likely that no truer statement of the conditions under which the plaintiff was injured could be presented than that introduced by the plaintiff in the form of the conductor’s report of the accident on the day it occurred, and in that report he stated that he could not open the door in time to prevent the injury.

As to the further element of discovered peril, as stated above, can it be said that the conductor had no reason to believe that the plaintiff would free himself from the impending danger? Plaintiff had gotten on the moving ear. He says in his own testimony that it was moving about 10 miles per hour when he boarded it. The testimony shows that it was moving abput this speed when the injury occurred, and when the ear was stopped, after the injury. Certainly, if the appellant could-get on the moving train when it was moving at a speed of about 10 miles an hour, he could have stepped off of it -When it was moving approximately át the same speed, and it occurs to us that the conductor, even though he had made no effort to open the door, when he motioned to the appellant to look out for the trolley wire post, would be warranted in presuming that the appellant would step off of the moving car, and thereby free himself from the impending danger. The report of the conductor, copied herein, which was introduced by the plaintiff, emphatically disputes that his position was discovered by the defendant in time to have prevented the injury; and, not taking into account the other evidence tending to support this! statement by the conductor, which was made to the company, the same day the injury occurred, we think the plaintiff is bound by the evidence he introduced, and, such being the case, there is but one conclusion deducible from the evidence, and that is that plaintiff’s perilous position was not discovered by the defendant’s operatives in time to have prevented his injury, even without consideration of the safety of those on the car, and the ear. The instant case is unlike the case of Railway Co. v. Brock, 35 Tex. Civ. App. 155, 80 S. W. 424. In that case the engineer testified that he did not see Brock on the bridge until he was in about 100 feet of him. The Supreme Court says:

“There is no direct evidence contradicting the engineer upon this subject, but there are some facts and circumstances which have a tendency to show that he did see Brock in time to have stopped his train.”

In the instant case, there is no question raised whatever as to the time appellant got upon the steps of the car and assumed the perilous position and the-time of his discovery by the conductor. Appellant says that he got upon the steps and began pounding upon the door, and attracted the attention of the conductor, ánd that the conductor’s face was within 6- or 8 inches of his face. The conductor says that he heard some one pounding upon the door on the off side of the car, and turned and saw a man standing there, and immediately motioned to him to look out for the trolley wire post, and attempted to open the door and let him in, but before he could do so, they reached the trolley post, and appellant was knocked from the car; and appellant introduced this very testimony in evidence himself, and, under the authorities, we think he is bound by such testimony. Texas & Pacific Ry. Co. v. Gay, 88 Tex. 114, 30 S. W. 544, and authorities therein cited. Our Supreme Court, in Ft. Worth & Denver City Ry. Co. v. Shetter, 94 Tex. 199, 59 S. W. 533, H. & T. C. Ry. Co. v. O’Donnell, 99 Tex. 637, 92 S. W. 409, and S. A. & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S. W. 103, and San Antonio Trac. Co. v. Kelleher, 48 Tex. Civ. App. 421, 107 S. W. 64, except the last mentioned, which is an appellate court decision, has tersely stated the rule of recovery upon discovered peril, and, we thihk, unmistakably, against appellant’s contention in this case. Eor other authorities pertinent to the issues of this case, see Railway Co. v. Finn, 107 S. W. 100; Railway Co. v. Jones, 103 Tex. 187, 125 S. W. 309; Mo. Pac. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 324.

Under the pleadings and facts of this case, we do not believe that a judgment against the defendant could have been permitted to stand by a trial court; in short, it occurs to us that it is a case in which the plaintiff’s own ruthless actions were the sole cause of his injuries, and that, after discovery of his peril by the operatives of the car, they were wholly unable to prevent his injuries, and therefore the defendant is not liable, and the trial court did not err in instructing a verdict for the appellee.

