author: ’ FLY, C. J.

text:
    TRINITY METHODIST EPISCOPAL CHURCH v. CITY OF SAN ANTONIO.
    (No. 5973.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 13, 1918.
    Rehearing Denied March 13, 1918.)
    1. Taxation &wkey;>204(2), 251 — Exemptions — Statutes — Construction.
    In considering exemptions from taxation, the law must be strictly construed, and .the burden is on one claiming exemptions to bring himself clearly within the statute or Constitution.
    2. Taxation <5&wkey;244 — Exemptions—“Actual Plages op Religious Woeship” — “Institutions oe Pueelt Public Charities.”
    A parsonage or rectory, used as a residence for the minister, is not exempt from taxation under Const, art. 8, § 2, or Rev. St. 1911, art. 7507, §§ 1, 6, exempting “actual places of religious worship” and “institutions of purely public charities."'
    [Ed. Note. — -For other definitions, see Words and Phrases, Eirst Series, Actual Place of Religious Worship ; First and Second Series, Purely Public Charity.]
    3. Taxation &wkey;>195 — Exemptions.
    Const, art. 8, § 2, in exempting merely places of religious worship and institutions of purely public charities, must not be construed so as to exclude necessary grounds for entry into the buildings, and Rev. St. 1911, art. 7507, §§• 1, 6, is not unconstitutional in providing that necessary grounds be exempt.
    4. Taxation- <&wkey;244 — “Actual Places oe Religious Worship” — “Institutions oe Purely Public Charities.”
    There is a clear and logical difference between a place of worship and an institution of public charity, and that one is used for the other does not change its character, under Const, art. 8, § 2, and Rev. St. 1911, art. 7507, §§ 1, 6, relating to taxation.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by the City of San Antonio against the Trinity Methodist Episcopal Church to recover taxes and foreclose a lien. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    C. A. Keller, of San Antonio, for appel-. lant. R. J. McMillan and R. G. Harris, both of San Antonio, for appellee.
   ’ FLY, C. J.

This is a suit instituted by ap-pellee to recover taxes and foreclose a lien on certain property in the city of San Antonio, owned by appellant, being the west half of lot No. 7 in new city block 418, at the southeast corner of Pecan street and an alley, being known as the Trinity Methodist Episcopal Church parsonage property. Appellant claimed exemption from taxation under the Constitution and laws of Texas. The trial court rendered judgment in favor of appellee for the amount of the taxes, amounting to $359.52, and foreclosed the lien on the property.

There is no statement of facts, and the findings of fact of the trial judge are adopted as the conclusions of fact of this court.

There was no question as to the taxes being legal and just, unless the property on which they were assessed was exempt from taxation under the provisions of article 8, § 2, of the Constitution, and article 7507, §§ 1 and 6, Revised Statutes of Texas.

Article 8 of the Constitution, section 2, cited, is permissive, giving authority to the Legislature to exempt certain property, naming it, from taxation among the list being “actual places of religious worship * * * •and institutions of purely public charities.” The Legislature, in pursuance of the constitutional permission, passed article 7507, which seeks, among other property, to exempt from taxation:

“Public schoolhouses and houses used exclusively for public worship, the books and furniture therein and the grounds attached to such buildings necessl&ry for the piropier occupancy, use and enjoyment of the same, and not leased or otherwise used with a view to profit,” and “all buildings belonging to institutions of purely public charity, together with the lands belonging to and occupied by such institutions not leased or otherwise used with a view to profits, unless such rents and profits and all moneys and credits are appropriated by such institutions solely to sustain such institutions and for the benefit of the sick and disabled members and their families and the burial of the same, or for the maintenance of persons when unable to provide for themselves, whether such persons are members of such institutions or not.”

The Constitution provides that all “taxation shall be equal and uniform,” and that “all property in this state, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.” Const, art. 8, § 1. To this provision general exceptions are made, under which the Legislature may exempt certain, property specifically described. Section 2. In considering exemptions it is the rule that the law must be strictly construed and not enlarged, hut confined to the very terms of the provision as to the exemption. Oooley, Taxation, p. 357. Following this rule the burden devolves upon any one seeking an exemption to bring himself clearly within the terms of the statute or constitutional provision, and, further, should any reasonable doubt as to the property being exempt arise, the doubt must be resolved in favor of the government levying the tax. Morris v. Masons, 68 Tex. 698, 5 S. W. 519.

The facts in this case show that the property in question was a parsonage, set apart by the authority of the church, and used as a living place or residence for each minister of the church that might be assigned to serve the church;' that it was on the west half of the lot adjoining the church lot. The use of the parsonage by the minister in charge formed a part of his salary or support, and the children of the Sunday school used the water and toilet in the parsonage when Sunday school was held, but it was never leased or used except as a residence for the pastor. The evidence totally fails to show that the parsonage was used exclusively for “public worship” or “purely public charity.”

Not only has appellant failed to bring its parsonage within the terms of the Constitution, but also within the broad terms of the statute. We think it is clear that the Legislature did not have in view the exemption of a parsonage built on a lot contiguous to a church lot any more than one built on a different block or miles away, and do not think the provisions of the statute as to the exemption of churches from taxation, when properly construed, conflict with the constitutional provision on. the subject. The Constitution undoubtedly intended in granting permission to the Legislature, to exempt houses used exclusively for religious worship from taxation, to grant permission to exempt the land on which the house is built and other ground on which to enter and leave the. church and ground immediately surrounding the house which would be “grounds attached to such buildings necessary for the proper occupancy, use and enjoyment of the same.” What would be necessary grounds would be a question of fact, but this would not render the statute unconstitutional. The Constitution will not be so construed as to defeat its own purposes, which would be the case if only the ground actually covered by the house used for religious worship was exempt. The construction must be reasonable and not such as to defeat the very end desired.

It is so manifestly without any ground to sustain it that we need not give any extended consideration to the proposition that a parsonage furnished for the exclusive use of the pastor of a church is a building belonging to an institution of “purely public charity.” The Constitution and statute make a clear and logical' distinction between a “house used exclusively for public worship” and a building “belonging to institutions of purely public charity,” and because acts of charity might emanate from the one' or public worship be held in the other would not change their character. The building to be exempt must be used or owned for one or the other purpose, but the parsonage in this instance was not used for either.

It is well settled by excellent authority that the exemption of church property does not include a rectory .or parsonage. St. Mark’s Church v. Brunswick, 78 Ga. 541, 3 S. E. 561; State v. Board of Assessors, 52 La. Ann. 223, 26 South. 872; Third Cong. Soc. v. Springfield, 147 Mass. 396, 18 N. E. 68; Hennepin County v. Grace, 27 Minn. 503, 8 N. W. 761; Presbyterian Church v. New Orleans, 30 La. Ann. 259, 31 Am. Rep. 224; People v. First Cong. Church, 232 Ill. 158, 83 N. E. 536; Broadway Church v. Comm., 112 Ky. 448, 66 S. W. 32. In the last case cited it is said:

“Parsonages are not exempt, although erected on a portion of the church lot which would otherwise be exempt, and occupied by the minister free of rent, if the language of the exemption only includes places actually used for religious worship, with .the grounds attached thereto, and appurtenant to the house of wor-, ship. ⅞: * ⅞ The authorities on this point ‘ seem to be unanimous.”

This was held under a constitutional provision much broader than that used in the Constitution of Texas, for the Kentucky law exempts not only “places used for religious worship,” but also “the grounds attached thereto and used and appurtenant to the house of worship, not exceeding one-half acre in cities or towns and not exceeding two acres in the country.”

The language of. the Constitution must fix the exemptions, no matter- what the language of the statute may be, and under section 2 of article 8 of the Constitution appellant has not shown itself entitled to exemption for its parsonage as being an “actual place of religious worship” or an “institution of purely public charity.” The evidence failed to show that the parsonage was used for a place of religious worship, but as a home for the pastor. It may be that it was a necessary appurtenance to the church, but the Constitution does not exempt anything attached or appurtenant to a church on the ground of necessity. Permitting the preacher to use the building may have been very charitable, though it appears that the use of the house paid a part of the salary earned by or promised to him, and certainly it was not in the interest of the public that he should reside in the parsonage. . .

In order to obtain the exemption as an “institution of purely public charity,” appellant was compelled to show that the church was such, institution, and also, that the parsonage was used exclusively for “purely public charity.” Morris v. Masons, 68 Tex. 702, 5 S. W. 519. No matter what the church may have been in the way of a charitable institution, the parsonage was not used for public charitable purposes. Orphan School v. Louisville, 100 Ky. 470, 36 S. W. 921, 40 L. R. A. 123.

The case of State v. Methodist Church, 163 S. W. 628, does not sustain the contention of appellant in this case. In the cited case it was admitted by the state that the three iots claimed to be exempt were used as an actual place of religious worship and the court said:

“If the state ever had any case, we think it was swept away and destroyed when it admitted that the property in question forms a part of the property of the church, used as an actual place of religious worship, * * ⅜ and that the church which owned the property is a religious organization and an institution of purely public charity, and the property had never been leased or otherwise used with a view to profit.”

The admissions of the state doubtless deterred the court from fully considering the Constitution on the subject, for the court stated that the state had not contended that the statute was unconstitutional. No authority but article 7507 is cited by the court. The court evidently thought there was no necessity for investigation when the state had admitted all the church had to prove.

The Missouri case of Bishops v. Hudson, 91 Bio. 671, 4 S. W. 435, shows an utter lack of proper consideration of the question before the court, and should not be followed, especially as it is in the very teeth of the decisions of almost every other court in the Union that has considered the question.

In the well-considered case of People v. Feitner, 168 N. Y. 494, 61 N. E. 762, the Court of Appeals of New York held:

“The rectory is a separate building located on the northeast corner of the church. The building consists of a reception room, library room, study, dining room, * ⅜ ⅜ and sleeping rooms. It is occupied by. the rector, his family, and servants. It is contended on behalf of the respondent that the work carried on by the church is such as to require the constant attendance, both night and day, of the rector or his assistants, and that the rector having the general supervision of the entire work, his presence is necessary so that whatever calls may be made either upon himself, the assistants, or sisters, he can, if necessary, be reached for advice and consultation. * * * We do not, however, favor this view.”

Also, in the case of Ramsey Co. v. Church of the Good Shepherd, 45 Minn. 229, 47 N. W. 783, 11 L. R. A. 175, it was held that a rectory or parsonage belonging to a church society, its primary use being for the secular purpose of a residence for the priest or minister, is not exempt, although some part of it is also used for religious purposes.

In the case of First Cong. Church v. Board of Review, 254 Ill. 220, 98 N. E. 275, annotated in 39 L. R. A. (N. S.) 437, the question herein involved is thoroughly discussed, and it was held that an exemption from taxation of property used exclusively for religious work does not include a parsonage used as a residence for the pastor of a church and his family, and such religious work as naturally would center about the pastor’s residence. Numerous cases are cited in the opinion, and many others are found in the footnotes in the L. R. A., which fully sustain the opinion.

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


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    CAMP et al. v. GOURLEY et al.
    (No. 801.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 14, 1918.
    On Rehearing, March 7, 1918.)
    1. Exceptions, Bill of «&wkey;43(l) — Time to File.
    Bills of exception filed after the expiration of the time granted by the court in the order extending the time to file are not entitled to consideration.
    2. Venue <&wkey;75 — Chan&e oe Venue-Dismissal as to one Pasty.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. .1832, providing that if a plea of privilege is sustained the action shall not be dismissed, but the court shall transfer it to the proper court having jurisdiction, and article 1833, providing that when the plea of privilege is sustained the court shall order the venue to be changed to the court having jurisdiction of the parties, where a suit for rescission of a contract was brought against several parties, and the plea of privilege interposed by one of them was sustained, it was error to dismiss as to one of the parties upon the merits, but the entire case as to all parties should have been transferred to the county wherein that defendant resided who successfully made plea of privilege.
    3. Coubts <&wkey;91(l) — Decisions oe Supreme Court.
    The Court of Civil Appeals is bound to follow the latest ruling of the Supreme Court upon the same proposition.
    Error from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by H. D. Camp and another against D. W. Gourley and others. To review a judgment on the merits in favor of Gourley against plaintiffs, plaintiffs bring error.
    Reversed and rendered.
    E. J. McQuillan and Ware & Norcop, all of El Paso, for plaintiffs in error. J. C. Brooke, Nichols & Robinson, and Lea, Mc-Grady & Thomason, all of El Paso, for defendants in error.
   HIGGINS, J.

D. W. Gourley was the owner of a herd of dairy cows in the city of El Paso which he sold to H. D. Camp and J. S. McDaniels, plaintiffs in error. In part payment therefor, Camp and McDaniels executed 'and delivered to Gourley a promissory note in the sum of $5,000. This note was indorsed and delivered by Gourley to Jackson & Harmon and by the latter to the First National Bank of Alpine. This suit was brought by Camp and McDaniels for a rescission of the contract of sale and to cancel the note sued upon, also to recover damages against ■Gourley and Jackson and Hannon, alleged to have been sustained by Camp and McDaniels because the cows were alleged to be infected with tuberculosis at the time of the sale. It was alleged that in making the sale Gourley ■acted for himself and as agent of Jackson & Harmon, and that he made false representations concerning the health of the cattle. It was alleged further that the bank was not the holder of the note in due course of trade .and in good faith, but acquired the same with notice of the fraud practiced upon Camp and McDaniels. The bank filed a disclaimer •of any interest in the note, setting up that the note had been taken up by Jackson & Harmon and retransferred to them. Jackson •& Harmon filed a plea of privilege, setting up their right to be sued in Brewster county, where they resided. Gourley filed a denial •of the allegations of the petition and a cross-action for the sum of $135, alleged to be a balance due upon the purchase price over and above the note in controversy.

The case was submitted to a. jury upon ■special issues and upon the answers returned, the plea of privilege of Jackson & Harmon was sustained, and the suit as to them transferred to Brewster county. Judgment upon the merits was rendered in favor of Gourley •against Camp and McDaniels, who sue out this writ of error.

Assignments 1 to 10, both inclusive, ■are predicated upon bills of exception filed after the time had expired granted by the court in the order extending the time within which to file same. These bills of exception are therefore not entitled to consideration. Byrne v. Texas, etc., 198 S. W. 600; Canal Co. v. Quinn, 160 S. W. 151; Criswell v. Robbins, 152 S. W. 210; Loeb v. Railway Co., 186 S. W. 378.

There is no complaint made of the judgment sustaining the plea of privilege of Jackson & Harmon and transferring to Brewster county the venue of the suit as between Camp and McDaniels, on the one part, and Jackson & Harmon, on the other part, but it is asserted that the sustaining of this plea necessarily transferred to Brewster county the plaintiff’s cause of action against Gour-ley, and that it was error to render judgment in favor of Gourley upon the merits. This assignment is well taken. Article 1832 provides that, if a plea of privilege is sustained, the cause of action shall not be dismissed, but the court shall transfer the same to the court having jurisdiction of the person of the defendant therein, and article 1833 provides that, whenever a plea of privilege to the venue to be sued in some other county than the county in which the suit is pending shall be sustained, the court shall order the venue to be changed to the proper court of the county having jurisdiction" of the parties to the cause. The district court of Brewster county has jurisdiction over the subject-matter, and, by virtue of the residence there of Jackson & Harmon, it has jurisdiction over the person of all of the defendants. Under the plain language of this statute, it therefore became necessary for the court to change the venue of the entire case as to all parties to that county when Jackson & Harmon’s plea of privilege was found to be well taken. Hickman v. Swain, 106 Tex. 431, 167 S. W. 209; Ragland' v. Insurance Co., 157 S. W. 1187; Luter v. Ihnken, 143 S. W. 675.

The cases cited by defendants in error in support of the judgment and action of the court in proceeding to final judgment as between plaintiffs and Gourley are distinguishable. In those cases there was either a misjoinder of separate and distinct causes of action or else a failure to state a cause of action against the defendants who asserted the plea of privilege. Here the cause of action to cancel the note is inseparable and indivisible, and the claim for damages asserted against Gourley, Jackson & Harmon shows a joint as well as a several liability. But if the cases were not distinguishable, we would nevertheless be bound to follow the late ruling of the Supreme Court in Hickman v. Swain, supra, which is decisive of the question. Railway Co. v. Moore, 103 Tex. 349, 127 S. W. 797, does not seem to be in point.

The disposition made of this assignment renders it unnecessary to pass upon other features of the judgment of which complaint is made. The judgment of the court below is reversed and judgment is here rendered sustaining the plea of privilege of the defendants Jackson & Harmon to be sued in Brewster county, and it is ordered that the venue of this suit as to all parties, subject-matter, and causes of action be and the same is hereby changed to the district court of Brewster county, Tex., and the clerk of the lower court is directed to make up a transcript and transmit the same with the original papers in the cause to the clerk of the district court of Brewster county, as provided by article 1833, R. S.

Reversed and rendered.

On Rehearing.

Upon the verdict of the jury it appears that Jackson & Harmon were improperly sued in El Paso county. It is therefore ordered that they recover their costs upon this appeal and their costs incurred in the lower court by reason of being improperly sued in El Paso county. All of such costs are taxed against the plaintiffs in error. The same order is made respecting the First National Bank of Alpine. Article 1832, R. S.

WALTHALL, J., did not sit, being absent on committee of judges assisting the Supreme Court.
      (ScsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    TEXAS CITY TERMINAL CO. v. McGEE.
    (No. 7462.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1918.)
    1. Railroads @=>411(15) — Injuries to Animals Running at Large — Liability.
    Where plaintiff’s horse was running at large within the corporate limits of a town, as fixed by the county surveyor, contrary to the ordinance of such town, defendant, not being required to fence within corporate limits, would not be liable, unless the horse was killed because of the negligence of its servants operating the motorcar.
    2. Trial @=>251(3) — Misleading Instructions.
    In suit against defendant to recover for a horse killed by its motorcar within city limits, an instruction submitting question whether city was incorporated as required by law, an issue not raised, was misleading.
    3. Appeal and Error @=>1066 — Submitting Issue Not in Controversy — Harmless Error.
    In suit against defendant to recover for a horse killed by its motorcar within city limits, submitting question whether city was incorporated as required by law, an issue not raised, cannot be held harmless, where it cannot be said that it did not improperly influence jury and •produce an erroneous result.
    Error from Galveston County Court; George E. Mann, Judge.
    Suit by J. T. McGee against the Texas City Terminal Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    \V. T. Armstrong and Eugene A. Wilson, both of Galveston, for plaintiff in error. Beason & McCarver, of Texas City, and W. N. Campbell, of Galveston, for defendant in error.
   PLEASANTS, C. J.

This suit was brought by J. T. McGee against the Texas City Terminal Company to recover the sum of $125, the alleged value of a horse owned by plaintiff and which was killed by a motorcar operated by the defendant company. In answer to plaintiff’s suit, defendant, in addition to a general denial, pleaded:

“That if the animal was struck and killed, it was running at large in the city limits of Texas City at the time, and being unlawfully permitted to so run at large by the owner thereof, in violation of the ordinances of the city of Texas City duly enacted by that body and in force at that time. Wherefore the defendant says that the owner of the said animal was guilty of contributory negligence in permitting the animal to roam at large at the time and place where it was struck. Further answering, the defendant alleges that, if the animal that was struck and killed belonged to the plaintiff in this case, it was struck and killed at a place where the defendant, the Texas City Terminal Company, is not permitted and is not required V>y law to fence its track.”

Defendant in error, J. T. McGee, replied as follows:

“As an answer to the defendant’s answer to our case, or as a counter reply to it, we deny each and every of the allegations contained in this, and say that the place where the horse was killed was not within the city limits of Texas City, in the corporate city limits of Texas City, and that it was not at a place where the railroad company is not required to fence its property, but at a place where the railroad is permitted to fence its property, and not within the switch limits of the Texas City Terminal Company, as pleaded by defendant.”

Upon a trial in the justice court judgment was rendered in favor of plaintiff for $100. On appeal and trial de novo in the county court, the plaintiff obtained a judgment for $125.

The evidence shows that plaintiff’s horse was struck and killed by a motorcar operated by the defendant company over its railway lines in the town of Texas City. The animal came on the track a short distance in front of the car, which was coming into the town. The point on defendant’s track at which the accident occurred was within the corporate limits of the town of Texas City as fixed by the county surveyor of Galveston county, who testified that the survey fixing the original boundaries for said city was made under his direction. The board of commissioners for Texas City had passed an ordinance, which was in effect at the time plaintiff’s horse was killed, making it unlawful for the owner of any horse or stock of any kind to permit such animals to run at large within the corporate limits of Texas City, and fixing a penalty against the owner for the violation of the ordinance. Plaintiff’s horse was running at large at the time it was killed, having been turned out on the commons near the town by plaintiff. Upon this state of the evidence, the defendant, not being required to fence its track at the place where the animal was killed, would not be liable, unless the killing was caused by the negligence of the defendant’s employés operating the motorcar.

This rule of law was recognized and applied by the trial court in his main charge to the jury, but at the request of plaintiff the court gave the following special charge:

“You are instructed that, before you can find for the defendant upon the one issue as to whether or not the horse was killed within the city limits of Texas City, you must find from the evidence that the city of Texas City was, at the time said horse was alleged to have been killed, an incorporated city or town, duly incorporated under the laws of the state of Texas.”

Under proper assignments plaintiff in error complains of this charge, on the ground that it submitted an issue not raised by the evidence and was calculated to confuse and mislead the jury. We think this is a valid objection to the charge. In cases in which, from the state of the evidence upon other issues submitted, it would be unreasonable to presume that the jury determined the case upon an issue not raised by the evidence, the submission of such an issue has been and should be held harmless error; but in this case, while we are inclined to think the evi-deuce of negligence on the part of operatives of the motorcar is sufficient to raise that issue, the evidence to the contrary is so preponderating that we cannot say that the charge complained of was not calculated to have improperly influenced the jury and produced an erroneous verdict.

Defendant in the court below did not show the petition, election, nor order of the commissioners’ court of Galveston county incorporating the town of Texas City, and the record shows that plaintiff’s contention was that, in the absence of such evidence, it was for the jury to determine whether or not said town was legally incorporated, and unless the jury should so find the defense that the animal was tilled in the corporate limits of a town, where the defendant was not required to fence its tract, was not available. The undisputed evidence shows that the town of Texas City was at least a de facto municipal corporation. The corporate limits of the town had been surveyed and established. It had a municipal- government, which was exercising all the authority of the governing bodies of incorporated towns. The ordinances passed by the board of commissioners for the town were introduced in evidence. The question of the legality of the proceedings by which the town was incorporated was not raised by any pleading or evidence, and we understand the law to be that such question cannot be raised by a collateral attack, but only in a quo war-ranto proceeding brought in the name of the state.

For the error of the trial court in giving the special instruction before set out, the judgment is reversed, and the cause remanded.

Reversed and remanded.
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author: GBAYES, J.

text:
    HOUSTON & T. C. RY. CO. v. ROBERTS et al.
    (No. 7460.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 25, 1918.
    On Motion for Rehearing, Feb. 28, 1918.)
    1. Witnesses @=>45(2) — Competency of Infant Witness — Question for Court.
    Whether a negro boy, suing railroad for personal injuries, was competent to testify as a witness, in that he understood the nature and obligation of an oath, was a matter resting in the sound discretion of the trial court.
    2. Witnesses @=345(2) — Infant Witness-Ascertainment of Intelligence — Competency.
    When a child of tender years is offered as a witness, it is proper to ascertain whether he has sufficient intelligence and comprehension of the obligation of an oath to be prompted thereby to tell the truth, and if he has intelligence enough to distinguish between good and bad, and to understand the nature and effect of an oath, he should be permitted to testify; the converse also being true.
    3. Witnesses @=>45(2) — -Infant Witness-Instruction as to False Swearing.
    Where an infant witness is not familiar with such phrases as! “the obligation of an oath,” “the pains and penalties of perjury,” or “the consequences of false swearing,” in a proper way he should be instructed in simple terms, and, if he then reasonably understands the difference between right and wrong, that it is wrong to swear falsely, and that he will be punished for it, should be permitted to testify.
    4. Railroads @=>348(2) — Injuries at Crossing — Failure to Maintain Warning Bell as Proximate -Cause of Injury — Sufficiency of Evidence.
    In an action against a railroad for injuries to a negro boy, evidence held to show that the boy must have known that a freight train was passing on the track behind him when he stepped backward into it, as he claimed, to avoid another engine, so that the railroad’s failure to keep an electric bell at the crossing to warn of the approach of a train, which the boy knew had already partly passed him, could not have been a proximate cause of his injury.
    5. Railroads @=^337(1) — Injuries at Crossing-Failure to Keep Flagman as Proximate Cause of Injury.
    The negligence of a railroad in failing to keep a flagman at its crossing was the proximate cause of injuries to a negro boy when he backed into a passing freight train, in an endeavor, as he claimed, to avoid another engine approaching on another track; since, if a flagman had been at the crossing, possibly he could have prevented the b'oy from going on the tracks at all, or could have induced him to stand still between the two tracks, or have hurried him- on across ahead of the approaching engine, or perhaps stopped the freight train before it reached the point of the accident.
    6. Railroads @=>348(7) — Injuries at Crossing-Contributory Negligence of Boy-Sufficiency of Evidence.
    In an action for injuries to a 10 year old negro boy at a railroad crossing when he stepped back into a passing freight train, as he claimed, to avoid a switch engine approaching on another track, in view of the age of the boy, evidence held sufficient to support the finding acquitting him of contributory negligence, though it was not affirmatively shown that for his want of discretion the alleged negligent act of the boy in stepping back into the train was not imputable to him.
    7. Railroads @=>325(1) — “Negligence” of Young Boy — Test of Prudence.
    If a boy of 19 years, injured at a railroad crossing, acted with the prudence that a child of his ago, intelligence, and experience would use under the same or similar circumstances, he was not guilty of contributory negligence.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Negligence.]
    8. Appeal and Error @=>930(1), 1062(1)— Harmless Error — Submission of Issue without Support in Evidence.
    In an action for personal injuries against a railway, where other issues of negligence on which recovery could be based were properly submitted, error in submitting one issue of negligence, without support in evidence, was harmless to defendant, and it will be presumed that verdict for plaintiff was based on the issues supported by evidence rather than on the single issue unsupported.
    9. Damages @=>186 — Loss of Services of Child During Minority — Basis to Fix Money Value.
    In an action by the parents of a boy injured at a railroad crossing, the mere fact that the boy was in good health prior to losing his arm at 10 years of age, standing alone in. the proof, furnished no adequate basis on which the jury could fix the money value of Ms services to his parents during the balance of his minority.
    On Motion for Behoaring.
    10. Baiuroads <®=3348i'2) — Injuries at Grossing — Manner of Injury.
    In an action for injuries to a negro boy at a railroad crossing, evidence held to show that the boy stopped and stood between two tracks to let a switch engine go by, and, in attempting to get out of its way, backed into a freight train behind.
    ■Graves, X, dissenting in part.
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by Mary Boberts and others against the Houston & Texas Central Kailway Company and others. From judgment against the named defendant, it appeals.
    Affirmed in part; reversed and remanded in part.
    Baker, Botts, Parker & Garwood and Me-Means, Garrison & Pollard, all of Houston, for appellant.
    W. J. Howard, Clarence Kendall, and Kowe & Kay, all of Houston, for appellees.
   GBAYES, J.

An admittedly correct general statement of this case is thus made: Benjamin Boberts, a negro boy about 10 years old, lost his right arm under the wheels of a car of a moving freight train, and brought this suit by Isaac Boberts and Mary Boberts, his father and mother, as next friends, against the Houston & Texas Central Bailway Company, the Texas & New Orleans Eailroad Company, and the Galveston, Harrisburg & 'San Antonio Kailway Company, to recover therefor, laying his damages at §20,000. In the same suit his parents sought a recovery on their own behalf for the loss of the earnings and services of their son from the time of his injury to the date of his majority, laying their damages at $2,500. The suit was dismissed by the plaintiffs as to the defendants Texas & New Orleans Bailroad Company and the Galveston, Harrisburg & San Antonio Kail-way Company, and they passed out of the case. A trial before a jury resulted in a verdict and judgment against the Houston & Texas Central Bailway Company, in favor of the minor, for $1,500, and in favor of his parents for $500. From this judgment it has appealed.

After charging that the railway company was operating the freight train inside the limits of Houston, plaintiffs alleged:

“At a point near Trentham street, in said city, and while the said train was going in eastwardly direction, at a rate of about 15 miles per hour, it crossed the said Trentham street, or a street or way known and designated as Trentham street, which is a very much used public street, over which pedestrians and vehicles are constantly passing; that shortly prior to the time the said engine and cars had reached Trentham street, at a point where the track along which it was then and there traversing intersects said street, the said Benjamin Boberts, who was on said street, had started to cross defendant’s tracks which cross said street, when he was struck by the engine or one of the cars of said train, or some projection therefrom, and knocked down and his arm was drawn under the wheels or other portion of the said engine, or locomotive, or cars, and severed from his body at or near the shoulder joint, or his arm was so mashed and injured that it became necessary to amputate the same, and same was amputated as a result of such injury, and his whole body was otherwise seriously bruised and injured.”

Kecovery was predicated upon the alleged negligence of defendant, in substance: (1) In operating the train at a point within the limits of the city of Houston at a rate of speed in excess of six miles per hour, contrary to an ordinance of the city which forbade a greater rate of speed; (2) in failing to keep a watchman or flagman at the crossing to indicate to persons about to cross that a train was approaching; (3) in failing to keep and maintain an electric bell or other device at the crossing for the purpose of warning persons in general, and the minor in particular, of the approach of trains; (4) in failing to sound the whistle or bell as the train approached the crossing to warn the minor or other persons having occasion to cross the tracks of the approach of the train.

The railway company pleaded the general issue and contributory negligence, of the minor and of his parents. The court did not submit the first of these grounds of negligence to the jury, and it passed out of the case.

By its first assignment of error appellant insists that the court erred in permitting the plaintiff Benjamin Boberts to testify as a witness, upon the ground that he did not understand the nature and obligation of an oath. This was a matter that rested in the sound discretion of the trial court, and, after a very careful reading of the record, we are unable to say that any abuse of that discretion, in permitting the boy to testify, was shown. That court having had opportunity to observe him, and having heard his testimony upon his examination, and his manner of answering questions, was in a better position to determine the qualification of the boy to testify than is an appellate court. The boy was twice upon the witness stand, and in qualifying the bill of exceptions allowed to the ruling in holding him qualified to testify the court said:

“On his second examination he freely told the facts as to the instructions received by him from his mother, and in both examinations impressed the court with the fact that he was disposed to tell the truth as he understood it to be; that he knew what a lie was; and that he would be punished if he told a lie on the stand.”

We can neither say that the evidence touching the boy’s qualifications did not fully justify that conclusion, nor that, if it did, he was not a competent witness. The rule is that, when a child of tender years is offered as a witness, it is proper to ascertain whether he has sufficient intelligence and comprehension o£ the obligation of an oath to be prompted thereby to tell the truth. If he has intelligence enough to distinguish between good and bad, and to understand the nature and effect of an oath, he should be permitted to testify. The converse of this is equally true. Schouler, Dom. Rel. pp. 526, 527; 1 Greenleaf, Ev. § 367.

We do not think the purpose of this rule would be subserved by disqualifying every youthful witness who could not explain the meaning of such terms as “the obligations of an oath,” “the pains and penalties of perjury,” or “the consequences of false swearing” — expressions which even adults would often find difficult of ready definition; but that, in instances where it appears that he is not .familiar with such phrases, he should in a proper way be instructed in simple terms, and if he then reasonably understands the difference between right and wrong, that it is wrong to swear falsely, and that he will be punished for it, he should be permitted to testify. This, we think, the effect of the holding in North Texas Construction Co. v. Bostick, 98 Tex. 243, 83 S. W. 12. The assignment is therefore overruled.

The second, fourth, sixth, seventh, eighth, and tenth assignments in varying forms, so couched as a result of different steps and procedure taken upon the trial, in net result and effect make the same final attack upon the judgment; that is, that no such negligence of appellant as could have been the proximate cause of the accident and injuries was shown. This general contention is summarized in the tenth assignment as follows:

“The verdict of the jury and the judgment of the court based thereon are contrary to the law and evidence in this, that the undisputed evidence shows that Benjamin Roberts, at the time of the injury, had crossed over all the tracks of the defendant, except the north switch track, and was standing near the most northern track, passing along- and beside the plank fence of the defendant company, and the switch track that led into the yards of the defendant company, and that Benjamin Roberts at the place as testified to by him and other witnesses was in a safe position, and that the failure to ring the bell or to have an automatic bell or other device, or to blow the whistle, or to keep a watchman or flagman at said crossing, could not have been the proximate cause of the accident and injuries, in that Benjamin Roberts testified that, by reason of a switch engine coming out of the yards, he stepped backwards and into a freight train that was passing, and that the engine and several cars in said train had already passed at the time he stepped backwards into said train, and that his injuries were produced by stepping backwards into and against the passing train, and, this being true, the negligence of the defendant, if any, could not have been the proximate cause of his accident and hie injuries.”

In other words, conceding the negligence of appellant in all the respects mentioned in the assignment, there was still no liability, because it could not have been the proximate cause of the boy’s injuries. But after a careful consideration of the evidence we are unable to accept this conclusion, and think that at least one ground of negligence proximately causing the injury was both pleaded and proved: The failure to keep a watchman or flagman at the crossing.

There were only two theories as to how the accident happened, and they were directly conflicting. The boy, Benjamin Roberts, testified that while he was attempting to cross appellant’s tracks from the south going north, at what is admitted to be a public crossing, he had passed over the main line track, when, in attempting to get out of the way of a switch engine moving west-wardly along another track next to and adjoining the main track, he backed into' the freight train moving eastwardly along the main line track, and was knocked down by it. In this statement he is corroborated by Janie Riggs. It is true that she said he was struck by a pipe on the refrigerator car, but that did not necessarily impair her testimony that he was hit by the freight train on the main line while backing away from the switch engine on the track parallel to and adjoining the main line, because the projecting refrigerator pipe was of course a part of the train.

The railway company’s witnesses, ujjon the -other hand, swore that there was no switch engine passing there toward the west at all at the time, but that the boy ran from the north side across the first track over to, and tried to hop on, the freight train going by toward the east, catching hold of the ladder and trying to get on the train, but stumbled and fell under it. The jury saw fit to reject this latter theory, and we are not, therefore, further concerned with it.

The two tracks along which these two oppositely moving trains were thus found to be running were quite close together at the place of the accident; being about five feet apart. It is undisputed, also, that the engine and several cars of the freight train had already passed the boy before he was struck.

While the jury seems to have found, in response to special issue No. 30 submitted at the request of the railway company, that he did not know the freight train was thus passing behind him at the time he stepped backward into it, the majority of this court think that was an impossibility under the evidence, considering his close proximity to it, and therefore that the failure to keep an electric bell at the crossing to warn the boy of the approach of a train he then knew had already partly passed him could not have been a proximate cause of his injury; the writer, however, dissents from this view, believing there was room under the evidence for ordinary minds to differ upon the question of whether or not, in the probable excitement of avoiding the switch engine in front, the boy might have been oblivious of the presence of the freight behind during the few seconds required for its first fouT cars to pass him, and, if he was, then that the clanging of an electric bell, or other signal system, might have warned him. in time to have escaped injury.

But, however that may be, there is no contrariety of opinion as to the effect of the other act of negligence the jury found appellant guilty of — -its failure to keep a flagman at that crossing. If one had been there, he could either have prevented the boy from going on the tracks-at all until the freight had passed, or hurried him on across ahead of the switch engine, or induced him to stand still between the two tracks, or possibly have stopped the train before it reached the point of the accident. M., K. & T. By. Co. v. Magee, 49 S. W. 156, affirmed by Supreme Court, 92 Tex. 620, 50 S. W. 1013. The grouped assignments raising the question under discussion are accordingly overruled.

Under its fifth assignment appellant contends that the boy was guilty of contributory negligence—

“in that he was either injured by hopping the train of the defendant and being thrown under the wheels of the train, or else that he carelessly and negligently stepped back against a moving freight train and was thereby thrown under the wheels of the train.”

But the jury discarded the suggestion that he hopped the train, as has been above mentioned, and then further acquitted him of contributory negligence in backing into it under the circumstances they found he did. Appellant’s insistence, however, is that since the 10 year old boy, Benjamin Boberts, was neither within that tender age at which the courts would, as a matter of law, hold him exempt from the charge of contributory negligence, nor yet old enough to be likewise held absolutely responsible for his acts, the question was one for the jury to determine from the evidence before them, and because (as the railway company contends) the plaintiffs did not affirmatively show that, for want of discretion, the negligent act of the boy in stepping back into the train was not imputable to him, it was entitled to a peremptory instruction. The following cases are tendered in support of this position: Railway v. Shiflet, 94 Tex. 139, 58 S. W. 945, and authorities cited; Dowlen v. Texas Power & Light Co., 174 S. W. 675; Waterworks v. White, 44 S. W. 181.

In so far as expressions in those opinions may approve the principle invoked by appellant, we think they were being applied to a very different state of case; that is, where it was sought to excuse the child entirely on account of his age from the effect of acts so plainly wrong that it would be presumed he knew better than to do, unless lacking in that degree of intelligence a child of his age would ordinarily have, as where an 11 year old boy of average'intelligence, being a trespasser thereon, went to sleep upon a railroad track, or where a 13 year old boy of like intelligence, after express warning not to do so, picked up a live electric wire; in such Instance, to excuse him, it must be shown that he did not have sufficient intelligence and discretion to understand and appreciate the danger. All those cases recognize, however, that a different rule obtains in a case like this one, and in the latter two the authorities so holding are tabulated. This accident happened at a very public and much-used crossing within a populous city, upon which the injured boy, along with the public generally, had the right to go, and between two moving trains going in opposite directions upon tracks only about five feet apart, and with no watchman to warn those using the crossing of the danger of approaching trains.

The contention of appellant as attempted to be applied here is fallacious, we think, in that it assumes this boy’s act was negligent, without taking into consideration his immature years at all; while we are not prepared to concede that, under the facts shown, it would have been negligence as a matter of law had he been an adult, yet that might be admitted, and still it would not necessarily be so as to a child of his age, for the reason that what is negligence in an adult is not always such in a child. We think the trial court made the proper distinction in the tenth paragraph of his charge to the jury, as follows:

“In passing upon the question of whether or not Benjamin Boberts was guilty of contributory negligence, you are instructed that if you find that he acted with the prudence that a child of his age, -intelligence, and experience would use under the same or similar circumstances, then he would not be guilty of contributory negligence.”

This test has been often approved in similar cases, and since in response to it the jury, in its general verdict for appellees, upon what we deem to be ample evidence, acquitted the boy of contributory negligence, the assignment assailing that finding cannot be sustained. Evansich v. Railway, 57 Tex. 128,44 Am. Rep. 586; Cook v. Navigation Co., 76 Tex. 358, 13 S. W. 475, 18 Am. .St. Bep. 52; Railway v. Fletcher, 26 S. W. 447; Railway v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 82; Thompson v. Railway, 32 S. W. 192; Railway, v. Coleman, 51 Tex. Civ. App. 415, 112 S. W. 693.

The third assignment is devoid of merit, and is overruled without discussion.

Complaint is made in the ninth assignment that there was no evidence of any failure of appellant’s employés to ring the bell on the engine as it approached the crossing, in that the undisputed testimony showed the bell was ringing, and that the court erred in submitting the question of such failure as an issue to the jury.

We are doubtful as to whether there was sufficient support for the submission of this question; but there having been other proper issues of negligence submitted upon which a recovery could be based, and which were supported by evidence, it will be presumed that the verdict was based on these rather than upon the single issue not so supported, and, if there was error in submitting the question as to whether or not the bell on the engine was rung, it became harmless. T. & N. O. Ry. Co. v. Siewart, 163 S. W. 624; Southern Ry. Co. v. Shinn, 153 S. W. 639; G., H. & S. A. Ry. Co. v. Watts, 182 S. W. 413, writ of error refused. The assignment is therefore overruled.

The eleventh and last assignment presents as ertor the allowance of a recovery of $500 to Mary and Isaac Roberts, the parents of the boy, upon the ground that there was no evidence to show that the boy, Benjamin Roberts, would have earned any money, or would have been of any pecuniary benefit or assistance to his parents from the date of the accident until he reached his majority, had he not been so injured.

Such is the state of the record, and the assignment must be sustained; the mere fact that the boy was in good health prior to losing his arm at 10 years of age, standing alone as it did in the proof, furnished no adequate basis upon which a jury could'fix the money value of his services to his parents during the balance of his minority, because, had he not been injured, despite his youth and good health, he might have been a financial burden rather than a help to them for that entire period.

From the conclusions announced, it follows that the judgment of the court below should be in all things affirmed as to the minor, Benjamin Roberts, but reversed and remanded for another trial as to the parents, Mary and Isaac Roberts, upon the one issue of what amount of money, if any, the minor would have contributed, or would have been worth, to them during his minority, and it has been so ordered.

Affirmed in part, and in part reversed and remanded.

On Motion for Rehearing.

A plethora of motions has greeted the reconsideration of this case; rehearings being asked respectively by appellees Isaac and Mary Roberts, and appellant railway company, while the latter has also by separate application requested other and additional findings of fact.

Unconvinced that error was committed in our former judgment, it will be adhered to, and both motions for rehearing are overruled ; occasion is here taken, however, under the aid given us through appellant’s criticism of it, to somewhat modify this expression in the original opinion:

“If one [meaning a flagman] had been there, he could either have prevented the boy from going on the tracks at all until the freight had passed, or hurried him on across ahead of the switch engine, or induced him to stand still between the two tracks, or possibly have stopped the train before it reached the point of the accident.”

The language used makes a broader statement of what might have been the result of then having a flagman present at the crossing than was in mind; it was not intended to therein find as an actual fact that he could have prevented tne accident in each and all of the detailed ways mentioned in the quoted sentence, but only that he both might and could have warned the boy of his danger, in some one or possibly more of the ways indicated, and in all probability have thereby prevented the injury.

The appellees Isaac and Mary Roberts urge that the record did contain sufficient facts upon which the jury could reasonably estimate the financial benefits they would probably have received from their minor son until his maturity, citing in support of their view the cases of Brunswig v. White, 70 Tex. 504, 8 S. W. 85, and Railway Go. v. Measles, 81 Tex. 474, 17 S. W. 124.

But when the facts in those cases are compared with what appears in their own, plainly the same rule of law could not apply to both; in the White Case the action was by the parents for the death of -a little six year old daughter, who, in addition to being bright and intelligent and in good health, was shown to have performed much valuable service in helping her parents operate a dairy; her mother testifying:

“She was of great assistance about the house. She aided me in taking care of my baby, then about a year old; she helped to wash the dishes, and swept the house, and rendered other important services about the. house. We were poor people and all of us worked.”

A similar condition in effect likewise obtained in the Measles Case, as we read the opinion; there the mother had sued on account of injuries to her seven year old son, and, to use the language of the court:

“It had been shown that the boy was obedient and healthy; that he was therefore both willing and able to work; and hence that his services would be as valuable at least as those of an average boy.”

There had then been given testimony as to the average value of the services of boys of about his age, which the court said might have been unnecessary, but certainly was neither impertinent nor improper.

As stated in our original opinion, no such proof was made in this case; the sole fact shown being that his boy was in good health before his arm was cut off; that was an insufficient basis for the award given his parents.

On the application for further fact findings in abundance of caution that no injustice on that account he in our opinion done appellant, we cheerfully enlarge upon the former findings as follows: The distance between the tracks upon which the two oppositely moving trains passed each other was stated .as about 5 feet; the railway company challenges this statement' as not being supported by the evidence, insisting that it was shown to be 20 feet. After re-examining the record, however, we find no direct testimony specifically fixing this particular distance in feet, and therefore modify our former statement to that extent; but it does appear that the space was a very narrow one, and Janie Riggs, an eyewitness of the accident, and the only witness whose' testimony covered the point, repeatedly stated that when she first saw the boy, just before he was hit, he was standing between the two tracks on which the trains were thus moving, and that the switch engine was about 4 or 5 feet from him ; she then continues:

“At one place it is as far as to the railing in this room between those two tracks, but at this place you cannot walk betwixt them. I did not see the boy do anything just before he was hit, but just waiting there. I guess he' was waiting to get across. At the time the switch engine was four or five feet from the boy there was a freight coming in on the main line track. The engine and some cars of the freight had passed the boy at that time. The boy was facing the switch engine at the time he was struck: I did not at any time see the boy on the track that the switch engine was on. After he seen the switch engine was coming in, the boy moved out of the way of the switch engine, because it was a narrow space at the crossing, across the road. The tracks run so close together he had to stand further up in the yard to go across. ⅜ ⅝ ⅜ £reigkt was coming in, and he was too close to the switch engine and he got out of the way and got too close to the freight. The way he got out of the way was, he just stepped back a little bit from where he was standing.”

It is true that on cross-examination, when shown a map made by one of appellant’s witnesses, which he testified was drawn to a scale of 20 feet to the inch, she attempted to approximately indicate thereon the relative positions of the two tracks, the switch engine, the freight train, and of the boy at the time, but we do not think this, as against her previously mentioned direct statements about the distance, made from her own observation and knowledge, would justify a finding that the tracks were approximately 20 feet apart, although the plat may have shown about an inch of space between them.

In its motion now under consideration appellant requests that, in lieu of this court’s statement of the facts immediately surrounding the injury of the boy, as appearing, in its opinion, substantially the following findings be made:

“Benjamin Roberts lived on one side of the railroad tracks, which were laid in a public street, and a store was situated on the opposite side. Benjamin Roberts’ aunt sent him to the store to buy some onions, and when he returned his mother immediately sent him back again to buy some onions for her. It was in performance of this errand that he was hurt. When his mother sent him back to the store, he proceeded to the street in which” the tracks were laid, and crossed over the main line track, and then saw coming out of the yards from the east a switch engine, going to the west, and he stood there between the main line track, and the track on which the switch engine was- coming, looking at the switch engine for the space of time, variously estimated at from two to ten minute's. While he was' standing between the tracks and while the switch engine was approaching him, a heavy freight train going eastward reached him, and the locomotive and four cars passed him by the time the switch engine got to where he was standing, and he then backed away from the switch engine and into the fifth car of the freight train, which knocked him down and ran over his right arm, necessitating its amputation near the shoulder.”

We are unable to comply with the request and so find, for the reason that in the main, if not the only material, respect wherein the suggested statement differs from our own, it assumes that the boy first stood loitering between the two tracks looking at the switch engine coming toward him for from two to ten minutes, and then when, after that length of time, it got to where he was, he backed away from it and into the freight train; such is not our understanding of the effect of the evidence; the boy himself more than once testified that he stopped and stood waiting there to let the train (meaning the switch engine) go by; it is true he said he stood there some four or five minutes, but that probably meant nothing more than his method of estimating a brief period of time.

The same may likewise, we think, be said of the statement of Janie Riggs that it was some ten minutes between the time she first saw him standing there and the time he was hurt, 'if, indeed, she did not first see him there when he was making a prior trip to the store to the one during which the accident occurred; for the proof is undisputed that he made two like trips from his home to the store only a few minutes apart; moreover, the boy’s mother testified that it was only two or three minutes after she sent him to the store that they called to her he was hurt; this was on his second trip, because his aunt had sent him the first time.

We therefore Think the fair construction of the testimony, taken as a whole, is that the boy stopped and stood between the two tracks for the purpose of letting the switch engine go by, and, in attempting to get out of its way, backed into the freight train behind.

Pursuant to these conclusions, the corresponding orders have been entered upon the several motions discussed.
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author: HADE, J.

text:
    WHITE v. ROUGHTON et al.
    (No. 1288.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1918.
    Rehearing Denied March 6, 1918.)
    1. Principal and Agent &wkey;>149(2) — Assuming to Act as Agent — Individual Liability.
    Recovery cannot be had against one assuming to be an agent, for liquidated damages stipulated in a contract, but .recovery can be had for consequential damages, or the value of services rendered.

      2. Principal and Agent i&wkey;149(2) — Unauthorized Contracts — Eiability—Damages.
    Whore one falsely represents that he is agent for another and enters into a contract, the other party can sue him on his warranty without tendering performance to the supposed principal.
    Appeal from Collin County Court; R. E. Moulden, Judge.
    Suit by G. C. Roughton and W. W. Mur-rah, doing business under the firm name and style of the Roughton-Murrah Company, against J. D. White and another. Judgment for plaintiffs against the named defendant, and he appeals.
    Reversed and remanded.
    Wallace Hughston, of McKinney, for appellant. Read, Lowrance & Bates, of Dallas, for appellees.
   HADE, J.

G. C. Roughton and W. W. Murrah, doing business under the firm name and style of Roughton-Murrah Company, instituted this suit, praying for judgment against Mrs. J. L. White, individually and as independent executrix of the estate of her husband, and against her son J. L. White. Plaintiffs alleged in substance that they were real estate agents; had been employed by Mrs. J. B. White to sell or exchange certain, lands in Denton county, Tex., on terms to be agreed upon; that they secured a purchaser who was ready, willing, and able,to purchase said lands; that the contract of sale or exchange was duly executed October 8, 1915, by James Jackson, a party procured by appellees, and by J. L. White, the son of Mrs. J. L. White; that the said J. L. White was duly authorized by his mother to execute said contract. Plaintiffs allege in the alternative that J. D. White represented that he was instructed and authorized by his mother to enter into said contract, and was duly authorized to sign the check for $500, which was deposited to guarantee the performance thereof; that he further represented that he was looking after the business of the estate of his deceased father. It is alleged that plaintiffs relied upon such representations, and they prayed that, in the event the representations made by said J. D. White were not in fact true, they recover upon his warranty damages in the sum of $500. The record contains no statement of facts. The material findings of fact by the-court are as follows:

(8) J. D. White represented to the plaintiffs that he was authorized and had authority as administrator of the estate of J. L. White, deceased, to employ the plaintiff to sell the land in Denton county, as stated in said contract, and represented to them that he was authorized as such administrator, and was acting for his mother to exchange said land for the Dallas property, and the plaintiffs understood and knew that J. B. White did not own the Denton county land and understood that they were dealing with him in a representative capacity and not in his individual capacity.
(10) The deed to the Dallas property was never tendered to Mrs. J. E. White.
(12) I find that at the time the contract was executed it was not the intention of the parties to the contract that J. L. White was to be bound individually.
(a) There was no evidence that J. L. White individually received any consideration, either prior to or at the time of the execution of the contract, or since.
(b) That the evidence did not show that under the contract J. L. White was to receive any consideration individually.

The court concluded as a matter of law that the plaintiffs were not entitled to recover against Mrs. J. D. White in any capacity, but concluded that plaintiffs were entitled to recover against “J. B. White individually upon the contract sued upon, $500 being the amount of liquidated damages therein set out, and all costs of suit and judgment is so rendered.” The written contract of exchange made between J. B. White and James Jackson is signed by White, “acting as administrator White estate,” and he is so described in the body of the contract. The fourth paragraph of’ the contract is as follows:

“To show good faith in ’the execution of this contract each party has this day deposited with the Ronghton-Slurrah Company the sum of $500, which it is agreed that if either party to this contract fails to comply with the terms herein set out, the party so failing shall forfeit the said $500i to the Roughton-Murrah Company, as liquidated damages.”

Mrs. J. B. White denied the authority of her son to execute the contract or to sign and deliver the check for $500 in her name. Neither party filed exceptions to the court’s findings of fact.

The first asignment is that the court erred in concluding as a matter of law that the plaintiffs were entitled to recover of J. B. White individually upon the contract the liquidated damages specified .therein in the sum of $500. According to the doctrine announced in Heard v. Clegg, 144 S. W. 1145, by Connor, C. J., appellant could not recover against J. B White the liquidated damages stipulated in the contract. Judge Connor uses this language:

“On the award actually made, no right of action as against Bomar can be predicated, for the award was in Bomar’s favor on the issue of a direct personal liability. If Bomar’s assumption of authority be construed as a guaranty that Clegg would abide Martin’s determination, the legal consequence of the breach of warranty would he for special damages in the way of loss of time, expenses, etc., which was neither alleged nor proven by appellant. The fact that one assumes to act as agent for another in signing an obligation in the name of such other without authority does not bind the acting agent on a contract. The damages in such case are measured by the injuries resulting from want of power, and not by the terms of the contract. Heard’s right of action against Bomar, if any, was not, as stated, on the award of the arbitrator, but at best for consequential damages, resulting from the unauthorized act of Bomar.”

While there is some conflict between the authorities as shown by the decisions in other jurisdictions, the rule announced above is sustained by the weight of authority. People’s National Bank y. Dixwell, Ann. Cas. 1915D, 722, note; Mechem on Agency (2d Ed.) §§ 1400, 1401; 2 C. J. 811, § 485. Since the court has applied an improper measure oí damages, we sustain the first assignment. It does not appear that any evidence was offered by appellees to sustain their right to recover under their alternative plea against J. L. White. The proposition is urged that since no deed to the Dallas property was ever tendered to Mrs. White Sby Jackson or any one for him, plaintiffs are not entitled to recover in any event. It would not be necessary to show tender of performance to Mrs. White to entitle the plaintiff to recover against J. L. White on his warranty. Any competent proof that Jackson was ready, willing, and able to consummate the exchange would suffice.

By his second assignment of error it is insisted that the court erred in rendering judgment against appellant after having found that it was not the intention of the parties that J. L. White should be bound by the contract. Under proper pleading and proof White might be rendered liable upon the contract to the extent of the reasonable value of the services rendered by plaintiffs, but could not be held liable for the liquidated damages provided in the contract.

Under the third assignment it is insisted that neither the pleadings nor the evidence showed any liability of any kind against J. L. White. As heretofore stated, the suit was in the alternative, and while that portion of the petition, seeking to recover against J. L. White is not as full and specific in its allegations as it might have been, we think it is sufficient as against a general demurrer.

For the errors indicated we think the judgment should be reversed, and the cause remanded; and it is accordingly so ordered.

Reversed and remanded.

HUFF, C. J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.
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