author: RASBURY, J.

text:
    FIRST STATE BANK OF TEAGUE et al. v. HADDEN et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 31, 1913.
    Rehearing Denied June 21, 1913.)
    1. Corporations (§ 672) — Foreign Corporations — Right to Sue — Objections.
    Where the petition in an action by a foreign corporation alleges facts showing an intrastate transaction, and does not state that it has a permit to transact business in the state, the issue of its right to do business in the state may be raised by exception.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. § 672.]
    2. Corporations (§ 672) — Foreign Corporations — Right to Sue — Objections.
    Where the petition in an action by a foreign corporation fails to disclose the character of the transaction sued on, and does not allege that it has a permit to transact business in the state, the issue of its right to do business in the state may be raised by appropriate pleading and proof.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2645-2649; Dec. Dig. § 672.]
    3. Assignments fob Benefit of Creditors (§ 307) — Claims — Establishment — Actions.
    Rev. Civ. St. 1911, art. 102, providing for the allowance by the assignee for creditors of verified claims unless contested by a creditor who may sue to set aside the allowance, relates solely to cases where a creditor contests the validity of another consenting creditor’s claim, and does not apply to a creditor asserting the validity of a claim disallowed by the assignee.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 893-899; Dec. Dig. § 307.]
    4. Assignments foe Benefit of Creditors (§ 44) — Consent to Assignment — Acts ■Constituting.
    Where a creditor of a debtor making a statutoiy general assignment filed its claim with the assignee within four months after notice, and attached to the claim a letter from it addressed to its attorney, stating, “Xou are authorized to file claim with assignee and accept whatever it may pay,” the creditor sufficiently accepted the assignment in writing within Rev. Civ. St. 1911, art. 95.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 198-207; Dec. Dig. § 44.]
    5. Assignments for Benefit of Creditors 44) —Consent to Assignment — Acts onstituting.
    Where a creditor filed his claim with the assignee within the four months, and inclosed the claim in a letter from its authorized attorney to the assignee which recited, “Please file this account and advise when we can expect payment,” he accepted the assignment.
    [Ed. Note. — For other eases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 198-207; Dec. Dig. § 44.]
    6. Assignments for Benefit of Creditors § 44) — Acceptance of Assignment — Waiver.
    Where an assignee in a statutory general assignment for creditors received claims of creditors, and allowed the same, and made the notation thereon that the claims were allowed subject to statutory acceptance, but did not return them to the creditors or notify them of the memorandum made thereon, he waived written acceptance by the creditors as required by Rev. Civ. St. 19Í1, art. 95.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §§ 198-207; Dec. Dig. § 44.]
    7.Assignments for Benefit of Creditors (§ 302) — Claims—Proof of Claims — Requisites — ‘ ‘True. ’ ’
    An affidavit by a creditor of a debtor making a statutory general assignment for creditors which avers that the statement is true, and that the debt is just, is sufficient within the statute providing that the affidavit shall aver that the claim is just and correct, where the claim was based on a promissory note of the assignor, the word “true” meaning conformable to truth, free from error, accurate, conformable to fact, not false.
    [Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. § 888; Dec. Dig. § 302.

    For other definitions, see Words and Phrases, vol. 8, pp. 7113, 7114.]
    Error to District Court, Freestone County; H. B. Daviss, Judge.
    Action by F. M. Hadden and others against W. A. Mixon, assignee of E. H. Robinson, in which the First State Bank of Teague and others became parties. There was a judgment establishing the claims of various creditors, and the First State Bank of Teague brings error.
    Affirmed.
    D. T. Garth, of Teague, for plaintiff in error. Baker, Botts, Parker & Garwood, of Iíouston, and W. E. Terrell, of Teague, for defendants in error.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RASBURY, J.

Defendants in error on January 13, 1911, instituted suit in the court below against W. A. Mixon, alleging, in substance, that Mixon was the qualified assignee of one E. H. Robinson, a former merchant of Teague, Tex., acting under authority of a statutory general assignment dated July 16, 1910, and in possession of the property and estate of said Robinson conveyed by said assignment for pro rata distribution among all consenting creditors. Defendants in error averred acceptance of the assignment, a waiver of written notice thereof by the as-signee, and a filing of their respective claims properly verified with the assignee within four months after publication by the assignee of notice of his appointment; also, that their claims were retained by said assignee until about Jánuary 11, 1911, when same were returned to defendants in error with the information that the assignee would not pay them. Further, it was shown that no distribution of the assets of the estate had been made at the time of filing suit, but that the assignee was about to do so without paying defendants in error their pro rata portion of the same. Temporary restraining order was asked against the assignee requiring him to retain the assets of the estate intact pending further orders of court. Judgment establishing their claims against the fund in the hand of the assignee, and that he be required to allow and pay pro rata the claims of defendants in error, along with all other lawful claims against said estate, was prayed for. A number of creditors were brought into the controversy in various ways, but of them only First State Bank of Teague and Stauffer, Eshleman & Co., and Peden Iron & Steel Company, defendants in error, are parties to the appeal. On trial in the court below plaintiff in error, First State Bank of Teague, a creditor whose claim had been allowed, opposed the relief sought by the defendants in error Stauffer, Eshleman & Co. and Peden Iron & Steel Company, whose claims had been rejected. The defenses of plaintiff in error to the relief sought by defendants in error will appear clearly by the assignments of error, and any facts arising thereon will be related in disposing of such assignments, since the facts as such are practically undisputed. In the court below judgment was for defendants in error Stauf-fer, Eshleman & Co. and Peden Iron & Steel Company, establishing their claims, and awarding them their pro rata share in the distribution of the estate. The First State Bank of Teague alone appealed.

The first proposition advanced is that defendant in error Stauffer, Eshleman & Co. was not entitled to maintain its suit, because, being a foreign corporation, it failed to allege in its petition and prove upon trial of the case either that it had a permit from the state of Texas to transact its business within the state or that the transaction with E. H. Robinson, the assignor, upon which its claim arose, was interstate commerce. Bearing upon this issue, the petition alleged that said Stauffer, Eshleman & Co. were incorporated under the laws of the state of Louisiana, and that the assignor Robinson was indebted to it for $358. .The petition contains no averments by which it can be determined whether the business between the parties was either interstate or intrastate transactions. The plaintiff in error’s brief fails to show any pleading or proof on its part in the court below asserting affirmatively that the debt sued upon represented an intrastate transaction, and that a permit from the state was necessary to lawfully conduct same. Thus it will be seen that the question is not raised, and hence the proposition cannot be sustained. If the petition, as a whole, had alleged a group of facts showing an intrastate transaction, the issue could have been raised by exception. Or the petition failing to disclose the character of the transaction plaintiff in error could have raised the issue by appropriate pleading and proof. Geiser Manufacturing Co. v. Gray, 126 S. W. 610; Panhandle Telephone & Telegraph Co. v. Kellogg, S. & S. Co., 132. S. W. 963; New State Land Co. v. Wilson et al., 150 S. W. 253.

The next proposition is that the court erred in allowing the claim of Stauffer, Esh-lemán & Co. and Peden Iron & Steel Company, and directing their pro rata payment, for the reason that the assignee having allowed certain other uncontested claims, not necessary to enumerate, and rejected the claims of said defendants in error, it was the duty of defendants in error to proceed under the statute to set aside the allowed claims rather than to enforce by suit an allowance of their claims, and cites article 102, R. S. 19Í1, to sustain its contention. As argued by counsel for defendants in error that article has, in our opinion, no application to suits to require allowance of claims by assignees. That article of the act obviously relates solely to cases where one creditor contests the validity or justness of another consenting creditor’s claim. Defendants in error’s suit does not question the validity of the claims of the other creditors, nor the action of the assignee in allowing same, but, on the contrary, asserts that defendants in error also have valid claims against the assignor which have been presented to the assignee properly verified, but which he refuses to allow and pay, and asks that the plaintiff in error be compelled to perform his duty. The petition states a good cause of action, and the proceeding is proper, and is in no sense controlled by the article cited.

The next proposition advanced) is that the court erred in allowing the claims of Stauffer, Eshleman & Co. and Peden Iron & Steel Company and directing their pro rata payment, for the reason that both said creditors failed, within four months after notice of the assignment, to file with the assignee their consent in writing thereto as provided by article 95, R. S. 1911. In connection with this proposition, the facts are that Robinson executed the assignment July 17, 1910, naming Mixon as assignee. Notice of the assignment was published August 12th, 19th, and 26th, in the Teague Chronicle. In addition personal notice was mailed to both defendants in error a few days after the execution of the deed of assignment. Stauffer, Eshle-man & Co. filed its claim with the assignee October 5, 1910, and attached to the claim ,and a part thereof was a letter from it addressed to its attorney, stating, among other things: “You are authorized to file claim with assignee and accept whatever it may pay.” The Peden Iron & Steel Company filed its claim with the assignee November 25, 1911. The claim was inclosed in a letter from its authorized attorney to the assignee, which, among other things, recited: “Please file this account and advise when we can expect payment.” The filing of the claims and the quotations from the letters, above is all the evidence bearing upon an acceptance of the assignment. The assignee on receiving the claim and allowing same made the notation thereon that the claims were allowed subject to statutory acceptance, but did not return them to creditors or notify them of the memorandum made thereon. He refused to pay the claims, among other reasons, because there had been no acceptance in writing of the assignment by the defendants in error. Article 95, R. S. 1911, provides, in substance, that creditors shall accept the assignment in writing within four months after the prescribed notice, and that those not assenting shall take nothing under the assignment. We are of opinion, however, that the related facts show a compliance with the statute, as well as a waiver of the written acceptance by the assignee. Stauffer, Eshleman & Co. in terms almost complied with the provisions of the statute, since the letter attached to its claim recites, “You are authorized to file claim with assignee and accept whatever it may pay.” The purpose of the acceptance is to bind the creditor to release the debtor in the event his pro rata part aggregates as much as one-third of his claim (article 93, R. S. 1911), and his agreement to “accept whatever it (the assignment) may pay” so clearly indicates his intention to accept the same as to leave no room for doubt or construction. With reference to the claim of the Peden Iron & Steel Company we are of opinion that it comes well within the rule stated in Sanborn & Warren v. Norton & Dentz, 59 Tex. 308. It is there said: “By coming in under a voluntary assignment the creditors express their election to accept of its provisions and are considered as acquiescing in the disposition directed by the assign- or to be made of the proceeds of the property.”

Accordingly, the filing of its claim by Peden Iron & Steel Company was in law an acceptance of the assignment, and by so doing it is bound by all the provisions of the act. In the case cited, it is further said that the act does not make consent of any character other than in writing invalid, since it only provides that those not consenting at all shall be denied participation in the funds, but does not expressly exclude those assenting otherwise than in writing. Further, it seems to us that the letter written by the authorized attorney of the Peden Iron & Steel Company is in effect an acceptance in writing sufficient under the statute. While the letter does not in precise terms say that the creditor accepts and agrees to be bound by the assignment, yet its intention is so clear in that behalf as not to be misunderstood. The assignee is told by the letter to file the claim and to advise the creditor when payment of the claim may be expected. Thus we have in writing that from which it can be easily deduced that the creditor assents to the assignment, and wishes to come within its provisions. Finally, we conclude that the conduct of the assignee as disclosed by the record shows a waiver by him of written acceptance. In the case just cited it is said: “The design of the statute was to compel the creditor to give notice of his acceptance, but to allow the assignee to waive written notice, provided 'the claim itself was duly filed, so that it could be taken into consideration in marshaling the debts due from the estate. The assignee is not compelled to allow any other but written notice; but, if he makes no objection and files the verified claim, we do not think that the claimant can object to being ranked among the accepting creditors of the estate.” Applying the above rule to the instant ease, the presumption is that the assignee intended to waive written consent by defendants in error and receiving no objection from assignee to the claim as filed defendants in error were entitled to receive their pro rata portion of the estate. While the statement involves no reflection upon the assignee, any other rule would prevent an equal distribution of the assignor’s estate for which the act was obviously intended.

The next assignment of error is that the claim of Peden Iron & Steel Company should not have been allowed for the reason that same was not properly verified. The statute provides, among other things, that there shall be included in the affidavit the recital “that the statement is true; that the debt is just.” The affidavit of the Peden Iron & Steel Company contained all the statutory essentials, other than the words just quoted, and in lieu thereof the affidavit stated -“that the * * ⅜ notes * * * are just and correct.” The claim - being based upon the promissory notes of the assignor, it was obviously impossible to say that the “statement” was true, and hence it was correct to refer to the notes rather than the statement. Thus the question is: Is the use of the terms “just and correct” substantially the same as “true and just”? In the case of Hughes v. Potts, 39 Tex. Civ. App. 179, 87 S. W. 708, this court held that an affidavit under the general assignment statute must at least be in substantial compliance with article 98, R. S. 1911, and that an affidavit which merely stated that the attached account was “correct” was not in substantial compliance with the article. It was there said that the account might be correct, and yet the debt not just, and that “correct” was not the equivalent of just and true. In the present case we have the statement that the debt is both correct and just, and since the word “just” is one of the words used in the statute, and since “correct” and “true” are practically synonymus in meaning, it occurs to us that there has in this case been a substantial compliance with the statute. “True,” as defined by the Century Dictionary, means, “conformable to truth, free from error, accurate.” The same authority defines “correct” as meaning, “conformable to fact, not false, accurate.” Accordingly we think the use of the word correct instead of true in the affidavit is in substantial compliance with the statute since the meaning_ of the words is nearly identical.

Finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. WILLIAMS et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 11, 1913.
    Rehearing Denied June 28, 1913.)
    1. Death (§ 42) — Actions—Parties.
    Act 1909 (Acts 31st Leg. [1st Called Sess.] c. 10; Rev. Civ. St. 1911, arts. 6048-6052), relating to liability for negligence to railroad emplojés, and in case of the death of an employe giving an action to his personal representative for the surviving widow, children, father, and mother, etc., did not change the existing rt le i. uder Rev. Civ. St. 1911, arts. 4698 and 4699, giving an action for the benefit of the surviving wife, children, parents, etc., to be brought by all or any one or more of the parties entitled thereto, .that the plaintiff in such suit might join the other statutory beneficiaries for the determination of .their rights, though alleging that they had none, so that, in an action by the widow and minor child for wrongful death, the court might properly render judgment against the parents of the deceased, although they had no legal notice of being made parties.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 58; Dec. Dig. § 42.]
    2. Master and Servant (§ 281) — Action foe Inju bies — Evidence—Orders.
    Evidence in an action for tne death of a railroad engineer alleging negligence of defendant’s conductor in ordering him to move his train, causing a collision, held to show that the engineer was justified in obeying the orders of the conductor.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dec. Dig. § 281.]
    3. Master and Servant (§ 185) — Injuries to Servant — Fellow Servants — Negligence-Railroad Conductor.
    Where it was the duty of a railroad conductor to read his orders, and then read them to the other train employes, but he read only the order given to the engineer which was different from the one given to him, he was negligent in ordering a movement according to the order g'iten to the engineer.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.]
    4. Evidence (§ 78) — Presumption—Failure to Produce Evidence.
    Where the evidence in an action for the death of a railroad engineer tended to show that an order was issued to him to pass another train at a certain place, and defendant possessed evidence which might have rebutted the presumption arising from the fact that it was written as read, that both the conductor and the engineer read the order in a certain way, defendant’s failure to produce such evidence would strengthen the presumption.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 98, 100; Dec. Dig. § 78.]
    5. Master and Servant (§ 227) — Injuries to Servant — Contributory Negligence.
    Where the death of an employé is solely the result of his negligent act of commission, his legal representative cannot recover damages for his death.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 668, 669; Dec. Dig. § 227.]
    6. Death (§ 99) — Damages—Excessive Damages.
    . In an action for the death of a railroad engineer in a collision resulting from the conductor’s negligence in ordering him to move his train, where deceased was 32 years of age and earning from $160 to $175 a month, a verdict of $10,000 for the widow and $15,000 to a daughter 9 years of age, in the absence of any evidence of passion or prejudice, would not be disturbed as excessive.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.]
    7.Appeal and Error (§ 877) — Parties Entitled to Allege Error.
    _ In an action by the widow and minor child against a railroad for the death of the husband and father, an engineer, the defendant could not allege error in that plaintiffs 'had the authority to. sue without joining the father and mother of deceased who were adjudged to have no right of recovery, and tnat it was unnecessary to join them, since no one could be injured by such error but the parents, and such injury, if any, did not concern the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    Appeal from District Court, Lavaca County ; M. Kennon, Judge.
    Action by Annie Williams, Louise Williams, and others against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiffs Annie and Louise Williams, and against the other plaintiffs and the defendants, and defendant appeals.
    Affirmed.
    ■ Patton & Schwartz, of I-Iallettsville, for appellant. R. B. Allen and Paulus & Rags-dale, all of Hallettsville, for appellees.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

This is a suit instituted by ap-pellees, Annie Williams, the widow, and Louise Williams, a minor daughter, of J. A.

"j'ed, in the employment of appellant as a locomotive engineer, who was killed in a head-on collision between his engine and another, brought about through the negligence of appellant’s conductor, who was in charge of train 83, on which deceased was the engineer, in ordering the latter to move, his train out of Tanglewood ■ station and proceed to Lexington, thus causing a collision between said train and train 82, just before the former arrived at Lexington. The cause was tried by jury, and resulted in a verdict for $25,000 in favor oí appellees, $10,000 being apportioned to Annie Williams and $15,000 to Louise Williams. After this cause had gone to trial, appellees filed a trial amendment in which it was alleged that John Williams and Mary Williams, who resided in the town of London, Dominion of Canada, were the parents of J. A. Williams, deceased, and asking that said parents be made plaintiffs in the suit. It was further alleged that J. A. Williams contributed nothing to their support, but devoted all of his earnings to appellees.

The first assignment of error assails the action of. the court in rendering judgment against the parents of the deceased because they were not parties to the suit, and had no legal notice of being made parties. The assignment is overruled. Railway v. Henry, 75 Tex. 220, 12 S. W. 828; Railway v. Taylor, 5 Tex. Civ. App. 668, 21 S. W. 975; Railway v. Renken, 15 Tex. Civ. App. 229, 88 S. W. 829; Taylor v. S. A. Gas Co., 93 S. W. 674. The law of 1909 (Acts 31st Leg. [1st Called Sess.] c. 10), relating to employes of railroad companies (articles 6648 to 6652, inclusive, Rev. Stats. 1911), has not changed the law embodied in articles 4698 and 4699, R. S. 1911, except to give the next of kin dependent on the dead employe a right of action.

The court charged the jury as follows; “If you believe from the evidence that on or about the 23d day of July, A. D. 1910, J. A. Williams was in the employ of the defendant as a locomotive engineer operating an engine drawing a freight train of the defendant, known as train No. 83, and you also believe from the evidence that the engine which the said J. A. Williams was operating collided with another engine drawing1 another freight train of the defendant, known as train No. 82, going in an opposite direction near the station of Lexington, and that as a result of said collision said J. A. Williams sustained injuries from the effects of- which he died on said date, and if you also believe from the evidence that A. T. Moffett was on said date an employe of defendant as conductor of said train No. 83, and if you also believe from the evidence that said Moffett as such conductor of said train No. 83 received an order from the defendant which required him to hold said train No. 83 at the station of Tanglewood until 10:25 a. m. on said date to await the arrival there of said train No. 82, and that said Moffett, in disregard of said order, directed said J. A. Williams to leave said station of Tanglewood before 10:25 a. m. on said date, and you also believe from the evidence that it was the duty of said J. A. Williams to obey the instructions of said Moffett to leave Tanglewood, and that said J. A. Williams did obey said direction of said Moffett and left Tanglewood before 10:25 a. m. on said date, if you believe from the evidence that said Moffett did so direct said Williams to leave Tanglewood, and you also believe from the evidence that said Moffett was negligent in so directing said Williams to leave said station of Tanglewood before 10:25 a. m. on said date, if you find that said Moffett did so direct said Williams to leave said station, and that this negligence, if any, of said Moffett, was the direct and proximate cause of the death of the said J. A. Williams, and you also believe from the evidence that the plaintiff Annie Williams was the wife, and the plaintiff Louise Williams the daughter, of said' J. A. Williams, and have each sustained pecuniary loss by reason of the death of the said J. A. Williams, then I charge you that your verdict must be for said plaintiffs.”

That charge is assailed through the second and third assignments of error, as formulated into one proposition thereunder, on the ground that it submitted an issue to the jury as to whether or not it was the duty of the deceased engineer to obey the order of the conductor to move the train, when the uncontroverted evidence showed that the train order was superior to the order of the conductor. When train 83, on which deceased was the engineer, reached Tangle-wood, a station on the line of appellant, and had remained there 15 minutes, the engineer was ordered by the conductor to proceed to Lexington, a station south of Tanglewood, and he obeyed the order; and just before he reached Lexington he collided with another freight train, No. 82, going north, and was killed. It seems that at Rockdale, a station north of Tanglewood, the conductor and engineer each received an order. If the conductor ever read his, the evidence fails to disclose it. The engineer read his aloud in the hearing of the conductor, as follows: “No. 51, engine 40, will wait at Lexington until 10:05 a. m. for No. 82, engine 159. No. 82, engine 159, will wait at Lexington until 10:25 a. m. for No. 83, engine 119.” Train 83 was the one being run by the deceased engineer, and train 82 the one with which he collided. The conductor read the order received by the engineer at the same time he was reading it, and did not detect that it was read incorrectly. He stated: “He had a copy just like I had a copy, and I knew it because he read it to me, and I was looking over his shoulder at the time he read it.” The conductor told Overly, a brakeman, that his train was to proceed to Tanglewood and back in for No. 51, and would proceed to Lexington for 82.. “I told him they would wait there for us until 10:25.” The conductor stated that his order was the same as that of the engineer, and yet it does not appear that he ever read his order, and, when questioned on the subject, it was clear that his statement that the two orders were the same was because both were carbon copies. On being pressed on the subject, he said: “I mean when I state that, that this is the usual course, I mean carbon copies, that that is the usual way of doing it; I don’t know about this particular one.” He could well state that he did not know about this order, because in that one order IVas included orders to three different conductors and three different engineers, six in number, and, though it was within the power of appellant alone to show it, no effort was made to prove that all six copies were made at once from the same original. Appellant introduced no evidence whatever as to the contents of the order issued to the six men, except what it gathered from the conductor who is not shown to have ever read the order obtained by him. The circumstances tend to .show that he did not read his copy of the order, but only read the copy given to the engineer. From that order he and the engineer obtained the conviction that their train was to meet No. 82 at Lexington, and the jnry could well find that the order given to the engineer read to that effect. It would he a singular coincidence that both the conductor and engineer should read the order as ordering them to go to Lexington to meet No. 82, when it was to meet that train at Tanglewood. What became of the order to the conductor or the one to the engineer does not appear, and while we may infer that a certain order was presented to Moffett, the conductor, while he was testifying, where it came from or by whom it was signed and issued was not shown. If any of the orders were signed by the assistant superintendent of transportation, whose orders, according to rule 492, should be obeyed by enginemen, the evidence failed to indicate it.

Under the facts indicated, the jury could well find that the order given to the engineer of train No. 83 required him to meet train No. 82 at Lexington, and under those circumstances, in compliance with appellant’s rules, the engineer could only move the train under the orders of the conductor while at Tanglewood, and it was his duty to. obey those orders. There was ample evidence to raise the issue as to whether the engineer was not justified in moving the train under the orders of the conductor, and the second and third assignments are overruled.

If the order given the conductor was, as stated by him, like one that was shown him, it was different from the one given the engineer, and the conductor was guilty of negligence in ordering the train to leave Tanglewood. It was his duty to read his orders, and then read them to other em-ployés on the train. He seems to have read only the order given to the engineer, and he afterwards told a brakeman that it gave train 83 until 10:25 a. m. to get to Lexington, and the engineer told his fireman that he had until 10:25 to make Lexington. The engineer was justified in obeying the orders of the conductor.

The order introduced in evidence by appellant was not really addressed to train 83, but, in addition to mixing it with an order to train 51, it ordered train 82 to remain at •Tanglewood until 10:25 a. m. for S3. The order was in direct violation of a rule of appellant which it introduced in evidence, and which provided that train orders should “contain neither information nor instruction not essential to such movements.” The train order was confusing in this case because, as testified by Moffett, “there was not connection between the running time of train No. 51 referred to in the order and train No. 83.” The order was not shown to have been “issued by authority and over the signature of the assistant superintendent of transportation,” as required by appellant’s rule, nor was it shown to have been signed by any one. Appellant gave no information as to the order, although it had information in its possession as to what was contained in the original orders given the three trains, and the train order introduced by it was in no manner identified or verified by it as the one received by the dead engineer. If only one order was written in the office of the assistant superintendent, and all the orders received by the different trains concerned were carbon copies of that order, it could have shown it. But it was silent, and did not choose to let in the light on the • transaction.

There was evidence that tended to show that an order was issued to the engineer of train 83, commanding him to pass train 82 at Lexington. Appellant had in its possession evidence which might have rebutted the presumption, arising from the fact that both the conductor and engineer read the order in a certain way, that it was written as read by them, and a failure to produce such testimony would strengthen such presumption. Thompson v. Shannon, 9 Tex. 536; Bailey v. Hicks, 16 Tex. 222; Chandler v. Meckling, 22 Tex. 36; Pullman Car Co. v. Nelson, 22 Tex. Civ. App. 225, 54 S. W. 624; Fant v. Sullivan, 152 S. W. 515.

The fifth and seventh assignments of error are followed by one proposition which is to the effect that, where the death of ah employé “is solely the result of his negligent act of commission,” his legal representatives cannot recover damages for his death. That is a correct proposition of law, but it is not sustained by the evidence, which showed that the death of J. A. Williams was caused by the negligence of appellant, as indicated by our conclusions of fact herein set forth.

The sixth and eighth assignments assail the verdict on, the ground of its exces-siveness. If the wife had sued alone and had obtained a verdict for $10,000, it would not have been considered excessive, nor if the little girl, nine years of age, had sued alone and recovered $15,000, would that be considered excessive for the death of a man, her father, 32 years of age, and earning from $160 to $175 a month. The verdict may appear large in the aggregate, but, considered in the light of all the evidence, this court fails to discover any evidence of passion or prejudice on the part of the jury, and it will not be disturbed.

In the argument with which the brief is closed, it is the contention of appellant that appellees had the authority to sue without joining the father and mother of the deceased as parties, and that it was unnecessary, if not erroneous, to join them in the suit. Reasoning from appellant’s premises, no one could be injured but the parents, and we fail to comprehend its concern about that matter. It does not contend that it was injured by the joinder, and it has no right to be presenting what it may deem errors for parties with which it has no connection.

The court presented the issue of comparative negligence, as defined by tbe law of 1909, and no complaint is made of that charge. The jury evidently concluded that J. A. Williams was not guilty of any negligence contributing to his death, and there is evidence to justify that finding.

The judgment is affirmed.


author: RAINEY, C. J.

text:
    FALLEN et al. v. WEATHERFORD et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 21, 1913.)
    1. Appeal and Error (§ 704) — Conclusions op Fact — Collusiveness.
    The conclusions of fact by the trial court are conclusive in the absence of a statement of facts.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2900, 2939-2941; Dec. Dig. § TOá.]
    2. Reformation of Instruments (§ 13) — Grounds — Mutual Mistake.
    _A deed which, by mutual mistake of the parties, conveys the entire tract, while intended by the parties to convey only an undivided half interest, will be reformed so as to express the intention of the parties.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §,§ 42-60; Dec. Dig. § 13.]
    3. Execution (§ 53) — Property Subject to —Undivided Interest in Real Estate.
    Where an' owner of land incumbered by a vendor’s lien agreed to convey an undivided half interest to the grantee, who agreed.to pay a specified price and a half of the incumbrance, and by mutual mistake of the parties the entire tract was conveyed, the undivided half interest retained by the owner was subject to execution and sale, and a purchaser at an execution sale acquired an undivided half interest subject to the incumbrance, and subject to the contract between the owner and grantee requiring each to pay one-half,of the incumbrance.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 121, 129, 130; Dec. Dig. §53.]
    4. Subrogation (§ 17) — Junior Lienors— : Payment of Senior Incumbrance — Rights Acquired.
    One who acquired the vendor’s lien notes given by the purchaser of an undivided half interest in land incumbered by prior vendor’s lien notes which were acquired by the administrator of the deceased purchaser acting individually, and the execution purchaser of the other undivided half interest, could pay the prior vendor’s lien notes and thereby become subrogated to the liens of the notes as to the purchaser’s half interest, but not as to the undivided half interest acquired by the execution purchaser.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 44r-40, 59, 91; Dec. Dig. § 17.]
    Error to District Court, Dallas County; J. C..Roberts, Judge.
    Action by T. A. Fallen and another against C. A. Weatherford and others. There was a ■judgment for defendants, and plaintiffs bring error.
    Affirmed.
    : N. G. Turney and F. D. Cosby, both of Dallas, for plaintiffs in error. Spence, Knight, Baker & Harris, of Dallas, for defendants in error.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Plaintiffs in error, T. A. Fallen and T. N. Graham, brought this suit, as plaintiffs, in the court below to recover the title and possession of an undivided one-half of a certain tract of land, described in plaintiffs’ petition, and to cancel and correct a certain deed to said premises made by J. W. Fallen and wife to H. F. Wiles, January I, 1910, alleging that said deed was made by said Fallen and wife to Wiles in pursuance of a certain written contract, of date January 1, 1910, wherein said Fallen agreed, for the consideration stated in said contract, to convey to the said Wiles an undivided one-half of said land, but that by mutual mistake of said parties said deed drawn under and in pursuance of said contract conveyed to the said Wiles' the whole of said lands, instead of an undivided one-half of the same. Alleging the various trusts under which the said Wiles, now deceased, and those holding under him, held the said lands, and that they are now the owners of the equitable title of the said J. W. Fallen in and to said lands, and further alleging that the equitable title of said J. W. Fallen to said undivided one-half of said lands was not vendible under execution, but that the defendant Cox was claiming the title to the same by virtue of a purchase at a sale made by the sheriff of Dallas county, under an execution issued out of the county court of Ellis county. All the defendants answered in said case; trial was had before the court, waiving a jury, which resulted in a judgment against said plaintiffs and in favor of defendant Cox.

The sole question for decision in this ease is: Was the undivided one-half interest of J. W. Fallen in and to the 250 acres of land in controversy subject to levy and sale under execution against him? We think so.

There is no statement of facts in the record, but we find conclusions of fact by the trial judge, which, in the absence of a statement of facts, are conclusive and we adopt the same as the conclusions of this court, as follows:

“Conclusions of Fact.
“1. That on November 1, 1907, R. P. Henry conveyed the lands in controversy to J. W. Fallen for the recited consideration of $4,675.10, paid and to be paid as follows, viz.: $952.75 cash paid, and the execution by J. W. Fallen of five purchase-money notes, each for the sum of $744.47, payable respectively on or before the 1st days of December in the years 1908,1909,1910,1911, and 1912, each bearing 8 per cent, annual interest, and providing for 10 per cent, attorney’s fees in usual form, and secured by vendor’s lien and deed of trust on the lands, and which said notes are hereinafter called the Henry notes.
“2. That on the 1st day of January, 1910, the said J. W. Fallen and one H. F. Wiles entered into the written contract set out in plaintiff’s pleading herein, to the effect, in substance, that said Fallen and his wife should sell and convey, by good and sufficient warranty deed to the said Wiles, a one-half undivided interest in the said lands at the agreed price of $30 per acre, it being stipulated that the amount of the land conveyed by said contract is 125 acres of land by actual measurement; that the total consideration for the 125 acres is $3,750, paid and to be paid as follows, viz.: $S95.87 cash, or its equivalent, in hand paid, and by the agreement of Wiles to pay one-half of the amount of the indebtedness then existing on said lands, evidenced by the Henry notes above mentioned, said one-half of such indebtedness being on that date, as recited, $1,861.17. Each party to the contract agreeing to pay his one-half of said lien indebtedness at maturity. And the remainder of the purchase money is evidenced by the execution by Wiles to Fallen of three vendor’s lien notes of that date for the sum of $331 each, bearing interest at 8 per cent, from date, and payable respectively on the 1st days of Decenmer 1912, 1913, and 1914, hereinafter called the Wiles notes. The said contract further provides for the farming of the said lands by the parties to said contract, and provides how the proceeds derived therefrom shall be divided between them, and provides that the said contract is to remain in force and effect for five years, with no division of the land until the end of that time, at which time, if the contracting parties so desire, they may sell one to the other, or mutually divide the entire tract between them equally.
“3. That pursuant to the terms of this contract a deed of conveyance was on the same date, to wit, January 1, 1910, executed by J. W. Fallen and wife to H. P. Wiles, but by mutual mistake of the parties thereto, and by clerical error, this deed, instead of conveying only the undivided one-half interest in said lands to Wiles, as was intended by all the parties, purported to convey the entire title of the lands to Wiles, but Wiles never claimed any but a half interest in the land, and Fallen always claimed the other half interest in the land up to the time of his sale thereof to the plaintiffs, and the court finds, as stated, that the deed was really intended by all parties thereto to convey only the undivided one-half interest in the lands to Wiles, for the consideration therein recited, which is the same consideration mentioned in the written contract between' the parties, which was a part of the same transaction with the making of the deed; said deed retained a vendor’s lien to secure the payment of the notes described therein. And J. W. Fallen and H. F. Wiles,.up to the time of the latter’s death, mutually participated in the management of the farm as provided in the contract between them.
■ “4. That said H. F. Wiles died intestate, in Dallas county, Tex., on the-day of May, 1911, and defendant C. A. Weatherford thereafterward was appointed and qualified as administrator of his estate in the county court of Dallas county, Tex., a court of competent jurisdiction, and is now acting as such administrator. That the said H. F. Wiles left surviving him, his widow, the defendant Mrs. H. F. Wiles, and he left as his sole heirs at law, their children, to wit: Nina D. Wiles, Herman O. Wiles, J. P. Wiles, and Cora M. Wiles; said children being minors.
“5. That subsequent to the death of Wiles-the plaintiffs herein' purchased, and now own, the Wiles notes with their liens. That plaintiffs have not tendered, and do not now tender, payment of the ‘Henry notes.’
“6. That subsequent to the death of Wiles, the defendants A. E. Cox and C. A. Weather-ford (the latter acting individually and not as administrator) purchased from R. P. Henry, for full value, and now own the said Henry notes, with all the liens, rights, and titles in and to the said lands, securing the same. This purchase of said notes having been completed, and the liens transferred to them by Henry, on the 31st day of December, 1911.
“7. That the said Henry notes have been presented to O. A. Weatherford, administrator of the estate of PI. F. Wiles, deceased, for allowance to the extent of one-half thereof, upon Wiles’ assumption of their payment to that extent, and the claim has been allowed and approved by the probate court, in the administration of the Wiles estate, and the claim classified as a third-class claim. This claim was so presented by R. P. Henry, and allowed by the administrator, and approved by the court, before his sale of the said notes to Cox and Weatherford, and the said ‘Wiles notes’ ■ have been duly presented by the plaintiffs to said administrator, as a claim against the estate^ of H. F. Wiles, deceased, and have been allowed and approved by th.e probate court as a claim of the third class against the Wiles estate.
“8. That heretofore, on July 3, 1911, I. Jolesch & Co. obtained a judgment against said J. W. Fallen in county court of Ellis county, Text, a court of competent jurisdiction, for the principal sum of $412.14, with interest from that date at 10 per cent, per annum, and together with all costs of suit, for which execution was awarded; and pursuant to such judgment, orginal execution was issued to the proper officer of Ellis county, Tex.,-and was by the officer who received the same returned nulla bona, and thereafter, in due course, an alias execution was issued on said judgment, addressed to the proper officers of Dallas county, Tex., and was placed in the hands of the -sheriff of Dallas county, Tex., who levied by virtue thereof, upon all the right, title, and interest of J. W. Fallen in and to the lands here in controversy, on the -17th day of October, 19Í1, at 3 o’clock p. m., and, after due advertisement as required by law, and pursuant to such levy and seizure, the said sheriff sold all of the property so levied upon at public outcry at the courthouse door of Dallas county, Tex., on the November sale day, 1911, at which sale the defendant A. E. Oox was the highest and best bidder and the property was struck off to him; that he paid the amount of his bid, to wit, $2,200, to the sheriff, and thereupon the said officer executed a proper sheriff’s deed to the said A. E. Oox, thereby conveying to him all the right, title, and interest of J. W. Fallen in and to the lands in controversy. This sheriff’s sale was made on the 7th day of November, 1911, within legal hours, and the sheriff’s deed to the said A. E. Oox was executed on the same day, and was filed for record in-the office of the county clerk of Dallas county, Tex., on the 7th day of November, 1911, at 4:30 o’clock p. m. of said day, and was thereafter duly recorded.
“9. That thereafter, and on the Sth day of November, 1911, the said J. W. Fallen executed to the plaintiffs herein a deed, the consideration in which is recited as follows: $1,845.96, besides the further sum of $871.25 to me paid by T. A. Fallen and T. N. Graham, respectively, as follows: Of the extin-guishment of my note for $925 to said T. A. Fallen, or order, dated April 8, 1905, due January 1, 1906, with 6 per cent, per annum from maturity, with credits, and of my note to him for $507.89, dated January 1, 1911, with interest from date at 10 per cent, per annum, and my note to order of said Graham, of June 1, 1911, for $S50 with interest thereon at 6 per cent. And the property purporting to be conveyed is as follows:. ‘All that certain right, title, interest and claim which I have in and to that land which was described in, and conveyed by, that certain deed executed by myself and my wife to H. F. Wiles, dated Januau-y 1, Í910, recorded in Book 526, page 5, Deed Records of said county, made part hereof; and I intend this to be an assignment and conveyance of all said right, title, interest and claim which arose out of my having, by mistake in the drawing of said deed, conveyed all right,'title, interest and claim in said land, in its then equitable condition, instead of only one-half thereof, according to the terms of the contract, said mistake being mutual between grantors and grantee in said deed.’ This deed was dated and acknowledged November 8, 1911, and filed for record on the same date in the office of the county clerk of Dallas county, Tex., and thereafter duly recorded.”

We find no error in the conclusions of law of the lower court, and adopt the same as the conclusions of this court.

“Conclusions of Daw.
“I therefore conclude that as a matter of law, based upon the above findings and conclusions of fact:
“1. That the deed of date January 1, 1910, from J. W. Fallen and wife to H. F. Wiles, as a matter of fact and truth conveyed only an undivided one-half interest in the said lands to H. F. Wiles, and that such deed should be now by this court so reformed as to make it speak the truth and express the real intention of the parties thereto.
“2. That J. W. Fallen retained the title of an undivided one-half interest in said lands (subject only to the R. P. Henry notes and subject to his agreement with. H. F. Wiles, of date January 1, 1910) up to the time of the sheriff’s said levy and sale thereof to the defendant A. E. Cox.
“3. That J. W. Fallen had said interest in said lands at the date of the sheriff’s levy and sale thereof, and that such interest was subject to the execution, levy, and sale against J. W. Fallen, and that the sheriff’s deed to Cox conveyed the said interest in said lands to the purchaser, A. E. Cox, who now owns and holds the same, namely, the undivided one-half interest in the lands in controversy, subject only to the lien of the Henry notes, and subject to that portion of the contract between Fallen and Wiles in which it provides that each of them shall pay one-half of said Henry notes.
“4. That plaintiffs have the right to pay off the Henry notes as they own the second vendor’s lien on the Wiles’ undivided one-half of the land in controversy, and as A. E. Cox, the owner of the other undivided one-half of said lands offers herein to receive payment of his one-half of said notes, but that as plaintiffs have not made actual tender of such payment of said notes, that if payment is made by them, they would not be entitled to be subrogated to any of the liens securing said notes upon the A. E. Cox undivided half interest in the land, but would be subrogated to the liens of said notes as to the Wiles one-half interest therein. That the purported deed from J. W. Fallen to the plaintiffs herein, of date November 8, 1911, conveyed nothing to the plaintiffs.
“5. That judgment and decree should, therefore, be entered reforming said deed from J. W. Fallen and wife to H. F. Wiles, so as to make it speak the true intention of the parties, as aforesaid, and judgment should be entered 'in behalf of A. E: Cox for the undivided one-half of the lands in controversy, incumbered only as aforesaid, and that plaintiffs take nothing against the said A. E. Cox.
“6. And that the plaintiffs take nothing against A. EL Cox and C. A. Weatherford, either individually or as administrator, on their claims for rents.
“7. That all costs herein, including fee to John W. George, heretofore appointed guardian ad litem to represent the minor defendants herein, in the sum of $100, be taxed and adjudged against the plaintiffs; except the costs of filing the original petition, issuing and service of citation thereof on C. A. Weatherford, administrator, and the stenographer’s fee, and entry of final judgment, which shall be taxed against C. A. Weather-ford, administrator,"

The judgment is affirmed.


author: WILLSON, C. J.

text:
    NATIONAL SURETY CO. v. AMERICAN COMPOUND DOOR CO.
    (Court of Civil Appeals of Texas. Texarkana.
    June 26, 1913.
    Rehearing Denied July 5, 1913.)
    1. Depositions (§ 81) — Return fob Proper Certificate — Jurisdiction of Court.
    The court may return a deposition to the officer in a sister state taking- it to enable him to make his certificate attached thereto conform to the facts and the law.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 213-217; Dec. Dig. § 81.]
    2. Contracts (§ 231) — Building Contracts —Surety—Liability to Materialman.
    Where a surety of a building contractor, acting through its authorized agent, induced a materialman, contracting with the contractor to furnish materials, to ship the materials by agreeing with the materialman’s agent to pay therefor out of money the surety was entitled to receive on the contractor’s account, and the materialman shipped the material in reliance thereon, the surety receiving more than sufficient to pay for the materials was liable therefor.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1046, 1047, 1051, 1052; Dec. Dig. § 231.]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Action by the American Compound Door Company against the National Surety Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    One Balfanz undertook to furnish material for and to construct an office building in San Angelo. By the terms of the contract between the owner of the building and Bal-fanz, the former was to pay the latter $87,820.50 in instalments as follows (quoting): “Eighty-five per centum of cost of labor and material incorporated in the work upon estimates issued by the architects, and the balance of 15 per centum to be paid at the entire completion and acceptance of the work.” The estimates referred to were to be made every two weeks. Appellant was surety on a bond for $20,000 made by Bal-fanz to secure the performance of his undertaking under the contract. Balfanz, having commenced the construction of the building, was unable, for lack of means, to complete it. Thereupon, to wit, on July 21, 1910, appellant supplied means necessary to enable Balfanz to continue the work on the building and took from him an assignment of the sums to become due to him on the estimates to be made by the architects. Before this time, to wit, on June 10, 1910, Balfanz and appellee had entered into a contract whereby the latter undertook to ship from its factory in Chicago, Ill., to the former at San Angelo, Tex., on July 25, 1910, certain doors to be used in the construction of said building, and whereby Balfanz undertook to pay ap-pellee for said doors, within 30 days after they were so shipped, the sum of $1,254.54. Before the time to ship the doors arrived, appellee learned that Balfanz was in failing circumstances financially and refused to ship the doors to him unless an arrangement satisfactory to it was made covering the payment of the sum Balfanz had agreed to pay therefor. Having received a telegram from Balfanz in regard to the matter, W. F. Robertson, who was the local attorney of appellant in Dallas, on August 18, 1910, called up F. H. Dukes, who was the sales agent of appellee in Dallas, over the telephone and had a conversation with him as follows '(quoting from Robertson’s testimony in the record): “I told him that I had received a telegram from Mr. Balfanz to the effect that he had declined to ship him some material that he had contracted to furnish Balfanz, and he stated that he had. I then told him that I was representing the National Surety Company, who was on Balfanz’s bond, and that I had made arrangements with Mr. Balfanz by which I was to receive for him all the money that was paid him under this contract by the owners of the building, and that if he would ship his material to Mr. Balfanz at once, as was needing, I would see that he got his money out of the next estimate; half of it to be paid on the 20th, and the balance out of the next estimate, which should be paid on September 3d. These estimates were to be made every two weeks. He asked me to send him a written memorandum of this agreement, and said that he would have the goods shipped,, and I immediately turned around and dictated a letter there to the stenographer, and mailed it that day.” The letter the witness referred to was as follows:
    “Address reply to:
    “A. H. Sayers, Adjuster.
    “311 Praetorian Bldg.,
    “Dallas, Texas.
    “National Surety Company, New York.
    “Southwestern Claim Department, Texas, Louisiana, Okla., N. Mex., and Arizona.
    “Dallas, Texas. Aug. 18, 1910.
    “Re Bond #461001-August Balfanz.
    “Mr. F. H. Dukes, 149 So. Akard St., Dallas, Texas.
    “Dear Sir: Referring to our conversation over the phone to-day relative to the August Balfanz contract for bank and office building at San Angelo, beg to say that if you will have the material you were to furnish him shipped at once to San Angelo, I will see that you get one-half the amount of your bill out of the first estimate due him which should be paid on the 20th inst., and the balance of your bill in the next estimate which should be due on Sept. 3d.
    “As the representative of the National Surety Company, I will receive all amounts due Balfanz under this contract and see to the payment of the bills due by him for material and labor.
    “I hope this will be sufficient to secure immediate shipment by you of the material needed by Balfanz.
    “Tours very truly,
    “[Signed] William F. Robertson,
    “Attorney for Nat’l Surety Co.”
    August 22, 1910, Dukes wrote Robertson as follows:
    “F. H. Dukes, Manufacturers’ Agent.
    “Dallas, Texas. Aug. 22, 1910.
    (On left-hand margin of letter is the following:)
    “State Sales Agent 'for the Hydraulic-Press Brick Companies, Manufacturers of Face Bricks All Colors, Plain, Ornamental, Enamel Brick, All Kinds Mortar Colors. , “The Atlanta Terra Cotta Company. Structural Terra Cotta. Mound City Roofing Tile Co. Estimates Given on Tile Laid. The American Compound Door Company. “Mr. William F. Robertson,
    “Attorney for the National Surety Co.,
    “Prsstorian Building, Dallas, Texas.
    “Dear Sir: I am just in receipt of a wire from the American Compound Door Company in which they state that they will ship the doors to Mr. Balfanz on Wednesday, August twenty-fourth. I have asked them to have the shipment traced as he is in a hurry for them.
    “Tours very truly,
    “[Signed] F. H. Dukes, Agent.”
    And on the next day Robertson replied as follows:
    “National Surety Company, New Tork.
    “Dallas, Texas. Aug. 23, 1910.
    “Re Bond #468001, August Balfanz. Claim #3570.
    “Mr. F. H. Dukes, 149 S. Akard St., Dallas, Texas.
    “Dear Sir: Replying to yours of the 22d inst., relative to the shipment made by the American Compound Door Company to Mr. Balfanz, will say, that I hope the material will be rushed forward as rapidly as possible, as it will be needed within the next day or two. I have made arrangements to take care of the bill according to our agreement the other day.
    “Tours very truly,
    “[Signed] W. F. Robertson, Attorney.”
    The doors were duly shipped by appellee on August 24, 1910, and were afterwards received by Balfanz and used by him in the building.
    It was shown that over $2,000 was paid to Robertson on the estimate of August 20th; that over $1,000 was paid to him on the estimate of September 3d; and that after August 18th, the date of his letter to Dukes, and before October 31st, about $16,000 was paid to him on estimates made by the architects. And it was further shown that he paid to appellee only $250 of the sums he had received for Balfanz on the estimates, and that the remainder of the, sum Balfanz had agreed to pay appellee for the doors had never been paid.
    Appellee’s suit was against appellant to recover .$1,254.54, the sum Balfanz had agreed to pay for the doors, less the $250 paid to it by Robertson out of the sums received by him for Balfanz on estimates made by the architects. The appeal is from a judgment in appellee’s favor for the.sum of $914.54 and interest thereon from September 24, 1910.
    C. F. Greenwood and Wm. F. Robertson, both of Dallas, for appellant. Locke & Locke, of Dallas, for appellee.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

(after' stating the facts as above). The deposition of appellee’s witness Charles H. Sibley was taken in Chicago, Ill. After same had been returned to the court below and filed with the papers in the case, and after same had been opened as provided for by the statute, in accordance with an order of said court it was sent by the clerk to the officer who took it in order that he might make his certificate attached thereto conform to the facts and the requirements of the law. This having been done, the deposition was returned by that officer to said court in precisely the same condition, in other respects, it was in when the clerk sent it to him. On the ground that the court was without'power to authorize the deposition to be sent out of the state for such a purpose, appellant moved to quash same and assigns as error the action of the court in overruling its motion. We think the court possessed the authority he assumed to exercise, and that his action in exercising it was not erroneous. Gray v. Phillips, 54 Tex. Civ. App. 148, 117 S. W. 878.

It is insisted that appellee “did not allege,” quoting from the brief, “and did not prove that there was a contract between plaintiff and defendant, whereby defendant was to pay plaintiff any sum of money on account of the sale and delivery of certain materials by plaintiff to one August Balfanz; but it appeared from a preponderance of the evidence that, if there was any agreement or contract in respect to the payment of any money on account of the sale and delivery of certain materials to August Bal-fanz, said agreement was between said Robertson and one F. H. Dukes, acting for himself as said Robertson understood, and not- an agreement in behalf of this defendant to pay plaintiff any money, but was only an agreement by which said Robertson was to act as distributor of certain money due and to become due said Balfanz among his creditors, and was not an independent primary obligation on the part of this defendant to pay plaintiff any 'sum of money whatsoever.” As we understand the record, appellee not only alleged in its petition, but by testimony conclusively proved, that appellant, acting by Robertson, its duly authorized agent, to induce appellee to ship the doors, undertook, through Dukes, appellee’s agent, to pay it therefor out of money appellant was entitled to receive on Balfanz’s account August 20th and September 3d; that appellee, relying on said undertaking, delivered the doors to Balfanz; and that appellant, notwithstanding it received on Bal-fanz’s account sums of money more than sufficient to pay appellee for the doors, paid to it only $250 of the purchase price thereof and failed to pay the remainder thereof, to wit, the sum of $914.54. On such pleading and proof the court might very well have peremptorily instructed the jury to find for appellee.

The judgment will be affirmed, but without damages, on the ground that the appeal is for delay. While we think no one of the assignments presents a reason for reversing the judgment, we do not agree with appellee that the appeal should be treated as one for delay only.'


text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. EVANS.
    (Court of Civil Appeals of Texas. Texarkana.
    June 26, 1913.)
    1.Railroads (§ 305) — Highways—Crossings — Restoration oe Highway — Injuries to Travelers — Negligence.
    Const, art. 10, § 1, and Rev. Civ. St. 1911, arts. 6481, 6485, provide that any railroad corporation may construct its road across any highway intersected thereby, but shall restore the highway to its former state, or to such a state as not unnecessarily to impair its usefulness, and shall keep such crossing in repair. Defendant railroad company, in raising its tracks over a highway on the morning of the injury, had removed the dirt between the ties at the crossing, and made an embankment 18 inches high on the side of the track over the highway. On each side of the traveled part of the road the track had been surfaced up by putting gravel under and between the ties, but at the time plaintiff attempted to lead his horse across the tracks nothing had been done to restore the traveled part of the road to its former state, and while plaintiff was attempting at the suggestion of defendant’s foreman to lead his horse and buggy over the tracks the horse became, frightened by his feet slipping into the spaces between the ties and ran away, causing plaintiff’s injuries. Held, that defendant’s failure to provide a crossing on either side of the traveled part of the road for the temporary use of the public until the road had been restored, as it could have done, constituted actionable negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 968-971; . Dee. Dig. § 305.]
    2. Railroads (§ 350) — Unprotected Crossing-Injuries to Travelers — Contributory Negligence — Question por Jury.
    Plaintiff, in attempting to lead his horse oyer the tracks in accordance with the suggestion of defendant’s foreman in charge of the work, was not negligent, as a matter of law, in attempting to traverse the crossing instead of traveling about a mile further to another crossing,, where he could have crossed in safety.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    3. Trial (§ 251) — Instructions — Application to Pleading.
    Where, in an action for injuries to plaintiff while leading his horse over a defective highway crossing over defendant’s railroad at the suggestion of defendant’s foreman in'charge of construction work going on at the crossing, the- petition counted on the railroad company’s negligence in failing to provide a safe crossing, and did not allege as a ground for recovery the negligence of the foreman in inviting plaintiff to cross and informing him that he could cross in safety, an instruction that the jury should find for plaintiff if they believed defendant’s foreman induced plaintiff to attempt the crossing, and, knowing the facts and circumstances of the case, he was negligent in so doing, and such negligence was the proximate cause of plaintiff’s injury, was erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    ' Appeal from District Court, Collin County; J. M. Pearson, Judge.
    Action by B. B. Evans against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    -Appellant’s line of railway in Collin county, running north and south, crossed a public road running each and west. In 1910, in reconstructing or repairing its track across said road, appellant raised same eight inches higher than it was before. To do this the dirt between the ties was taken out and thrown to the south side of the track, making an embankment about 18 inches high. In attempting to lead his horse, drawing a buggy, over the embankment and across the track, appellee was injured as a result of the horse’s becoming frightened. In his petition appellee alleged that he was a mail carrier, and at the time of the accident “was on his route delivering mail, using for the purpose of carrying his mail a horse and single buggy.” He then alleged as follows: “That when he -reached the point where the defendant’s railroad crosses the public road, the agents and servants of the defendant were then present, repairing the track and roadbed on said crossing; that they had removed the dirt from between the ties and around the rails on the public road crossing, mailing it a skeleton track, and had removed all the dirt from between the ties to the depth and thickness of the ties, which was six or seven inches, and that the dirt had been piled out, forming an embankment or ridge, across the public dirt road, parallel with the railroad and something near the ends of the ties; that when, plaintiff drove up to said crossing he was directed by the agents and servants of defendant in charge of the work that it would be all right to cross over the same; that others had been crossing over the crossing that morning before, and he got out of the buggy to lead his horse across the track, and when he had gotton onto this track, he then discovered that the dirt had been removed from between the ties to such a depth, and he did not know that the hole between the ties was so deep until he and the horse were on the same, and that when he led his horse onto the skeleton track the horse became frightened, caused by the horse’s feet striking the ties on the edge and then stepping between the ties, and the buggy rolling over the embankment and onto the rails, and it frightened him, and he started to run away; that plaintiff was jerked by said horse and carried some' distance before plaintiff could safely turn him loose, and when he did turn the horse loose, he was struck by the buggy.” . As negligence on the part of appellant entitling him to recover against it, as he sought to, appellee alleged matters set out in his petition as follows: “Plaintiff shows that the defendant, acting by its authorized agents and servants, negligently and carelessly permitted the said public highway to remain in such condition to be unfit to cross the same with safety, and that said agents and servants were guilty of negligence in removing all of the dirt from every part of the crossing at the same time, and in not leaving some portion open and accessible for persons to cross same. Plaintiff shows that said defendant, acting by its agents and servants, was guilty of negligence in digging out the dirt between all the ties, and forming the ridge across the public road, as aforesaid, and in permitting the same to remain in that condition, all of which was unnecessary, and rendering the same dangerous and hazardous; that plaintiff in approaching said crossing was carrying the mail, and he had no other route to go, and no other way to cross the road, except at this point, and that, relying upon the representation of the foreman in charge of the work that persons could safely cross the same, he undertook to cross over the road, and was on the crossing before he knew the dangerous condition of the .same, all of which was the proximate cause of the frightening of his horse, which resulted in the injury to plaintiff.” The appeal is from a judgment in appellee’s favor for $2,750.
    Head, Smith, Hare & Head, of Sherman, for appellant. B. Q. Evans, of Greeneville, and L. 0. Clifton, of McKinney, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, C. J.

(after stating the facts as abové). Appellant requested the court to instruct the jury to return a verdict in its favor, and in its first assignment complains of the refusal of the court to grant its request. In support of the assignment it is insisted that the testimony failed to show negligence on the part of appellant,' but showed “if there was any negligence causing appellee’s injuries, it was his own negligence.”

Declaring, in the language used in'section 1 of article 10 of the Constitution, that “any railroad corporation ⅜ * * shall have the right to construct and operate a railroad between any points within this state,” the statute further declares that “such corporation shall have the right to construct its road across, along, or upon * * * any * * » highway * * * which the route of said railway, shall intersect or touch; but such corporation shall restore the * *' * highway ⅜ * * thus intersected or touched to its .former state, or to such, state as not to unnecessarily impair its usefulness, and shall keep such crossing in repair.” Articles 6481 and 6485, R. S. 1911. Construing the statute, the Court of Civil Appeals of the Fifth District, in Texas Midland Ry. Co. v. Johnson, 20 Tex. Civ. App. 572, 50 S. W. 1044, said: “It was the manifest purpose of the Legislature enacting the statute to require of railroad companies constructing their roads along and across public highways to obstruct or interfere with travel over such public highways to the least degree practicable. They are required to restore it to the former state, not to unnecessarily impair its usefulness, and-to keep it in repair. We think a liberal and fair construction of that statute would require the railway company not to wholly prevent passage of travelers along the way during the time of the construction of the railroad, when their passage may practically be provided for during the time the work is going on. If a temporary turn of the highway around the work of construction may practically be provided, then that would be a duty owed by the company to the public.” In the case cited the Supreme Court refused an application for a writ of error, and so approved as correct the construction given the statute by thé Court of Civil Appeals. It appeared from the testimony that the road in question was 40 feet wide, and that the traveled part thereof was about 15 feet wide. Appellee was injured between 8:30 and 9 o’clock of a morning in March, 1910. During the afternoon of the day before appellee was injured, appellant had raised its track across the road to a point 8 inches higher than it was before, and on the morning of the accident had removed the dirt between the ties, and thrown same to the south side of its track, making an embankment about 18 inches high. On each side of the traveled part of the road appellant’s track had been “surfaced up” by putting gravel under and between the ties, but at the time appellee attempted to cross the track over the traveled part of the road nothing had been done towards restoring said traveled part to its. former state.

There was testimony from which the jury might have found that appellant could easily have constructed a crossing over its track on either side of the traveled part of the road, for the use of the public, until it restored said traveled part to its former state. If it might have constructed such a crossing and did not, and so violated a duty it owed to appellee as one of the general public, it cannot be said there was no evidence warranting a finding by the jury that it was guilty of negligence. It is clear, therefore, that the court did not err in refusing to instruct the jury as requested by appellant, unless it was true, as asserted by appellant, that it conclusively appeared that appellee himself was guilty of negligence which contributed to cause the accident which resulted in the injury he suffered. Appellant’s insistence in this respect is based on testimony showing that appellee knew, or should have known, the condition of the crossing before he attempted to go over it, and yet chosé to use it, when by traveling about a mile further he could have safely crossed. the track at another crossing maintained by appellant. As announced by the Supreme Court in Railway Co. v. Gasscamp, 69 Tex. 545, 7 S. W. 227, the law seems to be against appellant’s contention. In that case it appeared that the bridge the plaintiff attempted to cross was in a dangerous condition, and that he knew it; but it also appeared that it was being fised by the public, and that it was a part of the only public road between the plaintiff’s home and the city of Brenham, where he was going at the time of the accident. The court held it could not be said, as a matter of law, that the plaintiff was guilty of contributory negligence, and declared the law to be that if a traveler has “no other convenient way, the mere fact that he takes the chances of a known danger and attempts a passage is not controlling proof of his negligence. Whether the act be negligent or not depends upon the circumstances attending it; and the question is for the determination of the jury.”

Appellee testified: “As I approached that crossing I stopped before I got to the crossing and had a conversation with a man they called the straw boss, who was in charge of those men working there at the time. ⅜ * * This foreman or straw boss told me that the track was a little rough, but there was a wagon crossed just before, and I could make it all right, to get out and lead across.” In his charge the court told the jury, other conditions coneuning, to find for appellee if they believed appellant’s foreman so stated to appellee; that the latter relied on the statement, and further believed, quoting, “that the defendant company and the foreman of its repairing crew in making the statement to the plaintiff which induced plaintiff to attempt the crossing, if it did, was, under all the facts and circumstances of the case, guilty of negligence as that word has been heretofore defined, and that such negligence, if any, was the direct and proximate cause of plaintiff’s injury.” Appellant insists that the instruction was erroneous because appellee had not alleged the conduct of its foreman to be negligence on its part. The contention must be sustained. The allegations in the petition as to the conduct of the foreman, as is shown in the statement above, were not made for the purpose of charging appellant with negligence, but for the purpose of negativing negligence on the part of appellee in attempting, as he did, to go over the crossing. Therefore the instruction was erroneous, for it is well settled that a charge should not authorize a finding of liability on grounds not pleaded. Railway Co. v. Vieno. 26 S. W. 230; Sanches v. Ry. Co., 88 Tex. 117, 30 S. W. 431; Railway Co. v. French, 86 Tex. 98, 23 S. W. 642; Loving v. Dixon, 56 Tex. 75; Railway Co. v. Silegman, 23 S. W. 300.

The rulings made in effect dispose of all the assignments.

For the error pointed out in the charge, the judgment will be reversed, and the cause will be remanded for a new trial.


author: SPEER, J.

text:
    FT. WORTH BELT RY. CO. et al. v. PERRYMAN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 26, 1913.
    Rehearing Denied May 31, 1913.)
    1. Appeal and Error (§ 773) — Dismissal of Appeal — Want of Prosecution — Briefs —Failure to File.
    Where no briefs are filed in the Court of Civil Appeals, the appeal will be dismissed for want of prosecution.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.]
    2. Appeal and Error (§ 1070) — Harmless Error — Verdict.
    Where, in an' action for tort against two defendants, the jury, without authority, attempted to apportion the amount allowed plaintiff between defendants, but the court in entering the judgment disregarded such apportionment and decreed their recovery jointly and severally for the full sum against both defendants, the error in the verdict was immaterial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dee. Dig. § 1070.]
    3. Trial (§ 329) — Verdict—Issues — Determination.
    Where, in an action for injuries to an employe of S. & Co. against it and a railroad company, each defendant denied liability and pleaded by way of cross-action for judgment over against the other in the event plaintiff had judgment against it, a general verdict for plaintiff against both failing to dispose of the cross-pleas was erroneous, and could not be supported on the theory that the jury, having found the railroad company liable on the ground of its own negligence, necessarily could not find it entitled to recover over against S. & Co.
    [Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. § 329.]
    4. Appeal and Error (§ 80)—Final Judgment—Defective Verdict.
    Where a judgment appealed from was final in form, it was reviewable, notwithstanding it was based on a verdict which was defective in that it failed to dispose of' certain cross-pleas filed by the defendants.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.]
    5. Master and Servant (§ 87)—Federal Employer’s Liability Act—Application— Evidence.
    Evidence that an employs of a business corporation was engaged in interstate commerce at the time he was injured was inadmissible to establish a cause of action under the federal Employer’s Liability Act (Act Feb. 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), since such act applies only to em-ployés of railroads.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 138; Dec. Dig. § 87.]’
    Appeal from District Court, Tarrant County ; R. H. Buck, Judge.
    Action by C. L. Perryman against the Ft. Worth Belt Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed in part, and reversed and remanded in part.
    Lassiter, Harrison & Rowland and H. M. Chapman, all of Ft. Worth, for appellants. Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellee.

       For other cases see same topic and section NUMBER in Dec. Dig. ,⅞ Ain. Dig. Key-No. Series & Rep’r Indexes

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

C. L. Perryman instituted this suit against the Ft. Worth Belt Railway Company and Swift & Co. to recover damages for personal injuries received by him while engaged in making certain repairs to the passageway or vestibule of a doorway in one of the buildings owned and occupied by Swift & Co., whose employs he' was. Appel-lee received his injuries through the negligence of the defendants in causing a string of cars to be moved while he was thus engaged at his work. Each defendant answered denying liability, and each pleaded by way of cross-action over against the other for judgment in the event plaintiff had judgment against it. There was a verdict and judgment for the plaintiff, and both defendants have appealed.

The appeal of Swift & Co. is dismissed for want of prosecution, since no briefs have been filed in this court. Rule 39, 142 S. W. xiii.

The Ft. Worth Belt Railway Company, hereafter called appellant, first complains that the verdict of the jury is unauthorized by the law as given in charge by the court in that the jury had no authority to apportion the damages. The verdict is as follows: “We, the jury, find for the plaintiff in the sum of $2,750 as follows: $1,833½ against the Ft. Worth Belt Railway Company, and $916% against Swift & Co.” True, the charge in no manner authorized such apportionment; but the court in entering judgment disregarded this and decreed a recovery jointly and severally for the full sum of $2,750, so that, if there was technical error as insisted by the assignment, it is not carried into the judgment of which no complaint is made. Moreover, if error at all it appears to be in appellant’s favor.

It will be seen that the verdict did not expressly dispose of the cross-pleas filed by the defendants, and this is made the basis of complaint for appellant’s second and third assignment of error. Appellee answers that the verdict, when construed in the light of the charge as it must be necessarily, does dispose of these pleas. Following is the charge as it affects the cross-plea of this appellant:

“If you find and believe from the evidence that the defendants Swift & Co. and Ft. Worth Belt Railway Company are both liable herein, and you further find and believe that in making the movements of the cars that were moved that said defendant Ft. Worth Belt Railway Company and its employés were directed to make or cause to be made such movements of said cars by the yardmaster of Swift & Co., if such be the case, and that it was customary and had so been the custom between these two companies at the time of said accident and prior thereto that when said Belt Railway Company was requested to come in and make certain movements of cars in said yards of the defendant Swift & Co. that the defendant Swift & Co., through its yardmaster or other agents, would notify its employSs of any danger likely to arise from said movement of said cars, and warn them, and have them removed from the proximity of said danger, and you further find and believe that they failed to do'so on this occasion, and that such failure, if any, was the direct and proximate cause of the injuries, if any, inflicted upon the plaintiff, and you further find and believe that a reasonably and ordinarily prudent person would have relied upon such custom and agreement, if any existed between said defendant Swift & Co. and said defendant Ft. Worth Belt Railway Company, as above mentioned, then such verdict, if any, as you find against the Ft. Worth Belt Railway Company you will also find in favor of said Ft. Worth Belt Railway Company against said defendant Swift & Co.”

The contention of appellee is that, having found this appellant liable upon the ground of its negligence necessarily under the charge quoted, it would not be entitled to recover over against its codefendant. But this is not true, for this appellant might be held liable to the appellee’s suit for its negligence in injuring him, and yet by reason of the superior or active negligence of its codefendant as submitted in the above charge be entitled to judgment over against it. Tlie verdict is fatally defective in not disposing of this issue.

The judgment as already stated, however, is final in form, and we have jurisdiction to revise it. It is apparent the error affects only the rights of the two defendants, and the judgment in favor of appellee is, therefore, in all respects affirmed, while that between the appellants upon the Ft. Worth Belt Railway Company’s plea over against Swift & Co. will be reversed and remanded for another trial. Rule 62a, 149 S. W. x; F. W. & D. C. Ry. Co. v. Garlington, 41 Tex. Civ. App. 340, 92 S. W. 270.

An exception was taken by this appellant to the court’s ruling in refusing to permit it to prove that the car to which the vestibule on which appellee was at work at the time of the accident was attached was being unloaded of freight which had come to Ft. Worth from a point beyond the state of Texas, and to show, in short, that appellee at the time of the injury was engaged in interstate commerce. The ruling was right, however, since the federal Employer’s Liability Act could have no application whatever to this case in so far as it affects appellant, because appellee was in no sense an employé of this appellant; the act applying only to cases of injuries to or the death of employés of railroads. Federal Statutes Anno. Supplement 1909, p. 584 (U. S. Comp. St. Supp. 1911, p. 1322).

Affirmed in part; reversed and remanded in part.


text:
    TEXAS CENT. R. CO. v. MALLARD.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 18, 1913.)
    Appeal and Error (§ 1064) — Railroads (§ 405) — Injueies to Animals — Degree op Caee.
    In an action for killing stock, a charge that a railroad must use greater care in a city than other places, and more in some parts of the city than others, conflicts with the true rule that the care must be exercised which an ordinarily prudent person in like business would use under like circumstances, which applies to all places, and the giving of the charge was reversible error.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064 ; Railroads, Cent. Dig. §§ 1393-1398; Dec. Dig. § 405.]
    Error to Jones County Court; Joe C. Randel, Judge.
    Action by R. B. Mallard against the Texas Central Railroad Company. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded.
    See, also, 127 S. W. 1117.
    Jno. W. Woods, of Rotan, and Theodore Mack, of Ft.-Worth, for plaintiff in error. Brooks & Brooks, of Anson, for defendant in error.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

This is an action by R. B. Mallard against the Texas Central Railroad Company to recover damages for certain stock killed by the railroad company in the town of Plamlin in Jones county. There was a jury trial resulting in a verdict and judgment for the plainiiff, and the defendant has sued out a writ of error seeking to revise such judgment.

Upon the trial in the county court the following charge was given: “A railroad company running and operating its trains on the streets or in the incorporated limits of a city must use greater care and diligence to prevent injuries to persons and property than is required of them in running and operating their trains at less frequented and populous localities; and so in certain localities in the town greater precaution may be necessary than in others.” In the paragraph preceding this the trial court had properly instructed the .jury that the defendant was under the duty of exercising that degree of care and prudence which an ordinarily careful and prudent person engaged in like business would have exercised under like circumstances. The latter instruction is in direct conflict with the former, which correctly announces the rule of care applicable in such a case. It is not true that greater care and diligence must be exercised along streets or within the limits of incorporated cities than at other places. The same degree of care is required at all times and all places; that is, ordinary care. It may be and is true that the exercise of this degree of care will cause one to act differently under different circumstances according to the exigencies of the situation and this is doubtless what the trial judge had in mind when he prepared the charge. We cannot say that the error of imposing too great a burden on the defendant in this respect probably did not induce an improper judgment. The charge in other respects is not subject to the criticisms made, and other assignments presenting these criticisms are overruled.

For the error indicated, the judgment is reversed, and the cause remanded.


text:
    PATE v. VARDEMAN et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 31, 1913.)
    1. Attachment (§ 47*) — Grounds—Sale of Peopeety with Intent to Defraud.
    Where an attachment was issued on the ground that the debtor was about to dispose of his property to defraud his creditors, evidence, that when he was called on to pay his indebtedness to plaintiff in attachment he refused to do so and said he would not pay the debt at all if sued thereon, was admissible, whether such statement was communicated to plaintiff in attachment prior to his making affidavit therefor or not.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 120, 861-876; Dec. Dig. § 47.*]

      2. Attachment (§ 374)—Wrongful Attachment— ExemplaRY Damages.
    In an action for wrongful attachment on the ground that the debtor was about to dispose of his property to defraud his creditors, evidence. that he refused to pay _ on demand and said he would not pay at all if sued, was admissible on the issue of his right to recover exemplary damages.
    [Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. § 374.]
    3. Attachment (§ 364)—Wrongful Attachment-Sale of Attached Property— Consent—Right to Damages—Waiver.
    In a suit for wrongful attachment on exempt property, including a growing cotton crop on a homestead, the debtor’s consent that the attached property might be sold and the proceeds applied to the judgment recovered against him constituted a waiver of the tort arising out of the wrongful attachment, including satisfaction of the entire trespass to the homestead.
    [Ed. Note.—For other cases, see Attachment, Cent. Dig. § 1327; Dee. Dig. § 364.]
    4. Appeal and Error (§ 699)—Refusal of Instructions—Record .
    Refusal of an alleged request to charge cannot be reviewed, where the record fails to show that such a request was made.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§2928-2930; Dec. Dig. §699.]
    5. Appeal and Error (§ 1068)—Exemplary Damages—Actual Damages.
    Since exemplary damages are only recoverable where actual damages have been sustained, the court’s refusal to charge on the issue of exemplary damages was not prejudicial to plaintiff, where the jury failed to find he had suffered actual damages.
    [Ed. Note.—For other cases, see Appeal and Error,g Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Appeal from District Court, Parker County; J. W. Patterson, Judge.
    Action by J. B. Pate against W. H. Varde-man and. others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    J. M. Richards and Preston Martin, both of Weatherford, for appellant. Hood & Shadle, of Weatherford, for appellees.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

This suit was instituted by J. B. Pate against W. H. Vardeman, Isaac Grindstaff, and John Lamm to recover damages for the wrongful issuance and levy of two certain writs of attachment. The case has been once before appealed and will be found reported in 141 S. W. 317. On the last trial judgment was rendered in favor of the defendants, and the plaintiff has appealed.

The first assignment is that the court erred in admitting the testimony of witnesses to the effect that appellant had refused, when called upon, to pay his indebtedness to appellee, and had said he would not pay the account at all if the appellee sued him. This evidence we think bore upon the issue that appellant was about to dispose of his property for the purpose of defrauding his creditors, and this is true whether such statement had ever been communicated to appellee prior to his making the affidavit for the attachment. In its last analysis the question was whether or not appellant was about to dispose of his property with intent to defraud his creditors, and not whether appellee was in possession of all the evidence which would tend to establish such fact.

Moreover, the evidence was admissible upon the issue of exemplary damages.

The second assignment of error is overruled because it erroneously assumes that the court instructed the jury to find that the second writ of attachment issued on December 5, 1908, was wrongful because based upon an affidavit “that Pate was indebted to him (Vardeman) and that he had refused to pay the same”; whereas, the court only submitted to the jury to find whether such attachment was wrongful because of such defective affidavit; the evidence raising such an issue.

The most serious question perhaps is raised by the third assignment attacking the fourth paragraph of the court’s charge, which is as follows: “If you find that after the levy was made and after the defendant herein W. H. Vardeman had recovered judgment in the justice court against said Pate, that the plaintiff herein, J. B. Pate, agreed with Sam Shadle, said Vardeman’s attorney, that the cotton might be sold and the proceeds applied to the satisfaction and the discharge of said judgment and costs in favor of said Vardeman against said Pate, or consented that such might be done, and if you believe that in pursuance of said agreement said cotton was brought to Weatherford by Varde-man, or some one acting for him, and sold and the proceeds applied to the satisfaction of said judgment and costs, and that the balance of said proceeds was paid to plaintiff herein, J. B. Pate, the plaintiff herein would not be entitled to recover anything by reason of the levy and seizure of the seed cotton and cotton growing on the homestead which was levied upon by the second writ of attachment, to wit, the one issued by the justice of the peace of precinct No. 4 on or about the 5th. day of December, 1908.” On the former appeal Chief Justice Key of the Court of Civil Appeals at Austin upon this point held: “The court should have instructed the jury that the writ of attachment was unlawfully issued and that the levy thereof upon the cotton referred to constituted a conversion of that property and entitled the plaintiff to recover its value less the amount subsequently paid to him out of the proceeds of the sale of the cotton, unless he had voluntarily consented that it might be sold and the proceeds applied to the payment of the judgment which Vardeman had obtained against him.” The trial court appears to have followed the instruction of the appellate court in thus submitting to the jury the question of whether or not appellant had voluntarily consented to a sale and application of the proceeds of the attached cotton. It is quite clear if appellant did so consent he waived his right of action for damages to recover the value of such cotton. ' He thus does recover its value, or at least an amount satisfactory to him. It also follows, we think, that such conduct, amounting as it does to a waiver of the trespass, carries with it satisfaction for the entire trespass to the homestead. It is difficult to conceive how this unequivocal act of waiver should be applied to a part only of appellee’s trespass. We follow the induction of the Court of Civil Appeals for the Third District and hold that the charge correctly stated the law.

It is next insisted that the court erred in refusing to instruct the jury to find for appellant at least nominal damages for the first writ of attachment issued November 4, 1908, and levied on two work horses shown to be exempt to the appellant, Pate. An examination of the record, however, fails to disclose that such a request was made, in the absence of which no possible error appears.

The jury having failed to find any actual damages, it follows that no harm could have resulted from thé court’s charge in favor of appellee on the issue of exemplary damages. Vindictive damages are only recoverable where actual damages are sustained.

The sixth assignment is too general to raise any specific question and is, hence, overruled.

We find no error in the judgment, and it is affirmed.