The judgment of the trial court is therefore affirmed.
      (g=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BERRY v. GODWIN et al.
    (No. 1599.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 1, 1916.
    Rehearing Denied June 29, 1916.)
    1. Wxtkesses <&wkey;48(4) — Competency — Conviction of Murder.
    One who has been convicted of murder . is incompetent as a witness, although he is plaintiff in an action of trespass to try title to land which ha claims as a homestead.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 114; Dec. Dig. <g¿348(4).'J
    2. Depositions <&wkey;91 — Competency oe Deponent at Time oe Trial.
    The deposition of a witness whose conviction for murder was suspended by appeal at the time of the taking of the deposition becomes incompetent for use at a trial after such conviction has been affirmed. ■
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 261-265; Dec. Dig. &wkey;91J
    3. Homestead &wkey;>173 — Abandonment—Election by Bringing Partition.
    Suit to partition homestead by a widower was such an election no longer' to use or occupy it as homestead that he could not, by amendment of his petition changing the suit to one of trespass to try title, resume, as against answering defendants, the. right he had abandoned.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 340; Dec. Dig. ¿=173.]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Action by Thomas Berry against Kirby Godwin and others. From a judgment for defendants, plaintiff appeals.
    Reformed and affirmed.
    As commenced by appellant his suit was against appellees Perry Dethridge and Bertha Godwin (her husband, appellee Kirby Godwin, being joined pro- forma), to partition a tract of land containing, it was alleged, 213 acres, in Henderson county. In his original petition, filed August 16, 1913, appellant alleged that Perry Dethridge owned an undivided interest of about 20 acres, and that he (appellant) owned the remainder of the tract. By an amended petition filed September 30, 1913, appellant changed his suit from one for a partition to the statutory one of trespass to try title, and sought a recovery of the title and possession of the entire tract. In this petition he set up title in. himself by virtue of the statute of limitations of three, five, and ten years. Appellees answered by: (1) A plea of not guilty; (2) a general denial; (3) a plea setting up the statute of limitations of four years as a bar to the suit, on the theory that it was, in effect, to cancel a deed made by appellant October 1, 1884, whereby he conveyed the land to his deceased wife, Thursday Berry; (4) a plea that Bertha Godwin, as a granddaughter and heir of Thursday Berry, owned an undivided interest of 0/24, that Perry Dethridge, as the surviving husband of Johnnie Berry, a daughter of said Thursday Berry, owned an undivided interest of 4/24, and that appellant owned an undivided interest of in the land; and- (5) a prayer that the land be partitioned among them. In a supplemental petition appellant alleged that he was the head of a family that the'land was his homestead, and therefore that it was not subject to partition as prayed for by ap-pellees, even if it should appear that they owned an interest therein as claimed by them.
    At the trial it was agreed that appellant on October 1, 1884, owned the land in controversy as a part of his separate estate. From testimony admitted it' appeared that on that day he made a deed which by its terms conveyed to his wife, Thursday Berry, “200 acres off the north end” of the tract of land upon which he then resided, being the land in controversy, in consideration of $500 paid to him by her “out of her separate estate.” October 22, 18S5, appellant acknowledged the execution of this deed before the county judge of Kaufman county. October 29, 1885, the deed was duly recorded in Hendersou county. The land was the homestead of appellant and his wife, Thursday, at the time she died, in 1888. She left three children surviving her, to wit: Allen, a boy, and Pearl and Johnnie, girls. Allen married, and he and his wife died, leaving appellee Bertha Godwin, their only child, surviving them. Johnnie married appellee Dethridge. She died, and left no child surviving her. June 13, 1913, Pearl conveyed her interest in the land to appellant. From the date of the death of his wife, Thursday, until the time this suit was instituted appellant continued to reside upon and use the land as his home', except that on two occasions he left it and resided elsewhere for short periods of time. He married again within about a year after the death of his wife, Thursday. By his second wife, who died before the commencement of the suit, he had three children, all of whom were alive, and-each of whom at the time of the trial was less than 21 years of age, and two of whom at that time resided upon the land in controversy. In March, 1913, appellant was convicted of murder and sentenced to a term in the penitentiary. The judgment convicting him, on an appeal therefrom prosecuted by him, was affirmed by the Court of Criminal Appeals October 22, 1913.
    The jury having, in compliance with a peremptory instruction to them to do so, found that appellant owned an undivided interest of ri/g^, appellee Bertha Godwin, an undivided interest of V24, and appellee Perry Dethridge, an undivided interest of V24, the court rendered judgment accordingly, and appointed commissioners to partition the land.
    Miller & Miller, of Athens, and R. S. Ne-blett and Ormond Simkins, both of Corsica-na, for appellant. W. R. Bishop and J. J. Paulk, both of Athens, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The cause was tried in February, 1915, long after the judgment convicting appellant of the crime of murder had been affirmed by the Court of Criminal Appeals, and while he was confined in the penitentiary in accordance-to the sentence imposed upon him. The action of the court in sustaining the motion of appellees to suppress the deposition of appellant as a witness, taken October 15, 1913, on that ground, is assigned as error. The contention made in support of the assignment is that appellant was a competent witness at the time Ms deposition was taken, notwithstanding he had been convicted and sentenced to a term in the penitentiary, because the judgment and sentence against him were suspended by an appeal he had prosecuted which was then undetermined. The assignment must be overruled. The common-law rule which renders a person who has been convicted of such a crime incompetent as a witness is in force in this state. Webster v. Mann, 56 Tex. 119, 42 Am. Rep. 688; Tillman v. Fletcher, 78 Tex. 673, 15 S. W. 161; Rogers v. Tompkins, 87 S. W. 379. In the case last cited the court quotes approvingly from 13 Oyc. 994, as follows:

“As a general rule, the status of the witness at the time of the trial governs the question of his competency, for, in contemplation of law, the deposition itself is the witness, and the witness is presumed to testify when the deposition is used.”

In the case first cited the court said:

“The judgment of conviction is hut the evidence of the moral depravity which creates the disqualification; and the reason for the exclusion of the testimony of a party while under indictment upon which a conviction is subsequently had is just as strong as through his testimony was. given after conviction. The facts and law existing at the time of the trial, and not at the time of the taking of a deposition, must be looked to ordinarily to determine its competency”

It appeared from the testimony that the land in controversy was appellant’s homestead at the time he commenced his suit to partition it. It is contended that the court, therefore, erred when he awarded a partition thereof at the instance of appellees. The contention would be sustained but for the fact that it is thought the effect of appellant’s suit to partition the land operated as an election by him to no longer use or occupy it as a homestead. In Moore v. Moore, 89 Tex. 29, 33 S. W. 217, which was a suit by the surviving second wife for a partition between herself and the heirs of the first wife of the decedent, the Supreme Court, after declaring that the second wife was entitled under the Constitution (article 16, § 52) “to retain possession of the homestead during her life, if she chose to use or occupy it as such,” said:

“But she had the right to abandon the use of it as a homestead, when it would become subject to partition as other property When she filed this suit and asked the court to partition the estate, including the property claimed as a homestead afterwards, it was a waiver of her right to use and occupy it as a homestead.”

If the commencement by appellant of the suit to partition the land was in effect an election by him to no longer use or occupy it as a homestead, it is not believed he could thereafterwards, by an amendment of his petition changing the suit to one of trespass to try title, resume as against appellees, who had answered the suit, the right he had abandoned.

The complaints made by appellant, based on the action of the court in refusing on his motion to dismiss the suit, and refusing to submit to the jury an issue as to whether he had reacquired title to the land by force of statute of limitations after he conveyed it to his wife, Thursday, are believed to be without merit when considered with reference to the record.

The conveyance to appellant’s wife, Thursday, was of “200 acres off of the north end of the tract.” Appellant’s suit was for the entire tract, alleged to contain 213 acres. The decree of the court directed a partition of the 213 acres. As the entire tract before the conveyance by appellant to his wife, Thursday, was a part of his separate estate, no reason is apparent why he was denied a recovery of the part of the tract not conveyed by his deed to his said wife. Therefore the judgment will be so reformed as to adjudge a recovery by him of that part, and a partition between him and appellees of the 200 acres off the north end of the tract only; and, as so reformed, it.will be affirmed, and the cause will be remanded, so that the 200 acres may be partitioned as directed in the judgment.
      <&wkey;>Ior other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes