author: WILBSON, C. J.

text:
    ANDERSON v. STEDDUM.
    (No. 1761.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 21, 1917.
    Rehearing Denied April 19, 1917.)
    1. Guardian and Ward &wkey;>161 — Accounting — Review—Unjust but Legal Judgment.
    The Court of Civil Appeals cannot disturb the judgment of the district court disapproving a mother’s final account as guardian of her minor son, if the judgment was in accordance with law, though it appears unjust.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 523-526.]
    2. Guardian and Ward <&wkey;30(l) — “Income oe Ward’s Estate” — Statute.
    Pension money in a mother’s hands as guardian for her minor son was not “income” of the minor's estate, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4131, providing that the court may direct the guardian of the person to expend for the education and maintenance of his ward a specific sum, though such may exceed the income of the ward’s estate, but, without such direction, the guardian shall not be allowed in any case for the education and maintenance of the ward more than the clear income of the estate, since the income which the guardian, without an order of the court, is authorized to use for the education and maintenance of her ward, must arise from an “estate” owned by the latter.
    [Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 116-127, 129,130,132-135.J

      S. Guardian and Ward &wkey;s30(l) — Expenditures — Ward’s Pension.
    Though a minor’s pension money was paid into the hands of his mother, the guardian, by the federal government for his education and maintenance, it was paid to her as the person appointed under the laws of the state to receive it, and, when it reached her hands as guardian, it could be expended by her only in conformity to the laws of the state.
    [Ed. Note. — Eor other cases, see Guardian and Ward, Cent. Dig. §§ 110127,129, 130,132-135.]
    4. Guardian and Ward <&wkey;148 — Expenditures by Guardian — Right to Credit-Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4278, providing that in the settlement of any of the accounts of a guardian he shall account for the reasonable value of the labor or services of his ward or -the proceeds thereof, if any such labor or services have been rendered by such ward, and the guardian shall be entitled to reasonable credits for the board, clothing, and maintenance of his ward, the guardian is entitled to credits as specified when they represent expenditures made by him as authorized by law, and not when they represent those made on account of his ward without authority of, if not in defiance of, the requirements of the law.
    [Ed. Note. — Por other cases, see Guardian and Ward, Cent. Dig. § 497.]
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Proceedings on the final accounting of Mary A. Anderson, guardian of Chas. T. Ste'ddum, her minor son. Prom a judgment disapproving the final account, the guardian appeals.
    Affirmed.
    This appeal is from a judgment of the district court (on appeal to it from the county court) disapproving appellant’s final account as guardian of appellee, her minor son, which showed her not to be indebted as such guardian to appellee in any sum, determining, instead, that she had in her hands as such guardian $546.89 belonging to appellee, and ordering her to pay same over to him.
    The findings made by the court, on which he based his judgment, were as follows:
    “(1) I find that Mary A. Anderson was duly appointed guardian of Chas. T. Steddum by the county court of Fannin county and qualified as such as required by law.
    “(2) That as such guardian she collected from the U. S. government the pension due to said Chas. T. Steddum, the amounts being paid quarterly after the first payment of $132.92, and that the amounts are correctly stated in her amended final report filed in the county court on October 12, 1915.
    “(3) That she expended the same as is fully set forth in said report, and paid out for the use and benefit of said Chas. T. Steddum all the sums of money set out in said report.
    “(4) That she made her annual reports, which were filed and approved by the county court as stated in said final report.
    “(5) That she advanced to said Chas. T. Sted-dum a wagon and team at $200, on June 15, 1909; at that time he was a minor and a married man, and it was necessary to make Said advancement, which property he kept and appropriated to his own use and benefit.
    “(6) That she paid the costs of guardianship and attorney’s fees as shown in said final report.
    “(7) That there was no other property belonging to said Chas. T. Steddum out of which, to pay for his board, clothing, tuition, and maintenance other than the pension fund.
    “(8) That she was a married woman, and had no estate of her own to pay said expenses with for said Chas. T. Steddum; that she was his mother, and was a married woman, the wife of J. T. Anderson.
    “(9) That there was no order of the county court authorizing her to pay out said funds entered of record as required by law.
    “(10) I further find that there remains in the hands of said guardian the sum of $546.89 after allowing all legal and proper credits which belongs to said Chas. T. Steddum and should be paid to him by said guardian.”
    On this appeal the correctness of the findings, except the tenth, is not attacked. The tenth, is -attacked as unauthorized by the testimony.
    The court’s conclusions of law on the facts found by him were as follows:
    “(1) I conclude that she had no authority to pay out said funds without an order of the county cóurt properly entered of record, because the same was not an income of the estate.
    “(2) I conclude that pension money was his estate and was not an income.
    “(3) I conclude that she was authorized to pay out the costs of court, attorney’s fees, and to make the advancement of the wagon and team out of said pension money without any order of the county court to do so.”
    H. G. Evans, of Bonham, for appellant. A. P. Bolding and J. W. Gross, both of Bon-ham, for appellee. ¡
   WILBSON, C. J.

(after stating the facts as above). It appeared from the final account that appellant, as- appellee’s guardian, had received $835.42, being the aggregate of sums due him as a pension under laws of the United States, and had paid out on his account sums aggregating $1,043.43. It was not contended in the court below, nor is it here, that the sums she so paid out, or any of them, did not represent proper and necessary expenses incurred in the education and maintenance of appellee while a minor. And, it appearing that appellant had no means of her own enabling her to discharge the duty she owed appellee as his mother to support him while a minor, it was not contended in that court, nor is it here, that appellant was not entitled, as appellee’s guardian, to use the money she held for him as her account showed she had used it, if the money was “income of his estate” within the meaning of article 4131, Vernon’s Statutes. The contention was, and is, that it was not such “income,” and therefore that she could not use it as she did in the absence, as was the case, of an order of the probate court authorizing and directing her to so use it. So, it seems, the question presented is this one: Was the pension money in appellant’s hands as guardian “income” of appellee’s estate or not?

If this question should be answered in the negative, the judgment of the court below was in accordance to law (article 4131, Vernon’s Statutes; Smythe v. Lumpkin, 62 Tex. 242; Jones v. Parker, 67 Tex. 76, 3 S. W. 222; Blackwood v. Blackwood, 92 Tex. 478, 49 S. W. 1045; De Cordova v. Rogers, 97 Tex. 60, 75 S. W. 16; Logan v. Gay, 87 S. W. 852), and this court is without power to disturb it, because unjust, as it appears to us to be.

The article of the Statutes referred to is as follows:

“The court may direct the guardian of the person to expend, for the education and maintenance of his ward, a specific sum, although such sum may exceed the income of the ward’s estate; but, without such direction of the court, the guardian shall not be allowed, in any case, for the education and maintenance of the ward, more than the clear income of the estate.”

If the language of the statute is given effect, and it must be, then, clearly, the question must be answered in the negative; for if the “income” which a guardian without an order of court is authorized to expend for the education and maintenance of his ward must arise from an “estate” owned by the latter, it is plain that there must be such an estate before there can be. such income.” As appel-lee owned nothing except the pension money, unless that was an estate he owned nothing from which an income could arise. If it was an “estate,” and, clearly, it was, of course it was not “ineome of an estate” within the language of the statute; for it could not be “income from án estate” if it was the estate itself. It follows, we think, that the fund in appellant’s hand as not “income” of appel-lee’s estate, and therefore that she lawfully could not use it for his education and maintenance in the absence of an order of court directing her to do so.

Appellant insists the purpose of the Congress in providing the pension being, she asserts, to “assist the pensioner in providing for. his daily wants” (Price v. Society for Savings, 64 Conn. 362, 30 Atl. 139, 42 Am. St. Rep. 198), that the money paid to her for ap-pellee was in her hands as guardian for that purpose, and that she had a right to use it for his education and maintenance without first obtaining from the probate court an order authorizing and directing her to do so. In making this contention it seems to us she ignores the fact that, while the money may have been paid into her hands by the federal government for the purpose stated, it was paid to her as the person appointed under the laws of this state to receive it, and, when it reached her hands as guardian, could be expended by her only in, conformity to the laws of this state.

Appellant further insists that allowance of the credits she claimed was authorized by the concluding clause of an article (4278) of Vernon’s Statutes as follows:

“In the settlement of any of the accounts of the guardian, he shall account for the reasonable value of the labor or services of his ward, or the proceeds thereof, if any such labor or services have been rendered by such ward; and the guardian shall be entitled to reasonable credits for the board, clothing, and maintenance of his ward.”

But the clause invoked in the article set out must be construed in connection with other provisions of the statutes. When so construed, it means, we think, that the guardian shall be entitled to credits as specified when same represent expenditures made by him as authorized by law, and not when they represent expenditures made on account of his ward without authority of, if not in defiance of the requirements of, the law.

There is no error in the judgment, and it is affirmed.
      cg^lTor other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    RENFROE v. BRUTON et al.
    (No. 1717.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 10, 1917.
    Rehearing Denied March 29, 1917.)
    Appeal and Ekeoe <&wkey;202(l) — Requested Special Issues — Exceptions—Necessity.
    Where no exceptions were taken as required by statute to refusal of trial court to submit special issues, refusal need not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1582, 1586.]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Suit by Mrs. A. E. Renfroe against W. M. Bruton and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    F. B. Martin, of Longview, for appellant. T. B'. Stinehcomb and Lacy & Bramlette, all of Longview, for appellees.
   HODGES, J.

The appellant filed this suit in the form of an action of trespass to try title against W. M.. Bruton and J. M. Wood for the recovery of a small strip of land lying on the south boundary of a tract owned by her. She also sought an injunction restraining the defendants from interfering with her right of possession. The appellees, defendants below, answered by a plea of not guilty, and by way of cross-bill asserted that the suit was one for the location of a boundary line between the land owned by the contending parties. It was further alleged that the land in dispute was a public highway which had been in use for a number of years, and that if the appellant owned the land it was subject to an easement which had been acquired by the public by limitation. The case was submitted by the court upon special issues, and the jury returned a verdict finding that the line contended for by the appellees was the true boundary line between their lands and that of the appellant, and, further, that the defendants and other persons, without the consent and over the protest of plaintiff, had, under a claim of right so to do, continuously used the old road as it existed before a change made by Renfroe for a period of more than ten years. Upon these find'ings the court entered a judgment in favor of the defendants below for the land in dispute, and established the line asserted by them as the true boundary. There were no objections or exceptions reserved to the submission of those issues. The appellant requested the submission of other special issues, which the court refused. No exceptions were taken as required by statute to that refusal.

It has so often been held that a failure to reserve exceptions to the refusal of special charges is required as the basis of an appropriate assignment that it is now unnecessary to cite authorities in support of that proposition. Bequests for the submission of a special issue to the jury where special findings are to be made are not materially different from other special charges within the meaning of the statute. First National Bank v. Smith, 183 S. W. 862; So. Gas & Gasoline Engine Co. v. Richolson, 181 S. W. 529. Notwithstanding this failure to reserve the necessary exceptions, we have examined the record and find no sufficient reason for disturbing the judgment. The answers returned by the jury were fully warranted by the evidence and sustain the judgment rendered, and it will therefore be affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    GULF, C. & S. F. RY. CO. et al. v. MATHIS et al.
    (No. 693.)
    (Court of Civil Appeals of Texas. El Paso.
    April 19, 1917.
    Rehearing Denied May 10, 1917.)
    1. Carriers <&wkey;37 — Carriage os’ Goods — Interstate Shipment — Failure to Deliver.
    Bev. St. 1911, art. 6559, providing penalties for refusal on the part of a railroad company to deliver freight upon the payment or tender of the freight charges as shown by the bill of lading, does not apply to an interstate shipment.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 95, 927.]
    2. Commerce <&wkey;33 — Carriage of Goods — Interstate Shipment.
    Where merchandise was shipped from Oklahoma to Ft. Worth, Tex., transportation to be continued to some other point in Texas thereafter to be determined, and there was no delivery at Ft. Worth, but delivery was made at the ultimate destination, Abilene, although the goods remained some time in Ft. Worth and were shipped on a new bill of lading to Abilene, the shipment from Ft. Worth to Abilene was an interstate shipment.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by John P. Mathis and others against the Gulf, Colorado & Sante Fé Bail-way Company and others. Judgment for plaintiffs, and .defendants appeal.
    Beformed and affirmed.
    J. M. Wagstaff, of Abilene, for appellants. D. M. Oldham, Jr., and W. D. Girand, both of Abilene, for appellees.
   HIGGINS, J.

Appellees, John P. Mathis and Hugh L. Bay, copartners, on July 1, 1915, shipped a stock of merchandise and certain furniture from Cushing, Old., to themselves at Ft. Worth, Tex., over the line of the Atchison, Topeka & Santa Fé Bailway Company. At the time of the shipment, a through bill of lading covering the same was issued, which described the same and gave its weight. When the shipment from Cush-ing was made, appellees expected to rebill the same at Ft. Worth to some point in Texas to be thereafter selected by them. The latter part of August, 1915, they decided to ship the merchandise and furniture to Abilene, Tex., and sell it at that point. In the meantime, the shipment remained in the warehouse of the railway company at Ft. Worth and was not taken out by appellees. While the shipment was in storage in the warehouse at Ft. Worth, appellees were seeking a place to which to reship and rebill the same. About August 23, 1915, they selected Abilene as the point to which they desired to reship the merchandise and furniture, and upon that date they reshipped the same to that place. The initial carrier of the shipment from Ft. Worth to Abilene was the Gulf, Colorado & Santa Fé Bailway Company. It transported the same a part of the way, and then delivered the shipment to the Abilene <& Southern Bailway Company, which completed the transportation to Abilene. At the time of the reshipment at Ft. Worth, the Gulf, Colorado & Santa Fé Bailway Company took up the original bills of lading which had been issued by the Atchison, Topeka & Santa Fé Bail way Company and issued new bills of lading covering the shipment from Ft. Worth to Abilene. At the time of the reshipment, appellees and' the agent of the railway company figured the amount due as transportation charges from Cushing to Ft. Worth and the storage charges which had accrued for storage in Ft. Worth, and found the same to be $128.92. Appellees then offered to pay same, and were informed by the railway agent that all charges could be paid when the shipment was delivered at Abilene. So those charges were not paid at Ft. Worth. Upon the bills of lading issued at Ft. Worth, the agent indorsed said sum of $128.92 as “advance charges for storage and freight.” There was no notation upon the bills to show the amount of freight charges from Ft. Worth to Abilene. The bills had this in-dorsement:

“This bill of- lading is given subject to correction -as to rate, weight, classification, so as to conform to the rates, rules, and regulations prescribed by the Bailroad Commission of Texas.”

The amount of freight charges from Ft. Worth to ADilene, according to the weight of the shipment, classification, and rates of the Texas Bailroad Commission, was $84.90. The bills also had this indorsement:

“Gulf, Colorado & Santa Fé Railway Company, straight bill of lading, original, not negotiable, for use only between points within the State of Texas, Fort Worth, Texas, 8/23/1915. Received from Mathis & Ray at Fort Worth, in apparent good order, the following packages consigned to Mathis & Ray, Abilene, Texas.”

Here follows a description of the articles shipped showing the kinds and weight of each package.

Upon arrival at Abilene, the Abilene & Southern Railway Company demanded the payment of the aforesaid sums of money and an additional amount of $49.50. Appellees tendered $128.92, plus $84.90, or a total of $213.82, and demanded delivery of the shipment. The Abilene & Southern Railway Company refused to make delivery unless the additional sum of $49.50 he paid. A few days later, appellees paid the total amount demanded and received the shipment. The $49.50, however, was immediately refunded to them.

The foregoing is a condensed statement of the facts found by the trial judge (the case having been tried without a jury) and as disclosed by the admitted facts in the statement of facts. Other facts presented by the record are not material to a consideration of the case.

Appellees brought this suit to recover penalties under the provisions of article 6559, R. S., and for damages to the shipment while in transit from Ft. Worth to Abilene. Judgment in their favor was rendered for penalties in the sum of $424.50, and for damages in the sum of $57.50, from which the defendants prosecute this appeal. 'No question is made as to the item of $57.50. The item' of $424.50 is not recoverable unless the shipment' from Ft. Worth to Abilene was intrastate in nature. If the transportation between the points indicated was but part of an interstate shipment, then the statute noted can have no application. In determining the nature of the shipment, the case is gov-, erned by. the rules announced in Houston, etc., v. Ins. Co., 89 Tex. 1, 32 S. W. 889, 30 L. R. A. 713, 59 Am. St. Rep. 17; and Railway Co. v. Wood-Hagenbarth Cattle Co,, 105 Tex. 178, 146 S. W. 538. In the case last cited, a shipment of cattle moved from Valentine, Tex., to El Paso, Tex., over the Galveston, Harrisburg & San Antonio Railway Company; thence to Columbus, N. M., over the line of the El Paso Southwestern Railway Company. Separate contracts were made covering the two movements. The question to be determined was whether the shipment was interstate or intrastate. In deciding this question, Justice Phillips said:

“As to whether the movement of the cattle from Valentine to El Paso was an interstate or intrastate shipment must be determined by the following questions: What was the ultimate destination of the shipment at the time’it was made? Though the ultimate destination may have been without the state, was there any bi'eak or interruption in the journey by any delivery of the cattle by the carrier to the consignee at' El Paso? If at the time the shipment originated its final destination was without the state, and it moved to such destination in a continuous and uninterrupted journey, unaccompanied by any delivery by the carrier to the consignee within the state, it was clearly an interstate shipment under the well-established rules of this court upon this subject. On the other hand, if there was a delivery of the cattle by the carrier to the consignee within the state, it was an intrastate shipment, notwithstanding it may have been the intention of the shipper at the time the shipment was made that it should be transported to a point without the state as its ultimate destination.”

In the case at bar, Ft. Worth, was not the ultimate destination of the shipment, at the time it was made. It was not intended that transportation should terminate there, but that it should be continued to some other point in Texas to be thereafter determined. Nor was there any break or interruption of the journey by delivery at Ft. Worth. Delivery was not made until the intended ultimate destination was reached. The journey from Ft. Worth to Abilene was made in pursuance of the purpose of the shippers existing at the time the original shipment was made from Cushing. This case is distinguishable from Railway Company v. State, 97 Tex. 274, 78 S. W. 495. Its distinguishing characteristic is plainly indicated by Justice Phillips in the case from which we have quoted. Railway Co. v. Taylor, 103 Tex. 367, 126 S. W. 1117,1200, and Railway Co. v. Nations, 136 S. W. 833, are likewise distinguishable in this: That actual delivery was made to the consignee at El Paso, the destination named in the bills of lading issued by the initial carriers. This distinguishing feature is also pointed out in the Wood-Hagenbarth Case. We hold the shipment to be interstate, and that the penalties are not recoverable.

Reformed, and judgment here rendered in favor of appellees for $57.50, with interest from the date of the judgment below.

Reformed and affirmed.
      iSfe^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    STATE ex rel. BURCHILL v. CITY OF POLYTECHNIC et al.
    (No. 1150.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 11, 1917.
    Rehearing Denied May 9, 1917.)
    1. Municipal Cokforations <&wkey;7 — Territo-eial Size — Statute—Construction.
    Under Rev. St. 1911, art. 777, providing that no town hereinafter incorporated under title 22 (articles 1072-1076) shall contain a superficial area of more than four square miles when such town has more than 2,000 and less than 5,000 inhabitants, and article 1084, providing that application for incorporation shall include no territory not intended to be used for strictly town purposes, a town of 3,000 inhabitants may incorporate four square miles of territory, including territory extending beyond aggregation of residences and structures if such territory is to be used for strictly town purposes, modifying rule that town should be marked by an area of the aggregation of residences and of appurtenant structures.
    [Ed. Note. — Eor ’ other cases, see Municipal Corporations, Cent. Dig. §§ 11-13.]
    2. Appeal and Error &wkey;>262(2) — Failure to Submit Special Issue — Absence op Request.
    Although special issue submitted was not as full as it should have been, where it was correct as far as it went, parties cannot complain in absence of a request for fuller submission; failure' to request being in effect an agreement that matter should be left to finding of the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1586.]
    3. Trial >&wkey;351 (5) — Special Issue Embodied in Issues Submitted — Failure to Submit to Jury.
    Where a requested special issue is sufficiently embodied in other issues submitted, failure to submit it is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 831.]
    4. Trial <&wkey;356(5) — Special Issues — Failure to Answer! — Harmless Error.
    That the jury disagreed on a special issue submitted which was immaterial is not ground for reversal.
    [Ed. Note. — For ’other eases, see Trial, Cent. Dig. § 852.]
    5. Statutes <&wkey;107(5) — Subject and Title op Acts — Acts Relating to More Than One Subject.
    Acts 33d Leg. c. 21, is entitled “An act to amend articles 1070-1076 of title 22, chapter 15 of the Revised Statutes of Texas of 1911, and to add to said chapter article 1076a, all of said articles relating to and regulating the adoption of the commission form of government by cities and towns, and towns and villages of less than 5,000 inhabitants.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1076a, provides that this chapter shall not repeal any laws under which such cities or towns, or towns or villages, may now operate, and incorporation of all cities and towns, or towns or villages, heretofore had or attempted to be had under Rev. St. 1911, arts. 1072-1076, or any previous general law, are hereby validated as to area and powers and duties, and all acts, etc., done under the same are hereby in all things validated and declared to be binding. Seld, that article 1076a is constitutional; the act of which it is a part not containing more than one object mentioned in the title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 125, 126.]
    6. Municipal Corporations &wkey;>15 — Adoption op Commission Government — Validating Statutes — Construction.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1076a, regulating adoption of commission form of government and validating charter of corporations which propose to adopt a commission form of government or those which have so incorporated, • validates the boundary as well as the contents within the boundary of a city adopting the commission form of government.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 40.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Suit in the nature of quo warranto by the State, on the relation of Belle M. Burchill, against the city óf Polytechnic and others. Judgment for city, and relator appeals.
    Affirmed.
    Marshall Spoonts and Templeton & Milam, all of Ft. Worth, for appellant. Felix M. Bransford and Samuels & Brown, .all of Ft. Worth, for appellee.
   HUFF, C. J.

The state of Texas, on the relation of Mrs. Burchill, brought suit in the district court of Tarrant county, in the nature of quo warranto, against the city of Polytechnic, its mayor and other officers, to test the validity of the incorporation of that city because of the wrongful inclusion within its boundaries of relator’s land. Judgment resulted in favor of the appellee, the city of Polytechnic, from which the relajtor prosecuted the appeal.

The town of Polytechnic was incorporated in November, 1910, under the provisions of' articles 1072 to 1076, inclusive, of the Revised Statutes of 1911. The application for incorporation described the territory sought to be-included within the bounds of the Incorporation. The judge’s order of election and the petition, together with the- order declaring the result of the election, show that there were less than 4 square miles of territory included therein, and at that time there were more than 2,000 and less than 5,000 inhabitants within the territory; that there were at. that time 3,000. The relator filed her petition in this case on the 20th day of March, 19.14. The property of relator included within the limits of Polytechnic contained 65-acres, of which a little less than 50 acres, were platted and subdivided into- lots and blocks, streets and alleys, and was known and designated on the maps and plats prior-to such Incorporation as Burch-Hill addition. There were a little less than 15 acres unplat-ted included within the corporate limits. The Burch-Hill addition was platted and proper dedication deed executed and placed of record in the deed records some time in the winter of 1907-08. The lots and blocks of the platted addition were placed on the market for sale as town lots, and 100 of" them had been sold before the institution of' ihis suit, at prices approximating $350 per lot, prior to the incorporation. The lots so-sold by her were in the most part purchased by nonresidents and owned by them at the time of the suit, leaving in her name about 117 lots, together with the 15 acres. There were 85 acres of land belonging to the relator outside of the corporate limits, and referred to in the testimony as being grazed by cattle. The Burch-Hill addition is contiguous and immediately across the street from what is known as the Englewood addition to Polytechnic. This addition had more ■ than 72 dwelling houses occupied at the time • the suit was filed. Mrs. Burchill, by her testimony, contends that when the Burch-Hill addition was laid out it was for an independent community. The dimensions of her lots were 50x140 feet. She states that there was a meadow on this land which had to be-mowed; that she did not regard it as a meadow however; that she did not sell the property as farm land, but as lots, and regarded the addition as town lots, and sold them as such in 1910. Her addition lies south of the Polytechnic school campus and south and west of the Englewood addition. It appears that one line of the addition follows what is known in the record as the Bowman Spring road, and that the 15 acres unplatted lies north of that road, inside of the corporation. The lines of the corporation were so run as to exclude certain farm and pasture lands lying immediately north of her platt§d addition, and the corporation only took in that part of her land which was platted, together with the 15 acres, which was north of the road above mentioned. At the time of incorporating, the Englewood addition was not settled, and there was considerable unoccupied territory within the corporation; but the greater portion of it had been platted and marked off into lots and blocks, streets and alleys, which had been filed and were of record. This, perhaps, will be sufficient statement of the case to give a general idea of the questions involved.

The first assignment asserts error on the part of the court in refusing to define the terms “town” and “city.” The proposition presented is:

“By the terms ‘town’ and ‘city,’ as used in the statute, giving to the inhabitants of such municipalities authority to incorporate and to include within their incorporation certain territory with defined boundaries, is meant an aggregation of residences and of pertinent structures, and the limits of such town or city do not extend beyond the area occupied and marked by the aggregation of houses and appurtenant structures and their inhabitants, and the court should have so instructed the jury.”

The appellant requested a special instruction presenting substantially the proposition. As we understand the decisions of this state, where a town is unincorporated, or where the law does not define a town, the ordinary understanding or definition of “town” or “city” is understood, and is such as may be or are granted the power to incorporate. Prior to the act of 1S95, the Legislature had not undertaken to define the territory which a town or city might include within the limits of the corporation. In the case of State v. Eidson, 76 Tex. 362, 13 S. W. 263, 7 L. R. A. 733, the Supreme Court said:

“The Revised Statutes authorize towns to establish a corporation by an election, provided they contain more than 200 and less than 10,000 inhabitants. Article 506. No definition of the word ‘town’ is given, and it follows that we must take the woi’d on its ordinary signification —a collection of inhabited houses. The term carries with it the idea of a considerable aggregation of people living in dose proximity.”

The principle above announced is followed in Ewing v. State, 81 Tex. 172, 16 S. W. 872; Judd v. State, 25 Tex. Civ. App. 418, 62 S. W. 543. The Act of 1895, § 1, now article 777, R. C. S., by its title declares, “An act to define the territory and prpvide for establishing the boundaries of cities and towns of this state, and to validate,” etc: The article, as carried forward, now reads:

“No city or town in this state shall be hereafter incorporated under the provisions of _ the general charter for cities and towns contained in title 22 of the Revised Civil Statutes of this state, with a superficial area of more than two square miles, when such town or city has less than two thousand inhabitants, nor more than four square miles, when such dty or town has more than two thousand and less than five thousand inhabitants, nor more than nine square miles, when such city or town has more than five and less than ten thousand inhabitants.”

Article 1034, with reference to incorporating towns and villages, directs that the application presented be signed by at least 20 resident electors, giving the boundaries and “including therein no territory except that which is intended to be used for strictly town purposes.” This last provision applies to cities and towns. Article 774. The facts show in this case that the area, was less than ,4 square- miles and the inhabitants therein were morp than 2,000 and less than 5,000; that they exceeded 3,000 .when the petition was presented. The order granting the application, and the one declaring the result of the election made by the county judge, recite the above facts, and, aliunde the judge’s record, the evidence shows the same facts. The Supreme Court, in the case of State v. Hoard, 94 Tex. 527, 62 S. W. 1054, answered in the negative the following certified question:

“Hid the inclusion of two hundred and five acres of cultivated land within said territory render said incorporation invalid?”

In that ease the territory described in the petition contained 475 acres, of which 205 acres were in cultivation. The Supreme Court said:

“The provision, ‘and including therein no territory except that which is intended to be used for strictly town purposes,’ was intended to embody in the statute the rale expressed in Ewing v. State [81 Tex. 172], 16 S. W. 872, and State v. Eidson [76 Tex. 302], 13 S. W. 263 [7 L. R. A. 733], forbidding the people of a town or village to embrace for taxing purposes lands not intended to be divided into lots and occupied for town purposes. This court cannot say, as a matter of law, that the including of 205 acres of farming land of itself rendered the incorporation void. The statute makes it a question of intent, which is a question of fact; and the trial court found as a fact that the land was at the time intended for town purposes, which brings it within the terms of the law.”

It has Ibeen held that article 777 is restrictive of the amount and does not authorize such incorporation when not for strictly town purposes. State v. Merchants, 38 Tex. Civ. App. 226, 85 S. W. 483. In the Ewing Case, supra, it is said:

“But it is insisted that the boundaries of a municipal corporation is a question to be determined by the Legislature and not by the courts. This may be true as to such municipalities as have been or may be established by a special legislative enactment. It was so • held by this court in Norris v. City of Waco, 57 Tex. 635. So, also, if the Legislature had provided that the cities. proposing to incorporate under the general laws should be empowered to embrace territory lying beyond their actual limits, it may be that, in the absence of a clear abuse of the power, it would be the duty of the courts to respect the legislative will and to hold an incorporation including such additional territory valid.”

Taking the two articles, 777 and 1034, together’, they authorize a town, of over 2,000 and less than 5,000 inhabitants to incorporate 4 square nriies of territory, including territory intended to be used for strictly town purposes. The Legislature granted that power to the promoters, and to that extent the ordinary understanding of or definition of a town is qualified. These articles were enacted subsequent to the two first cases cited from the Supi'eme Court, and, to Judge Gaines’ suggestion that there was no definition of a town by the statute, the Legislature responded by an act to define the territory, and further modifying the rule that such territory could include land where it was intended to' be used' for town purposes. This certainly modified the rule that the incorporation should be marked by an area of the aggregation of residences and of appurtenant structures. The inclusion of farm land, Judge Brown said, in, the Hoard Case, would not invalidate the incorporation as a matter of law; but “the statute makes it a question of intention, which is a question of fact.” To have instructed the jury, with reference to the power to incorporate a town, that only such as was marked by the area of aggregated residences and appurtenant structures could be incorporated, would be error. Under the statutes, a town of over 2,000 and less than 5,000 could incorporate an area of 4 square, miles if it was intended the territory included should be used strictly for town' purposes. As suggested by Judge Gaines in the Ewing Case;

“In the absence of abuse of power, it would be the duty of the court to respect the legislative will, and to hold the incorporation of such additional territory valid” — the very thing which Judge Brown subsequently did in tbe Hoard Case.

The Courts of Civil Appeals have subsequently recognized the rule above stated since tbe enactment-of those statutes. Merritt v. State, 42 Tex. Civ. App. 495, 94 S. W. 372; MfcClesky v. State, 4 Tex. Civ. App. 322, 23 iS. W. 518; Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603; State v. Baird, 79 Tex. 63, 15 S. W. 98.

The second and third assignments to the fifth issue submitted are overruled. The issue and question which the statutes and the holdings in the Hoard, Merritt, and Thompson Cases say are questions of fact, which should have been submitted to the jury for their finding, were submitted by this issue. The issue, perhaps, was not as full as it should have been. 'The issue itself, as far as it went, was not erroneous, and, if appellants desired' a further fact submitted, a proper issue should have been prepared ,and presented to tbe court. If they did not do so, then they in effect agreed that the matter should be left to tbe finding of tbe trial court, and, if necessary to support tbe judgment, we will impute such finding. As a matter of fact, the issue, as submitted, is in the form and language used by appellant in the petition and which was urged as a ground for annulling the corporation.

Assignment 4 complains that special issue No. 10 should have been submitted. We think this issue was sufficiently submitted to the jury by the court in other issues, and there was no error in failing to submit this one.

The fifth assignment asserts error in ignoring the disagreement of the jury as to issue No. 8. That issue was:

“State and find whether the property of Mrs. Belle M. Burchill, within the corporate limits of Polytechnic, was suitable or adapted for town purposes within and as a part of said corporation?”

The jury answered that nine voted that it was not suitable and three that it was. In' answer to the seventh issue, they had answered that the greater portion of such land was suitable for and adapted to town purposes. The difference in the two issues consisted in that the seventh required an answer whether it was generally suitable and adapted for town purposes, while issue 8 required an answer as to its adaptability “within and as a part of said corporation”— Polytechnic. The jury evidently could not agree as to its suitableness and adaptability for town purposes for and in Polytechnic, but could agree that for town purposes generally it was suitable and adaptable. The facts are uneontroverted that this land was within the corporate limits which did not exceed 4 square miles, and at the time of incorporation there were over 2,000 and less than 5,000 inhabitants. The jury had answered the fifth issue that this territory was voted upon with the expectation and intention that said lands and real estate would in the reasonably near future be used for town purposes. These facts, under the statutes and decisions above cited, were sufficient to authorize the promoters and to give the power to incorporate that territory. It was therefore immaterial whether the jury found that it was suitable to Polytechnic or not. They did find that it was adapted for town purposes. These facts might, perhaps, be looked to in ascertaining the purpose and intention of the voters at the election, but were not sufficient, in the opinion of the jury, to find that it was not the purpose and intention of the voters to use the land for strictly town purposes. So regarded, the issue became and was immaterial,' and their failure to answer should not reverse the case. Coons v. Lain, 168 S. W. 981 and authorities cited.

The sixth assignment urges the court was in error in granting the motion of the ap-pellee for judgment. We believe the prop-, osition presented under this assignment is sufficiently answered in considering the preceding assignments.

The seventh assignment we do not believe should be considered, as it is not briefed in accordance with the rules. We should notice, however, the contention of appellant that article 1076a, Vernon’s Sayles’ Civil Statutes, is unconstitutional because the act of which the above article is a part contains more than one object, and because the matters covered by the article are not mentioned in the caption of the act. The article, or section of the act, is as follows:

“This chapter, nor any provision herein, shall not repeal any laws under which such cities or towns or towns or villages, may now operate and shall not affect the incorporation of any city or town or town or village within the state of Texas, and incorporation of all cities or towns, or towns or villages, heretofore had or attempted to be had, under chapter 15 of title 22 of the Revised Statutes of Texas, of 1911, or any previous general law, are hereby validated, as to area and powers and duties and all acts done under same, and all bonds heretofore issued by such cities or towns, or towns or villages, which have been approved by the Attorney General of the State of Texas, and registered by the Comptroller of the State of Texas, are hereby in all things, validated and declared to be valid and binding obligations against such city or cities, or such town or towns.”

We are disposed to think: the act constitutional, and not subject to the objections made. This question has been frequently discussed by the Supreme Court and others, and it would add nothing to the matter to enter into a discussion. We will content ourselves by citing some of the cases: Doep-penschmidt v. Ry. Co., 100 Tex. 532, 101 S. W. 1080; Ry. Co. v. Stoker, 102 Tex. 60, 113 S. W. 3; Austin v. McCall, 95 Tex. 565, 6⅜ S. W. 791. The act in question was passed by the Thirty-Third Legislature (page 36). The act authorized cities and towns of less than 5,000 inhabitants to adopt the commission form of government. The subject of the act was to amend certain articles of the statutes and to add article 1076a, relating to and regulating the adoption of the commission form of government. It would be useless to adopt a commission form of government if the area of the corporation was invalid. It was only valid municipalities which could adopt that form. The validation of the charter of the corporation which proposed to adopt a commission form of government and those which had theretofore under that chapter so incorporated was relevant and germane to the subject relating to such government.

It is also contended that the statute does not validate the illegal inclusion of the relator’s property within the boundaries. That the word “area” means the extent of territory within the designated boundary and should be held to apply only to such corporations as have included within their limits an excess of territory over that authorized by the statute. Article 777 provides a town may be incorporated “with a superficial area” of not more than two, four or nine square miles. The validating act makes lawful all corporations mentioned in the act as to area. In geometry, “area” means the superficial contents of any figure; the surface included within any given lines. Webster. Hence, the superficial contents within the lines of the corporation is validated by the act. The statutes evidence the fact that the term was used in its geometrical sense, validating to the boundary as well as the contents within the boundary. It was used in the sense of “the area of a square or triangle.”

The eighth and ninth assignments urge objections to certain evidence. We regard this testimony, under the interpretation that we give the statutes, as relevant and not objectionable on the grounds urged.

We find no error on the part of the court in refusing to submit the issues requested by appellant upon which assignments 10 and 11 are based.

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

      ¿gsoFor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    MARYLAND CASUALTY CO. v. W. C. ROBERTSON & CO.
    (No. 7689.)
    (Court of Civil Appeals of Texas. Dallas.
    April 14, 1917.
    Rehearing Denied May 19, 1917.)
    1. Insueanob <&wkey;665(7) — Indemnity—Notice of Accident — Agency—Evidence.
    Evidence held sufficient to show that agent writing employé’s indemnity insurance was the agent of the insurer, so that a notice to such agent of the occurrence of the injury was sufficient.
    [Ed. Note. — For other cases, see Insurance, Cent.'Dig. §§ 1723, 1724, T726, 1727.]
    2. Insurance i&wkey;539(3) — Indemnity—Notice of Accident — Time-^-Sufficiency.
    Where the employé of one taking employer’s liability insurance was injured on July 15th, but made no claim, until service of citation on August 25th, and the insured on August 27th gave the citation to the agent of the insurer, the requirement of the policy that notice of the áceident must be given immediately was sufficiently complied with.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1329.]
    3. Insurance <&wkey;539(5) — Indemnity—Notice of Accident — Delay.
    Where employer’s liability policy provided that immediate notice of accident and suit must be forwarded to the insurer, but did not expressly stipulate that a failure should work a forfeiture, delay in giving notice, if any, is no defense where the insurer received notice in time to make full investigation and suffered no loss or injury by reason of the delay.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1333, 1335, 1836.]
    4. Insurance &wkey;»435 — Indemnity — Policy —Construction—“Occupation Connected with Cotton Ginning.”
    An employer’s liability policy insuring the employer against actions resulting from injuries to employés engaged in ordinary repair and gin work, or any occupation connected with the business of cotton ginning, cotton pressing, and bookkeeping, covers liability to an- employé who was painting the roof of the gin to preserve the iron from rust, under the clause “engaged in occupations connected with the business of cotton ginning.”
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1144.]
    5. Insurance &wkey;665(4) — Indemnity—Policy —Construction.
    Evidence held to show that an injured em-ployé was “engaged in ordinary repair work,” within meaning of employer’s liability policy insuring against injuries to employés so engaged.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 1722.] '
    6. Insurance <&wkey;151(2) — Indemnity Insurance — Policies—What Constitutes.
    Where an employer’s liability policy did not refer to the application, and did not recite that it was issued in consideration of thp representations made in the application, such' application could not be considered in construing the contract or referred to for determining the terms and conditions thereof.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 308.]
    7. Insurance <&wkey;156(3) — Indemnity Insurance-Persons Insured.
    A policy of employer’s liability insurance payable to Robertson & Co. will support suit by such company which owned all the stock in the Planters’ Gin Company, and agreed to satisfy any judgment obtained by an injured employé against such company, and it paid the judgment, where pinned to the face of the policy was a rider providing that “notice is accepted that the gin plants named are owned and operated by W. C. Robertson & Co., being named and designated as the Planters’ Gin Company.”
    Error from District Court, Hill County; Horton B. Porter, Judge.
    Action by W. C. Robertson & Co. against the Maryland Casualty Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Neff & Taylor, of Waco, for plaintiff in error. Morrow & Morrow, of Hillsboro, for defendant in error.
   TALBOT, J.

This suit was instituted against the plaintiff in error by the defendant in error in the district court of Hill county by its original petition filed therein on July 21, 1915. The suit was based upon a certain employer’s indemnity insurance contract by the terms of which the plaintiff in error agreed to indemnify the defendant in error against loss from liability imposed by law upon the assured for damages on 'account of bodily injury, including death resulting therefrom, suffered while this policy was in force by any employé of the assured while the said employé was engaged in the occupation connected with the business of cotton ginning, pressing, and bookkeeping, including ordinary repairs. The defendant in error alleged that while said policy was in force one of its employes was injured, and subsequently instituted suit against it, and obtained judgment for such injuries, which the defendant in error was required to pay. This suit was for reimbursement for the amount of such judgment and attorney’s fees. The plaintiff in error went to trial on its first-amended original answer, and among other defenses alleged: (a) That it was not liable to the defendant in error for the reason that Ed Washington, the employé who was injured, was not engaged in the business of cotton ginning, pressing, or bookkeeping, or in doing such character of repair work as was contemplated by the policy sued on, at the time of his injuries; (b) that the defendant in error, or the assured under said policy, had failed to give notice to the plaintiff in error of the accident as required by the terms of the policy. The case was tried before the court without a jury, the trial resulting in a judgment in favor of the defendant in error for the sum of $848.48, with interest and costs. The plaintiff in error excepted to the judgment of the court, gave notice of appeal, and the case is now before this court on writ of error.

The trial court made and filed the following findings of fact:

(1) I find that the Maryland Casualty Company issued to W. C. Robertson & Co., a firm composed of W. C. Robertson and Ed Woodall, its policy No. 457, of date the 25th day of September, 1908, which said policy is attached to plaintiff’s petition, and is set out in the statement of facts pages 28 to 31, and that said policy was issued through Guy C. West of Hillsboro, an insurance agent. (2) By a rider attached to said policy, the gin at .Jesse, Tex., operated hy the Planters’ Gin Company, a corporation, was covered by said policy No. 457. (3) That during the time said policy was in existence, about the 15th day of July, 1909, Ed Washington, a negro, who was a regular employé of the Planters’ Gin Company, suffered bodily injury from an accidental fall from the roof of the gin building, which resulted in the amputation of his leg above the ankle immediately thereafter. (4) The said Ed Washington had been employed to work during the ginning season which would actively begin about the 20th of August, and at the time of his injury was engaged in repairing the roof of the building, by painting the same to protect it from rusting and leaking, which said employment was proper in preparing said gin for operation during the ginning season, which must be done before active operation began, and was an ordinary repair in gin work. (5) After said accident Ed Washington filed suit in the district court of Hill county, and procured a verdict and judgment for $1,500 against the Planters' Gin Company, from which an appeal was taken to the Court of Civil Appeals for the Fifth District, and which judgment was reversed and remanded for new trial and subsequently, on the 28th of January, 1914, said Ed Washington recovered a" judgment against the Planters’ Gin Company for $400 and costs of suit. (6) That said judgment and costs of suit, as hereinafter set out, and attorney’s fees, as hereinafter set out, was paid by W. C. Robertson & Co., a firm composed as aforesaid; that the said W. C. Robertson and Ed Woodall were the principal stockholders in the Planters’ Gin Company, and that pending this suit they sold their stock in said gin property to some farmers, agreeing to hold the purchaser and property harmless from any claim on account of the suit of Ed Washington, and they in fact paid said judgment on February 1,1914. (7) The accident to Ed Washington occurred in' the latter part of July, 1909, at Jesse, about five miles from Hillsboro, where W. 0. Robertson and Ed Woodall, lived. At tlie time of the accident G. T. Green, who was an officer in the corporation and manager of said gin, was present, but he failed to notify either W. O. Robertson or Ed Woodall of the accident, until W. O. Robertson called him on the telephone from Hillsboro; that the said W. O. Robertson and E'd Woodall had no knowledge of the accident until the time when W. 0. Robertson called G. T. Green over the phone, as above mentioned; that the said W. C. Robertson called G. T. Green and learned of the accident about five minutes after he had heard that there had been an accident, and within- ten minutes thereafter he called Guy 0. West on the telephone, and told him of the accident; that it was something like four or five days or a week after the accident that G. T. Green was called up by W. O. Robertson, as aforesaid. (8) Guy 0. West & Oo., of which Guy 0. West was manager, were the parties through whom the policy in this case was issued, and the general agents for. defendant expected Mr. West to give them notice after he learned anything about the accident. (9) W. 0. Robertson & Oo., were served with citation in the suit of Ed Washington against them on the 25th day of August, 1909, and through their attorneys, Morrow & Smithdeal, they notified Guy O. West & Co., by letter of date August 27, 1909, of the filing of the suit and the serving of citation, sending the citation with the letter, which letter and citation was immediately sent to George Willig & Oo., general agents for the Maryland Casualty Company, at Waco, by Guy 0. West. And Guy 0. West had previously, by letter dated August 25th, notified the general agents aforesaid of the report of the accident. (10) Mr. George Willig, the general agent aforesaid, upon receiving the letter and citation from Guy O. West & Oo., dated August 25, 1909, turned the matter over to Messrs. Baker & Baker, as attorneys for the company. J. W. Baker, of that firm, came from Waco to Jesse and Hills-boro on the 29th and 30th of August to investigate the claim. Before coming to Hillsboro, John W. Baker and his brother, Waller, talked the matter over, and determined that, in their opinion, the Maryland Casualty Company was not liable on the policy because of the want of notice in what they deemed sufficient time. (11) The Maryland Casualty Company denied liability under its policy, and refused to defend the suit; and W. C. Robertson & Co. employed Messrs. Morrow & Smithdeal to defend the suit at the agreed fee of $250, which was reasonable, and they paid $125 of same on the 28th day of December, 1909, and the balance during the year 1910. (12) The first judgment for $1,500 was obtained on the 20th clay of September, 1909, after a trial, and in order to appeal the case it was necessary to pay the stenographer’s fee for getting up the statement of facts, of $9, which was paid on December 1, 1909, by the plaintiff. (13) In the case court costs to the extent of $61.23 were charged against W. C. Robertson & Co., and the same were paid on July 10, 1914. (14) In the policy of insurance sued upon the defendant agreed to defend all suits and pay all expenses. (15) W. C.' Robertson and Ed Woodall and G. T. Green stood in readiness to and offered to- assist in investigating the claim and the accident, but defendant, upon denial of liability, made no further investigation of the facts than to talk to G. T. Green and W. O. Robertson. At all times after the accident, and up to and after the time of the first trial of the case, in September-, 1909, all the witnesses to the accident were at Jesse and Hillsboro, in Hill county. Tex., and easily accessible. (16) The defendant in coming to Hillsb.oro did so in obedience to a general custom to investigate all accidents claimed to be covered by policies it issued, and did not undertake to consult the various witnesses to the accident; and as a basis for denying liability in no wise considered the question of whether it was hurt by any delay in receiving notice o-f the accident, relying rather upon the letter of their contract, which, as they interpreted it, required immediate notice of the accident, and upon the fact that such immediate notice had not, in their opinion, been given.

The policy in question provides:

"Immediate notice of any accident and of any suit resulting therefrom, with every summon or other process, must be forwarded to the home office of the company, or to its authorized representative ; the company will investigate all accidents, and defend all suits of which such notices are given to it, and pay all judgments recovered against the assured in such suits up to said limits.”

The first and second assignments of error are, in effect, that the court erred in its eighth finding of fact, wherein the court found that “Guy 0. West & Co., of which Guy C. West was manager, were the parties through whom the policy in this ease was issued, and the general agents for the defendant expected Mr. West to give them notice after he learned anything about the accident.” The contention under these assignments is that “the finding is not only unsupported by any evidence, but is contrary to and in conflict with the overwhelming preponderance of the evidence, and, being upon a material fact in the case, is prejudicial error.” The evidence is sufficient, in our judgment, to show that Guy O. West was such an agent or representative of the plaintiff in error as that notice to him of the accident in question satisfied the demand of the policy sued on in that particular. It appears, as we gather from the testimony, that Guy C.. West, of the firm mentioned, wrote the policy sued on as agent for the plaintiff in error, that his name was placed on the back of said policy as such agent, that he had the plaintiff in error on his list in -whom he might write or take applications for insurance, and the assured -only knew him in the transaction. ■ It further appears that the application for the policy was taken and signed by Guy G. West & Go. as subagents; that they collected the premium therefo-r, and delivered the policy to the assured; and that the general agents, George Willig & Go., of Waco, Tex., expected the said subagent to- report notice of any accident covered by the policy. In this connection we quote in part the testimony of Guy G. West, of the firm of Guy O. West & Co., and George Willig, plaintiff in error’s general agent. Mr. West said:

“I know about this policy here; I had something to do with the issuance of it. This label on the back, ‘Guy G. West & Company Insurance,’ is my label. I took the application for that policy. I don’t know how long I continued that connection with the Maryland Casualty Company. I have had some little business with them for probably fifteen years. I think I was taking applications for insurance in July of 1909 and August of 1909.”

He further said:

“I suppose that I collected the premiums on this policy. There are a great many of those policios, and I don’t say that I remember specifically about that one, but I feel that I did.”

Mr. Willig, after stating that he never gave Mr. West authority or instructions to transmit notices of accidents occurring to people that were insured under policies written by the plaintiff in error, said:

“He was never employed on a salary to act. We received business from him; he was a representative to that extent. I received this policy from him, and I won’t state positively that we did not possibly receive some other policy. * * * ipjjg fact of the business is, under that transaction, X should think Mr. West would give us notice if he had learned anything about an accident, whether he had learned it from them or not. I don’t think there is anything extraordinary in the fact that W. C. Robertson & Co. went to him to notify him; I would expect it.”

If, therefore, it was essential to the right of the defendant in error to recover in this case that he show a compliance with the provision of the policy sued on with respect to notice of the accident in question, prior to the service of citation in the suit, and that such compliance depended upon showing that Guy C. West or Guy O. West & Co., was an agent or representative of the plaintiff in error upon whom such notice could be served, then we think the evidence under the statute referred to was sufficient to warrant the conclusion, as reached by the trial court, that such agency existed.

The evidence was sufficient to justify the court’s finding that the assured gave notice to Guy C. AVest of the accident to Washington, the injured employé, in four or five days or a week after it occurred, and the third assignment of error questioning such finding will be overruled.

But the defendant in error contends, in reply to the plaintiff in error’s seventh assignment of error, which asserts that the trial court erred in his conclusion of law, “that notice within the terms of the jiolicy was given the Maryland Casualty Company”; that the requirement of the policy as to notice of the accident was' fully complied with by the notice given at the time of the service of citation. This seems to be the correct view ■of the matter. The undisputed evidence shows that the suit of the.injured employé, Ed AVashington, against the Planters’ Gin Company, was filed on August 25, 1909; that the citation issued in said suit and served on said gin company was handed to Guy C. West on the 27th day of August, and by him •immediately sent to George Willig, general agent of the plaintiff in error, at Waco; that it was received by Willig and Mr. Baker, attorney for the company sent to investigate. ’The court’s findings upon this phase of the ■case are in accordance with the statement of the testimony. We have found no testimony in the record showing a presentation of Ed Washington’s claim to the assured prior to the institution of his suit and service of citation. The question under consideration, in very much the same form as presented here, arose in the case of Grand Rapids Electric Light & Power Co. v. Fidelity & Casualty ■Co., Ill Mich. 148, 69 N. AV. 249, and it was there held that, under a clause in an employer’s liability policy, which extended the insurance to injuries caused to third persons, as in the present case, and provided that the assured, upon the happening of any accident, should give immediate notice in writing of such accident or claim, the assured need not give notice until after a claim for damages has been presented against it by the person injured; To the same effect is the'holding of the Supreme Court of Minnesota in Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286, 65 N. W. 383, 30 L. R. A. 689. ■

Again, the policy in the case, while it does provide that immediate notice of any accident and of any suit resulting therefrom, must be forwarded to the home office of the insurance company, or to its authorized representative, 'does not expressly stipulate that a failure shall work a forfeiture, and the delay, if any, shown, should constitute no defense to this action, since it appears, we think, that the plaintiff in error received notice in time to make a full investigation, and it does not appear that it has suffered any loss, or injury by reason of the delay. Hope Spoke Co. v. Maryland Casualty Oo., 102 Ark. 1, 143 S. W. S5, 38 L. R. A. (N. S.) 62, Ann. Cas. 1914A, 268.

The fourth and fifth assignments of error raise the same question and are presented together. The contention is that the court erred in its fourth finding of fact, which is as follows:

“The said Ed Washington had been employed to work during the ginning season, which would actively begin about the 20th of August, and at the time of his injury was engaged in repairing the roof of the building by painting the same to protect it from rust and leaking, which said employment was proper in preparing said gin for operation during the ginning season, which must be done before active operations begun, and was an ordinary repair in gin work.”

It is claimed that this finding of the court is error,

“because the undisputed evidence in this case shows that the negro at the time and place in question was engaged in the painting of a certain corrugated iron roof for the purpose of preserving same only, and that the undisputed evidence and all the evidence was to the effect that such a roof should and would have properly been painted when new, and that there was no defect therein to repair; and because all the evidence and the undisputed evidence shows that his work was not pressing or ginning cotton, or bookkeeping, or making ordinary repairs as contemplated by the terms and provisions of the policy sued on, and such finding is therefore unsupported and unwarranted by the evidence and in direct conflict therewith.'”

The polity indemnified the assured against—

“loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered while this policy is in force b'y any employé or official, or employes and officials, of the assured, while the said employés or officials are engaged in the occupations connected with the business of cotton ginning, pi-ess-ing, and bookkeeping, including ordinary repairs when made by the regular employés of the assured.”

This language of the policy insured against injuries to employes of the assured not only while engaged in ordinary repair and gin work, but while “engaged in occupations connected with the business of cotton ginning, cotton pressing, and bookkeeping.” If, therefore, it could be said that the injured employé, Ed Washington, at the time he received his injuries, was not engaged in ordinary repair work, within the meaning of the policy, still it occurs to us that at such time he was engaged in an occupation connected with the business of cotton ginning. But we believe the evidence shows that the work being done by Washington was repair work within the terms of the policy. The principal testimony bearing upon the character of work Washington was doing at the time he fell from the roof of the house and was injured is that of G. T. Green. This witness, in this connection, testified:

“I remember the occasion of Ed (Washington) getting hurt down there at the gin. * * * At that time I had him painting the roof of the gin. My object in painting' the roof of the gin was to preserve it. It was a painted, corrugated-iron roof, and it is necessary that we paint those roofs every two or three years in order to preserve them, in order to keep holes from coming in them. Part of the roof was becoming in holes, and I had had a man up there on the west end of the roof painting and patching it. % ⅜ ⅜ After the ginning starts you do not then have time to work on the roof or paint it. ⅜ ⅜ * Ed was on the east end and painting that part of the roof. At that time we had been at work around the gin there for about three or four weeks, piping, doing general repair work, unloading coal, and painting the gin roof. We were doing this repair work around the gin in order to get the gin in proper running order for the season, which was necessary. The ginning season in this country usually begins about the 20th of August, hardly ever later than the 20th of August or before the 15th. It is absolutely necessary that you repair a gin before you begin to operate it, because at the end of every season, when you close down, the gin has then run to its limit — that is, just about its limit — unless it has repairs, and you have got to repair it. In repairing our gin down there in 1909, in my judgment, it was absolutely necessary that we do something to the roof.”

The trial court correctly held that Washington, at the time he fell from the roof, was painting the same to protect it from rusting and leaking, and that such painting constituted “an ordinary repair in gin work.” The word “repairs” is defined in Bouvier’s Law Dictionary, Rawle’s Third Revision, in part as follows: “That work which is done to property to keep it in good order.” Fidelity & Casualty Co. v. Lone Oak Cotton Oil & Gin Co., 35 Tex. Civ. App. 260, 80 S. W. 541; Iloven v. Ass. Corpor., 93 Wis. 201, 67 N. W. 46, 32 L. R. A. 388.

The policy of insurance sued on does not refer to the application therefor; is not in terms made a part of the contract; it does not recite that it was issued in consideration of the representations made in the application, but solely in consideration of the premium paid. These things being true, the application is not to be considered in construing the contract or referred to in any wise for determining the terms or conditions thei-eof. Merchants’ Ins. Co. v. Dwyer, 1 Posey, Unrep. Cas. 441; Queen Ins. Go. v. May, 35 S. W. 829; Goddard v. Ins. Co., 67 Tex. 69, 1 S. W. 906, 60 Am. Rep. 1. If, however, the application for the insurance in the present case should be looked to for determining the contract of the parties, we think there is nothing in it that would require a different conclusion, from the one we have reached in reference to the nature of the repairs Washington was making when injured.

The next contention of the plaintiff in error is that “the court erred in its first conclusion of law,” which is as follows:

“I conclude that under the policy the accident to Ed Washington was covered by the policy, and that the Maryland Casualty Company are bound to hold W. O. Robertson & Go. harmless from the payment of the judgment obtained and of the costs and expenses, including attorney’s fees incurred, together with interest on said several items from the times of payment at the rate of six per cent, per annum.”

It is asserted that this conclusion of the-court is error, because,

“under the undisputed evidence in the case, the plaintiff in error was not obligated, by the terms of the contract in suit, to pay W. O. Robertson & Go., or to hold them harmless from the judgment obtained against the Planters’ Gin Company by Ed Washington,”

for that the undisputed evidence shows that at the time of the accident to Washington he-was employed by and working for the Planters’ Gin Company, a Texas corporation, and that liability on account of the accident, if any, as a matter of law fell upon said corporation. The main proposition advanced under this assignment is:

“A liability policy which by its terms agrees, to indemnify a partnership from liability imposed by law upon the partnership for damages on account of bodily injuries accidentally suffered while said policy is in force by .an employé of such partnership, does not indemnify such partnership, or the members thereof, against loss-for injuries suffered by an employé of a corporation in which they are stockholders.”

The assignment under the facts shown is not, we think, well taken for more than one reason. The evidence shows that the-policy sued ou was made payable to W. O. Robertson & Co., and it is sufficient to show that, while the Planters’ Gin Company was a corporation, it was in fact owned and dominated by the said Robertson & Oo.,. a copart-nership. It appears that W. C. Robertson & Ci>. owned practically all the stock in the Planters’ Gin Company, and sold the same, with all its properties, to farmers at the town of Jesse, in Hill county, and obligated themselves in the transaction to satisfy the judgment that should he obtained by Ed Washington against said Planters’ Gin Company on account of the injuries received by him in falling from the roof of said company’s gin house. It further appears that Washington recovered a judgment against the Planters’ Gin Company, and that Robertson & Co. paid off and satisfied said judgment. There is pinned to the face of the policy sued on what is termed a “-rider,” which is dated December 10, 1908, and reads thus:

“Notice is hereby accepted that the gin plants named under this policy are owned and operated by W. C. Robertson of Hillsboro, I-Iill county, Texas, who does business under the firm name of W. C. Robertson & Co. Said gin plants being named and designated as follows under the policy: The Planters’ Gin Co. of Jesse, Texas. The Garrison Gin Co. of Hillsboro, Texas. The Robertson Gin Co., Texas.”

The testimony showing that W. C. Robertson & Co. owned practically all the stock of the Planters’ Gin Company, and that they sold the same, together with all the properties of the company, and obligated and bound themselves to pay off and satisfy any judgment that Ed Washington might obtain against the Planters’ Gin Company on account of the injuries sustained in falling from said company’s ginhouse, and further showing that they have fulfilled said obligation, we think they were subrogated to the rights of the Planters’ Gin Company, if any it had, and could maintain this suit. Rut, however this may be, the contract of insurance having been made with Robertson & Co., they were authorized, we think, to maintain this suit, even though the beneficial interest in the policy was in another. This view, we think, is clearly sustained by the decision of our Supreme Court in Allison, Bailey & Co. v. Ins. Co., 87 Tex. 595, 30 S. W. 547. The facts in that case are not identical with the facts in the case at bar, but they are sufficiently similar to make the principle enunciated therein applicable. The suit was upon an insurance policy contract. Allison, Bailey & Co. were the payees in the contract, and brought the suit. At the time of the suit they had no interest in the proceeds of the policy, but same belonged to S. N. Allison. The right of Allison, Bailey & Co. to maintain the suit was challenged, and the case having reached the Supreme Court on writ of error, Mr. Justice Brown, speaking for the court, said:

“It is a general rule, applicable to all written contracts, that he who has the legal title may maintain an action upon it, notwithstanding another may have the equitable right to the* proceeds of it when collected. Thompson v. Cartwright, 1 Tex. 87, 46 Am. Dec. 95; McMillan v. Croft, 2 Tex. 397; Knight v. Holloman, 6 Tex. 153; Wimbish v. Holt, 26 Tex. 674; Col) ins v. Bank, 75 Tex. 254, 11 S. W. 1053. This court has applied this rule to actions upon policies of life insurance. Ins. Co. v. Williams, 79 Tex. 633, 15 S. W. 478; Cheeves v. Anders (87 Tex. 287, 28 S. W. 274, 47 Am. St. Rep. 107] decided at the present term. There is no difference between the rights of the legal holder of this character of contract and any other to sue upon it; there can be no difference between the payee in a policy of this kind and a contract of life insurance. In Insurance Co. v. Williams, the court, in passing upon a similar question, said: ‘The question thus raised is not one of ultimate right to the money to be recovered, but of right of appellee to maintain the action; and it has been held in many cases, under policies like that involved in this case, that the person named by the assured and insurer in the policy as the person to whom the sum secured by the policy shall be paid may maintain an action on the policy without inference to the interest of such person in the life of the assured.’ In the same case the court, quoting from Insurance Co. v. Baum, 29 Ind. 240, said: ‘It is not for the insurance company, after executing such a contract and agreeing to the appointment so made, to question the right of such appointee to maintain the action. If there should be a controversy as to distribution among the heirs of the deceased of the sum so contracted to be paid, it does noBconcem the insurer. , The appellant contracted with the insured to pay the money to the appellee, and upon such payment being made it will be discharged from all responsibility.’ ”

There is no controversy here between the Planters’ Gin Company and W. C. Robertson & Co., as to who is entitled to the proceeds of the policy sued on. The case presented is one where the plaintiff in error, for a consideration paid, agreed to insure against losses that should be sustained on account of injuries received by employes working at the Planters’ Gin Company, and by its consent W. C. Robertson & Co., were named in the contract of insurance as the ones to whom the money should be paid. As argued by defendant in error’s counsel, to permit it now to say that it will not pay them will, in effect, be to allow it to deny any liability whatever. The real situation was that Robertson & Co. practically owned the Planters’ Gin Company. The testimony does not definitely show it, but it is probable that G. T. Green held one share of the stock of the company, but, in the event of loss, the real parties to suffer thereby would be Robertson & Co. There is no contention made by the pleadings that any fraud was practiced with respect to the ownership of the Planters’ Gin Company, whereby plaintiff in error was caused to make the policy payable to W. C. Robertson & Co. The cases cited by plaintiff in error are clearly distinguishable in their facts from the case before us, and do not control .a decision of the question.

The seventh and eighth assignments of error have been disposed of against the plaintiff in error by what we have already said and need not be further considered. We believe the judgment of the district court should be affirmed, and it is so ordered.

Affirmed.
      (SssRor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    MISSOURI, K. & T. RY. CO. v. HICKS.
    (No. 1802.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 3, 1917.)
    Assignments <@=>129 — Action—Parties.
    Though plaintiff has assigned to his attorneys an interest in his cause of action for personal injury, they need not be made formal parties plaintiff; they filing a pleading that they are representing plaintiff on the trial, and agree to he bound by any judgment, as though formal parties.
    [Ed. Note.' — For other cases, see Assignments, Cent. Dig. §§ 213-219.}
    Appeal from District Court, Hunt County; M. I-I. Garrett, Judge.
    Action by W. J. Hicks against the Missouri, Kansas <& Texas Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The action is for damages for personal injuries to the appellee, who, while a passenger on appellant’s passenger train, was suddenly thrown forward against the seat in the coach and thereby sustained injuries. The verdict of the jury involves the finding of fact, which has sufficient evidence to support it, that ap-pellee’s injuries were proximately caused by the negligence, as alleged, of appellant’s employes operating the train. The amount of the verdict is warranted by the evidence.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Chas. C. Huff, of Dallas, for appellant. Evans & Shields, of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above). By the first assignment of error it is insisted that the attorneys representing appellee, who have a contractual interest in the subject-matter in suit, are necessary parties to the suit, and that it was error on the part of the court to overrule appellant’s plea in that respect. It is believed that the instrument in evidence may he construed only as an assignment of an interest in the cause of action itself. Railway Co. v. Ginther, 90 Tex. 295, 72 S. W. 166. But the attorneys holding the assignment of an interest in the cause of action as such, and who were present representing their client in the trial of the case, filed a pleading in part as follows:

“And the attorneys mentioned and named in said contract are now hero representing the plaintiff upon the trial of this cause, and are insisting that the cause be tried upon its merits, and they now here agree to be bound by any judgment that may be rendered in this cause in favor of either of the parties to the suit, as though they were formal parties to the same.”

And the said attorneys appear in this court and ask the affirmance of the judgment as it is rendered. In these circumstances, as ruled' in Bonner v. Green, 6 Tex. Civ. App. 96, 24 S. W. 835, the attorneys should be held as consenting that the judgment shall determine their rights, as well as those of their client. The attorneys should, we think, have been made formal parties of record to the suit; but we have concluded to follow and apply the Bonner Case above to the same question here made. The assignment is overruled.

Error is predicated by the third and fourth assignments of error upon the answer of a witness to certain questions propounded respecting the physical condition of the plaintiff. The answer of the witness was objectionable from a strictly technical standpoint, but it is concluded that reversal of the judgment would not be warranted on the ruling complained of.

There was no error, it is thought, in admitting the evidence complained of in the second and fifth assignments of error.

The judgment is affirmed.
      <g=>ffor other cases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes