author: LEVY, J.

text:
    ADAMS v. THOMPSON.
    (No. 1804.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 23, 1917.
    Rehearing Denied June 14, 1917.)
    Vendor and PURCHASER &wkey;>334(6) — Recovery oe Purchase Money — Failure to Oonvey.
    Where plaintiff paid money to a brokerage company, which received it as defendant’s agent and with his knowledge, as part of the price for purchase of defendant’s land, which defendant refused to convey, plaintiff could recover from defendant the ¿mount paid.
    [Ed. Note. — Bor other eases, see Vendor and Purchaser, Cent; Dig. §§ 963, 973-975.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by E. B. Thompson against W. T. Adams. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The action is by appellee against appellant to recover the sum of $2,500. The petition alleges that the plaintiff paid the defendant the sum of $2,500 as part payment for 160 acres of land agreed to be conveyed to plaintiff, and that the defendant has not executed a deed to the land, and, though requested, has refused to refund or repay the money so paid to him by the plaintiff. The defendant denied the allegations. There was a trial before the court without a jury. The court made the following findings of fact and conclusions of law.
    “(1) I find that some time during the latter part of November, or the first part of December, 1913, the defendant, W. T. Adams, listed certain land owned by him in Cameron county, Tex., with the Southern Land Company to sell ■for him, and that thereafter on the 22d day of December, 1913, said company, acting as the drily authorized agent of the defendant, entered into a written contract with plaintiff whereby it agreed to sell him 160 acres of land out of the tract belonging to the defendant which he had listed with said company for sale; the terms of said sale being fully set forth in the written contract offered in evidence by the plaintiff.
    “(2) I further find that the Southern Land Company, in making said contract, was acting for and on behalf of defendant as his duly authorized agent, and that said defendant was fully informed of said contract, knew its terms, and agreed and assented thereto.
    “(3) I further find that, while the Southern Band Company was negotiating the sale of defendant’s land to plaintiff, the defendant was present and knew that said company and its agents were attempting to sell said land for and • on his behalf to plaintiff.
    '“■(4) I further find that, after said written contract was entered into to sell plaintiff 160 acres of land belonging to defendant, the defendant was fully advised and informed of all the terms and conditions of said written contract and agreed to, acquiesced in, assented to, and fully-ratified the same.
    “(5) I further find that thereafter on, to wit, the - day of January, 1914, the Southern Land Company received the sum of $2,500 of plaintiff’s money as part payment of the pur- . chase money due the defendant herein under the written contract made for and on his behalf by his agent, the Southern Land Company.
    “(6) I further find that the Southern Land Company received said money from the plaintiff as the agent of the defendant herein, and that on the 24th day of January, 1914, said company paid to the defendant the said sum of $2,500 which it had received from plaintiff under the written contract of purchase aforesaid, and that at and before the time said money was paid to the defendant he was fully informed that the same had been received from plaintiff as part of the purchase money for the 160 acres of land described in said contract which belonged to defendant, and. that said defendant received the same as a partial payment of the purchase money under said contract.
    “(7) I further find that plaintiff was ready and willing at all tipies after the execution of said written contract to comply fully with the terms thereof, and offered and tendered to the defendant full compliance therewith, and demanded that the defendant execute and deliver to him a deed to the land described in said contract according to its terms; but that defendant failed and refused to execute said deed to plaintiff, or to in any way comply with the terms of said contract.
    “(8) I further find that after defendant’s refusal to deed plaintiff the land described in said written contract, or to in any way comply with its terms, plaintiff demanded of defendant the return of the purchase money paid him under said contract; but that defendant refused to repay plaintiff said sum of $2,500 and converted the same to his own use and benefit.
    “(9) I further find that on the 24th day of March, 1915, a writ of attachment was duly and legally issued at the instance of the plaintiff and levied upon certain lands situated in Cameron county, Tex., belonging to the defendant herein, the same being fully described in the sheriff’s return on said writ of attachment, and that said writ was duly levied by the sheriff of Cameron county, Tex., on said land on the 25th day of March, 1915.
    “Conclusions of Law.
    “1. I conclude that plaintiff is entitled to recover of the defendant the sum of $2,500 paid by him as part of the purchase money of the land which he contracted to buy, together with 6 per cent, interest thereon from January 24, 1914, and for a foreclosure of his attachment as prayed for.”
    Thompson & Thompson, of Greenville, for appellant. Geo, S. Perkins and Clark & Led-dy, all of Greenville, for appellee.
   LEVY, J.

(after stating the facts as above). If the facts found by the trial court covered all the material issues, and such facts are warranted by the evidence, then it may not' be said, it is thought, that the judgment entered in the case was legally erroneous. And it is believed that the findings made by the court are supported by and covered the material issues of the evidence. Therefore the assignments of error challenging the findings and judgment of the court, as well as assignment of error No. 28, should, it is concluded, be overruled.

The suit is not for specific performance of a contract of sale, nor for damages for the breach thereof. Appellee sought to recover $2,500 paid appellant as part of the purchase money under the written contract to purchase 160 acres of appellant’s land. And it is believed the court did not err in overruling the exceptions to the plaintiffs trial amendment and supplemental petition as complained of by appellant. The assignments of error in this respect are overruled.

The court did not, it is concluded, err respecting the evidence complained of in the fourth, sixth, eighteenth, nineteenth, and twenty-seventh assignments of error. And the evidence complained of in the nineteenth and twentieth assignments of error would not sufficiently warrant a reversal of the judgment.

Judgment affirmed.
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source: Caselaw Access Project

author: WILLSON, O. J.

license: Public Domain

text:
    TEXAS & P. RY. CO. v. WILLIAMS.
    (No. 1777.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 17, 1917.
    On Motion for Rehearing, June 21, 1917.)
    1. Appeal and Error &wkey;>882(12) — Invited Eeeoe — Insteuction.
    In a servant’s action for injuries, defendant requested the court to charge that, if the jury believed the foreman was negligent in having the machine which injured plaintiff run with rapid feed, and thereby caused it to choke up, and necessitated the taking off of the band, and that in putting the band on plaintiff was injured, the jury would find for plaintiff if the clogged condition of the machine was thé proximate cause of plaintiff’s being injured by the band striking his leg. The court charged that, if the jury believed that plaintiff was engaged in the operation of a planing machine for defendant, and that the equipment of the machine was defective in not being equipped with a slow feed, and that it was negligence on defendant’s part to furnish a machine to plaintiff to do the particular work in such defective condition, and that the negligence was the proximate cause of plaintiff’s injury, the jury should find for plaintiff. _ Held, that any error in the charge as given was invited by the defendant’s request.
    [Ed. Note. — Eor other cases, see Appeal and Error, Oent. Dig. § 3602.]
    2. Damages <&wkey;132(6) — Pebsonal Injuries— Excessive Verdict.
    Where a servant 62 years old, earning about $100 a month, had the large and small bones of his leg between the knee and the ankle broken, but the broken parts of the large bone united properly, and the testimony indicated that the union between the broken parts of the small bone, while imperfect at the time of the trial, might in the course of time become so nearly perfect as to restore the effective use of the leg, the testimony also indicating that the most serious consequence of the injury would be a permanent slight shortening of the leg. verdict for $17,500 was excessive by $7,500.
    [Ed. Note. — Eor other cases, see Damages, Oent. Dig. § 377.]
    On Motion for Rehearing.
    3. Trial <&wkey;274 — Objection to Chaege — Withdrawal -or Request.
    » Where defendant’s objection to an improper instruction, the error in which it had invited by a request, was made after defendant made the request, the objection should have been accompanied by a withdrawal of the request.
    [Ed. Note. — Eor other cases, see Trial, Oent. Dig. § 687.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Suit by Ike Williams against the Texas & Pacific Railway Company. Erom a judgment for plaintiff, defendant appeals.
    Judgment reformed, and affirmed conditionally on plaintiff’s filing a remittitur.
    Appellee had his leg broken while operating a planing machine, in the discharge of duty he owed to appellant as its employe. The machine was constructed to dress pieces of timber of carrying dimensions, at the rate of either 20, 30, or 40 feet per minute; its speed being regulated by pulleys provided for the purpose. The pulleys were not permanently fixed to the machine, but were attachable to it. At the time he was injured appellee was using the machine to dress a piece of timber 6 by 9 inches at its largest end and 5% by 8% inches at its smallest end down to 5 by 8 inches. In doing this work, to avoid a “choking” of the machine, it should have been operated at its slowest speed. Some time before the accident occurred, however, the practice of changing the pulleys so as to conform the speed of the machine to the character of the work it was to do was discontinued, and appellee was directed by the foreman to operate the machine at its highest speed, without reference to the character of such work. As a result of the rapid speed at which the machine was being operated at the time appellee was injured, it choked, and it became necessary to stop the parts thereof which fed the piece of timber to the knives. This was done by removing a belt from two pulleys on which it revolved. The belt was removed by one of appellant’s employés, who, as a “helper,” was assisting appellee in the operation of the machine. The choked condition of the ma-' chine having been relieved, appellee’s helper undertook to replace the belt on the pulleys.
    “In putting it back on,” ’appellee testified, “he let it slip out of his hand, and when he did the pulley next to me caught it and just wound it up, and it was slapping over and slapping me, and hit me about a hundred times, I suppose; don’t know just how many times it hit me, but it hit me lots of times and knocked me down. It hit me all the way from my ankle to my knee and on the knee. It split the bone of my leg this way, diagonally across.”
    Appellee brought this suit, alleging that appellant was guilty of negligence rendering it liable to Mm in damages for tlie injury lie suffered. The negligence, lie averred, consisted of: (1) Appellant’s failure “to provide proper and suitable tools and appliances with which to do and perform the work at hand”; (2) “the manner in which the belt was thrown off and on” ; and (3) “attempting to run timbers of the size and proportion through the machine as then regulated for operation.” Appellant’s answer consisted of a general denial, pleas of “assumed risk” and “contributory negligence” on appellee’s part, and a plea that the injury to him was the result of the accident merely.
    The appeal is from a judgment in appel-lee’s favor for $17,500.
    F. H. Prendergast, of Marshall, for appellant. Beard & Davidson, of Marshall, for ap-pellee.
   WILLSON, O. J.

(after stating the facts as above). The jury were not authorized by the charge to find for appellee, unless they did so in accordance with instructions as follows:

“If you believe from the evidence that on or about the 6th day of November, 1915, as alleged in plaintiff’s petition, Ike Williams, the plaintiff, was engaged in the operation of a planing machine for the defendant, and that the equipment of said machine was defective in not being equipped with a slow feed, and if you believe that it was negligence on the part of defendant to furnish the machine to plaintiff to do the work then at hand in such defective condition, if it was defective, and that such negligence, if any, was the proximate cause of the injury to plaintiff, then you will find for the plaintiff.”

In support of its first assignment appellant insists that the instructions just set out were erroneous, because it appeared it asserts that, if it was guilty of negligence in failing to equip the machine with “a slow feed,” its negligence was a remote, and not a proximate, cause of the injury to appellee. We do not feel called upon to determine whether it so appeared or not; for, if it did so appear, and if the instructions therefore were erroneous, we think appellant should not be heard to complain of the error. It will he noted that the .jury were authorized by the instructions complained of to find for appellee only in the event they believed that appellant was guilty of negligence in failing to equip the machine with a slow feed, and further believed that its negligence in that respect was the proximate cause of the injury to him. Appellant, in effect, asked the court to so instruct the jury when it requested a charge (refused by the court) as follows:

“If you believe that the foreman was negligent in having the machine run with rapid feed and thereby caused it to choke up and necessitated taking off the band, and that in putting the band on the plaintiff was injured, then you will find for the plaintiff, if you believe that the clogged condition of the machine was the proximate cause of plaintiff being injured by the band striking Ms leg.”

The charge requested, like the one given, though in different language, predicated negligence on the failure of appellant to equip the machine with a slow feed, and, like the one given, authorized a finding that such negligence was the proximate cause of the injury to appellee. By the charge refused the clogged condition of the machine was referable only to the rapid rate of speed at which the machine was operated. So it in effect was a request ‘by appellant to submit to the jury the issue the court did submit to it as to whether the negligence of appellant in failing to equip the machine with a slow feed was the proximate cause of the injury to appellee or not. Appellant, we think, is in the attitude of having invited the error, if it was one, and under a well-settled rule is not entitled to here urge the error as a reason why the judgment should be reversed. Railway Co. v. Sein, 89 Tex. 63, 33 S. W. 215, 558; Oil Co. v. Hanna (Sup.) 173 S. W. 644; Railway Co. v. Flanders (Sup.) 179 S. W. 263; Sanford v. Railway Co., 143 S. W. 329; Railway Co. v. Murray, 132 S. W. 496; Manufacturing Co. v. O’Neil, 57 Tex. Civ. App. 568, 122 S. W. 900. In the Hanna Case Chief Justice Brown quoted as a correct statement of the rule the following from the opinion in the Sein Case:

“The question now before the court is, in substance, if in the course of a trial counsel requests the court to give an instruction to the jury, which is refused, but which in whole or in part is embraced in the charge of the court, can the counsel, or the party for whom he acts question the correctness of the charge given by the court in so far as it conforms to the request made? This question has often been before appellate courts, and has uniformly, so far as we are able to find, been held against the right 'of a party or Ms counsel, upon appeal, to call in question a ruling of the trial court which was •made at Ms suggestion; and it has been generally held that, when a charge requested, but refused, was embraced in the general charge of the court, any error arising therefrom could not be questioned by the party who requested the charge.”

In the Flanders Case the Supreme Court held, quoting the syllabus:

“In 'a railroad switchman’s action for injuries defendant could not complain of the submission, as a ground of recovery, of its negligence in permitting an engine with a brilliant headlight to stand in the yards, though this was not the proximate cause of the injury, where its own requested charges called for a determination of the same issue of fact.”

Most of the other assignments in the brief are predicated, as the first one is, on the claim that the failure of appellant to equip the machine with a slow feed, if negligence, was not the proximate cause of the injury. They are all overruled, as are the seventh, eighth, ninth, and tenth, in which complaint is made of the refusal of the court to give to the jury special charges therein referred to requested by appellant.

The fifteenth assignment, by which the verdict is attacked on the ground that it is excessive, should, we think, he sustained. Appellee was 62 years of age at the time his leg was broken, and was earning about $100 per month. While both the large and the small bones of his leg between the knee and ankle were broken, the broken parts of the large bone had properly united, and the testimony indicated that the union between the broken parts of the small bone, while imperfect at the time of the trial, might in the course of time become so near perfect as to restore to appellee the effective use of the leg. The testimony also indicated that the most serious consequences to appellee of the injury probably would be a permanent slight shortening of his leg. The judgment, we think, is excessive in the sum of $7,500. If a remittitur of that amount is filed by ap-pellee with the clerk of this' court, within 15 days from this date, the judgment will he reformed and affirmed for $10,000. Otherwise it will be reversed, and the cause will be remanded for a new trial.

On Motion for Rehearing.

Appellant insists this court erred in holding that it was in the attitude of having invited the error (if any) complained of in the trial court’s main charge, and, as showing it was not in that attitude, calls attention to the fact (-which had not been overlooked) that it objected to the part of said charge set out in the opinion -of this court. Whether appellant’s objection was made before or after it requested the special charge set out in said opinion does’not appear from anything in the record, to which alone this court can look. If the objection was made after apXDellant requested the special charge, which presumably (Nagle v. Simmank, 54 Tex. Civ. App. 432, 110 S. W. 862) influenced the trial court to instruct the jury as he did, it should, it seems to us, have been accompanied by a withdrawal of its request to instruct the jury as indicated in the special charge. As the record is presented to this court appellant was in the attitude, it seems; of objecting to an instruction which, in effect, it was at the same time requesting the trial court to give. That this is true is shown by the motion for a new trial in which appellant while complaining of the action of the court in overruling its objection to the part of the main charge specified above, without a suggestion as to why it should be heard to do so, also complained of the action of the court in refusing to give the special charge. Railway Co. v. McDonald, 85 S. W. 493; Cement Co. v. Young. 140 S. W. 378; Gestean v. Bishop, 181 S. W. 696; Railway Co. v. Smith, 155 S. W. 361; Oil Co. v. Hanna (Sup.) 173 S. W, 644.

This motion is overruled.

HODGES, J., not sitting.
      <S=»For other cases see same topic and KEY-NUÜBBR. in all Key-Numbered Digests and Indexes


author: WILLSON. G. J.

text:
    SCHAFF v. SHEPHERD.
    (No. 1808.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 1, 1917.
    Rehearing Denied June 14. 1917.)
    1. Appeal and Ebeob <&wkey;231(6) — Objection to Hypothetical Question — Sueeicienct.
    An objection that a hypothetical question did not conform to the facts is not sufficiently specific for purposes of review,
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 215.]
    2. Evidence t&wkey;553(2) — Objection to Hypothetical Question — Sueeicienoy.
    That a hypothetical question may have omitted portions of the evidence is not a valid objection since the omitted elements may be incorporated upon cross-examination.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2370.]
    3. Evidence <&wkey;552 — Admissibility — Expert Opinion — Hypothetical Questions.
    A physician’s opinion regarding the cause of a child’s illness, based upon facts stated in a hypothetical question, is admissible.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2368.]
    4. Appeal and Ebeob <&wkey;232(2) — Preservation oe Objections — Evidence—Scope oe Objection.
    Whether a witness’ answer was responsive need not be determined where its exclusion was not requested on that ground.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1430, 1431; Trial, Cent. Dig. § 213.]
    5. Appeal and Ebeob <&wkey;1050(2) — Habmlessi Ebeob — Admitting Evidence.
    In action against a railroad for the death of a 2Ya year old child, caused by poorly heated cars, the admission of evidence that public schools were heated to a certain temperature was harmless error.
    [Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. § 4154.]
    6. Appeal and Eeiiok <®=»1050(2) — Harmless Error — Admitting Evidence.
    Where defendant carrier claimed that a child’s death was due to improper care and not to its poorly heated cars, any error in admitting testimony that the child’s mother gave it as good attention as witness could expect is harmless, especially where witness assisted in caring for the child, and was often with it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4154.]
    7. Evidence <&wkey;474(ll) — Opinion—Cabe op Child — Knowledge oe Witness.
    Testimony that the child was not properly nursed was correctly excluded where the witness saw it only three or four times during a month, and did not know how its mother treated it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2206.]
    8. Death <&wkey;72 — Admissibility oe Evidence.
    Admitting testimony that the child’s mother had no property or means was not erroneous.
    [Ed. Note. — For other cases, see Death, Cent. Dig. § 91.]
    9. Evidence &wkey;553(4)— Opinions —Hypothetical Question.
    A hypothetical question assuming a fact not in evidence is properly excluded.
    [Ed. Note — For other cases, see Evidence, Cent. Dig. § 2373.]

      10. Appeal and Error <S=>1050(2) — Harmless Error — Admitting Evidence.
    Any error in admitting testimony that ordinary people were not as careful as a physician would be about exposing sick children to the weather was harmless.
    [Ed. Note — Eor other cases, see Appeal and Error, Cent. Dig. § 4154.]
    11. Death <®=^31(7) — Action por Causing— Who May Sue.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 469S, 4699, providing that an action for wrongful death may be brought by all the parties entitled to damages, or by any one or more for the benefit of all, a wife separated from her h-usband and unable to locate him may sue for their child’s wrongful death.
    [Ed. Note. — Eor other cases, see Death, Cent. Dig. § 43.]
    12. Death <§=399(3) — Excessive Damages. $2,250 damages held not excessive for the
    wrongful death of a 2% year old boy.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125, 126, 128.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Mrs. Bertha Shepherd against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The appeal is from a judgment against appellant in favor of appellee for $2,250 as damages she was entitled to' because of the death of her son Duncan, due, she alleged, to negligence on the part of appellant.
    Appellee alleged and proved that she and Duncan, then 2% years old, were passengers on appellant’s train which left Atoka, Okl., for Greenville, Tex., at about 1 o’clock of the .morning of December 10, 1915; that the train reached Denison between 3 and 4 o’clock of that morning; that at Denison, as directed by employés of appellant, they changed from the car in the train which carried them there to a car in another train; that the weather was cold; that the car they changed to was not heated, but was cold and disagreeable and continued in that condition until the train got nearly to Greenville two hours later; and that, as a consequence, Duncan contracted a cold and was coughing and sneezing before the train reached Greenville. Appellee alleged that the cold Duncan so contracted resulted in la grippe and pneumonia, which caused his death on January 10, 1916. She charged, as negligence on the part of appellant, a failure by it to discharge the duty it owed to her and Duncan to use care to have the car “warm and comfortable,” and permitting it, instead, to be “cold and disagreeable.” Appellant’s answer consisted of a general denial, and a special plea, among others unnecessary to specify, in which • it alleged that if the child contracted cold while on its train as charged by appellee, it was “slight and temporary” only, and that he “would have been quickly restored to his usual health” had appellee exercised, ordinary care for his comfort and relief. It charged that appellee, instead, negligently failed to exercise such care, but exposed the child “to inclemency of the weather, and traveled with him about the country in a wagon,” etc., and, after being advised that “his condition was serious” and “warned that his disease would prove fatal," “left him alone” and negligently fáiled to seek or secure medical treatment” for him.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Ohas. G. Huff, of Dallas, for appellant. Evans & Shields, of Greenville, for appellee.
   WILLSON. G. J.

(after stating the facts as above). All but 2 of the 12 assignments are predicated upon, the action of the court in admitting testimony offered by appellee and rejecting testimony offered by appellant.

Whether, if the child was made sick by exposure to cold he was subjected to while on the train, such sickness was the sole proximate cause of his death, or neglect on the part of appellee to properly care for him afterwards was also a cause thereof, were issues in the case.

Appellee’s witness Wilbanks, a physician, treated the child during his illness. A hypothetical question calling upon the witness to state the cause of the child’s death was objected to by appellant on the ground that it “did not conform to the testimony in many respects” (which respects appellant did not in its objection and does not in its brief undertake to specify), and on the ground that it was “speculative and conjectural.” The court having overruled the objection, the witness answered, “The child died from pneumonia, took la grippe, and after a period passed into bronchial pneumonia.” Appellee then asked the witness, “What was the cause of the child taking cold and having la grippe?” The question was objected to on the ground that the answer “would be speculative, conjectural, and guesswork.” Before the court ruled on the objection the question was modified by another propounded by appellee, as follows, “Assuming the facts to be true as I have stated them (in the hypothetical question), what would be the cause of the child having the grip?” This was objected to on the same grounds. The objection being overruled, the witness answered, “In cases of pneumonia or la grippe wo seek to get a history of exposure or contact, and getting the histoiy of this child we naturally suspected that the cold was contracted on the trip down here.” It is plain, we think, that appellant has no right to complain here of*the action of the court in overruling its objections on the grounds stated. If the hypothetical question did not “conform to the facts,” appellant in its objection should have specified in what respects it did not conform to the testimony. Dralle v. Town of Reedsburg, 140 Wis. 319, 122 N. W. 771. Moreover, that the question may have omitted elements which appellant thought it should include was not a valid objection to it. Appellant might have embodied such omitted elements in questions to the witness upon cross-examination, and in that way have obtained the opinion of the witness on its theory of the facts of the case. Railway Co. v. Compton, 75 Tex. 667, 13 S. W. 667; Railway Co. v. Greathouse, 82 Tex. 104, 17 S. W. 834; note to State v. Crowe, 18 Ann. Cas. 646; 17 Cye. 242. It is obvious that the questions called for the witness’ opinion as an expert, on the facts stated to him, as to the cause of the child’s illness. We understand such opinions are admissible for whatever the jury may think they are worth as evidence. Whether the answer of the witness to the question last propounded to him was irresponsive or not need not be determined, as appellant did not ask that it be excluded on that ground.

The same witness, over appellant’s objection that it was immaterial and irrelevant, was allowed to testify that he thought “that in the public schools it is required that they be kept at a temperature of from 65 to 70 degrees.” We think the objection should have been sustained and the testimony excluded, but that the erx'or in admitting it is not a reason why the judgment should be reversed. It is not at all probable that it influenced the jury to render a verdict they otherwise would not have rendered.

For the same reason, if we were satisfied it was error under the circumstances shown in the record to permit the witness Frazier to testify, over appellant’s objection that it was the opinion and conclusion of the witness, that while the child was sick ap-pellee gave him “as good attention as he (the witness) could expect any mother to give her child,” we would overrule the assignment presenting that matter. But we are not satisfied the testimony was not admissible. It appeared that the witness and his wife visited appellee as often as twice a day during the time the child was ill and assisted appellee in caring for him. We are inclined to think the testimony was within an exception to the opinion rule, which permits a witness to “summarize human conduct by stating the effect which it produced on his mind.” 17 Cyc. 95; Wilson v. Railway Co., 18 R. I. 598, 29 Atl. 300; Myers v. State (Cr. App.) 39 S. W. 111.

We do not think there was inconsistency between the act of the court in admitting the testimony just referred to and his act in excluding the testimony of the witness Rand offered by appellant, that the child was not properly nursed and attended to, but was neglected during his last sickness. It appeared from Land’s testimony that he saw the child only three or four times during the month intervening between the time he reached Greenville from Oklahoma and his death, and knew nothing about how appellee treated him.

It was not error for the court to permit appellee to testify that she did not “have any means or property of any character.” Railway Co. v. Vaughn, 23 S. W. 745; Railway Co. v. Younger, 90 Tex. 387, 38 S. W. 1121; Railway Co. v. Washington, 24 Tex. Civ. App. 422, 58 S. W. 1042.

Nor was it error to sustain appellee’s objection to the hypothetical question propounded by appellant to its witness Dr. McBride. There was no testimony showing the child was left unattended “for a considerable length of time” while he was suffering with pneumonia.

If the testimony of Dr. Cantrell complained of in appellant’s eighth and ninth assignments, that ordinary people frequently were not as careful as a physician would be about exposing sick children to the weather, should have been excluded, we think the error in admitting it should be treated as harmless.

The contention made that the judgment “is not a final judgment or a valid judgment” is on the theory that G. B. Shepherd, who was appellee’s husband and the child’s father, was not a party to the suit so as to be bound by it. In her petition appellee alleged that she and her said husband “separated practically three years” before the time when the child was made sick as charged by her, and that his whereabouts was unknown to her, and further alleged that she then had a suit for a divorce from him pending. She prayed “that she be permitted to prosecute this suit in her own name and for her own benefit” and for the benefit of her said husband “in so far as he may have interest in this cause of action.” The jury found that she alone was entitled to recover of appellant on account of the death of tho child, and judgment accordingly was rendered in her favor, and that her husband take nothing by the suit. We think the contention is without merit. The statute provides that such an action shall be for the sole and exclusive benefit of the surviving parents, and—

“may be brought by all of the parties entitled thereto, or by any one * * * of them for the benefit of all.” Articles 4698 and 4699, Vernon’s Statutes.

We do not think the verdict was excessive. Railway Co. v. Cullen, 29 S. W. 256.

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

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


author: PHEASANTS, C. J.

text:
    ATTERBURY v. HORTON & HORTON.
    (No. 7387.)
    (Court of Civil Appeals of Texas. Galveston.
    May 11. 1917.
    Rehearing Denied June 21, 1917.)
    1. MASTER AND SERVANT <&wkey;201(4) — ÜNSAEE Condition oe Place oe Work — 'Vice Principal.
    If, .through a fellow servant’s negligence, bricks were piled around the edge of a manhole in which a bricklayer was working, creating danger of his being injured by falling brick, the employers would be liable if such dangerous condition of the premises was discovered by. their foreman, who was their vice principal, in time to have it remedied by the use of ordinary care before the bricklayer was injured as a result thereof, and the foreman failed so to do.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 524.]
    2. Master and Servant &wkey;>286(27) — Injuries — Questions eor Jury.
    Where a bricklayer working in a manhole was struck by falling brick claimed to have fallen from brick negligently allowed to be piled too near the edge of the manhole, evidence held to make the master’s negligence a question for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1032.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by A. T. Atterbury against Horton & Horton. From judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Woods, King & John, of Houston, for appellant. Andrews, Streetman, Burns & Logue, of Houston, for appellees.
   PHEASANTS, C. J.

This suit was brought by appellant against appellees to recover damages for personal injuries which plaintiff alleges were caused by the negligence of the defendants. The petition alleges, and the evidence shows, that, while in the employment of defendants in the capacity of a bricklayer and engaged in laying brick in an excavation in a street of the city of Houston along which defendants were constructing a sewer for said city, plaintiff was injured by a brick which fell into the excavation and struck him.

The following are the grounds of negligence alleged in the petition:

“(a) In failing and refusing to furnish plaintiff with a reasonably safe place to work and perform his duties.
“(b) In failing and refusing to place a proper guard around said hole to prevent brick or other .substances from slipping, rolling, or falling in and injuring plaintiff.
“(c) In permitting and placing, or causing to be placed, large quantities and numbers of brick on the planks over one side of said hole, and in close and dangerous proximity to the edge of said plank over said hole, and in permitting and placing, or causing to be placed, large quantities of brick around the edge of said hole in close and dangerous proximity thereto, from which said plank or from the edge of said hole one of the said brick either fell, slipped, or rolled into said hole and struck plaintiff and injured him, as above alleged.
“(d) In placing, and causing or permitting to be placed, brick one upon the other around said hole and on said planks, so high until one of them fell, slipped, or rolled off and injured plaintiff as aforesaid.
“(e) In failing and refusing to provide a safe means of lowering the brick, which plaintiff was required to lay and place, from the surface to the bottom of said hole.”

The defendants answered by general demurrer, special exceptions, and general denial, and further specially pleaded that plaintiff’s injury was the result of an unavoidable accident, that plaintiff assumed the risk of such injury, and, if the injury was^ due to the negligence of any one, it was the* negligence of a fellow servant of plaintiff.

After hearing the evidence, the trial court instructed the jury to find a verdict for the defendants, and, upon the return of such verdict, judgment was rendered in accordance therewith.

Under an appropriate assignment of error, the appellant complains of the charge instructing the jury to return a verdict for the defendants. The first proposition submitted under the assignment is as follows:

“The evidence being sufficient to justify the jury in finding that defendants’ vice principal knew that bricks were piled in close proximity to the edge of the platform under which plaintiff, a servant of defendant, was at work, and that danger existed of one or more such bricks being jarred or knocked off of such platform and falling on plaintiff and injuring him, in time to have either warned the plaintiff or to have had such danger remedied before any such bricks should fall off, or be jarred or knocked off of such platform, at the risk of injury to plaintiff, and plaintiff having actually suffered injury as a result of a brick falling from the said platform, and no affirmative defense being established by undisputed evidence, it was error for the trial court to instruct the jury peremptorily to find in "favor of defendants.”

The excavation in which plaintiff was working was 30 or 35 feet deep and 20 feet in diameter. At the time of his injury, he was 8 or 10 feet from the bottom of the excavation engaged in the work of walling it up with brick. The brick used in the work was passed to him by a fellow servant, who lowered them in a bucket attached to a rope. The man who lowered the brick stood on a platform made of several large pieces of lumber laid across the top of the hole. This platform extended from the center of the hole to within a short distance of the edge of one side of the hole. The brick were lowered from the side of the platform over the center of the hole. At the time plaintiff was struck, he was working on the side of the hole near which the platform before mentioned was laid, and was seven feet or more from the center of the hole where the brick were being lowered as before stated. There was a pile of several thousand brick about 25 feet from the edge of the hole. By the method in which the work was usually carried on, one or more of defendant’s employes would take brick in a wheelbarrow from the pile before mentioned to within a few feet of the hole, and from these brick would fill the bucket used by the man who lowered the brick in the hole and pass it to him. All of the employés engaged in this work were instructed not to pile brick on the platform or nearer than 5 or 6 feet from the edge of the hole.

Plaintiff testified:

“At the time I was struck, I guess I was standing about two feet or two feet six inches from the side of the hole, to the best of my recollection. That would throw me then about seven feet six inches, or something like that, from the center of the hole. I had just asked the time at 20 minutes past 4 on a Saturday time, and no sooner asked the time than I was knocked down; that was in the afternoon, on Saturday. The brick 1 was laying down there would be passed down. There would be a negro on top. That negro would stand right dead in the center of the hole. It is the hole around here (indicating), and he would stand right in the center here; he was letting the brick down in a bucket. He stood right in the center. He would get in the center of the hole. There was a few planks laid across one side of it, and he stood in the center of the hole and let the brick down in a bucket. Ho got the brick by the negroes on the top bringing them to him. They got the brick about 25 or 35 feet away from the hole. There were no bricks piled close to that hole or on those planks when I went down there at 1 o’clock. When I went down there at 1 o’clock, they were 25 or 30 feet away from it. I did not get out of the hole from 1 o’clock until the time the brick fell on me, when I was injured. A man by the name of Mr. Farrell (Fahr) customarily stayed up on top of the surface around that hole and directed the placing of the brick. He was the foreman. * * * It was his business to discharge and employ the men on top of the ground. I say when I went down there at I o’clock there wasn’t any brick nearer than 25 or 30 feet to the edge of the hole, at two or three minutes to 1 there wasn’t. Mr. Farrell was there when I went down. I spoke to him several times during the afternoon. To the best of my recollection, it was a little after 4 o’clock, a •quarter past 4, or something like that, I spoke to Mr. Farrell (Fahr) before this accident. I would say it was 5 or 10 minutes before the accident occurred. I hear Mr. Farrell (Fahr) talking on top of the ground. * * * A bricklayer by the name of E'tie was down there with me. That brick struck me right on the left side just about above my hip, almost to the center of my back. It knocked me out. That is all I remember of it right then until I came to, above the hole. I was carried out of the hole by Farrell and Mr. Etie, the brick mason. Those two men carried me out of it. I was unconscious and didn’t know anything until I got up. They told me afterwards who carried me out. All I can remember doing after the brick struck was rolling on the planks I was working on. When I came to, regained consciousness, the first thing I remember I was in the little tent on the right •of the hole, right against that negro church there, and he turned to me and said, ‘Just wait a minute, Atterbury, and we will send for a hack for you,’ and as I came out of the tent— they pulled the clothes on me the best they could and carried me around past the hole — the brick was scattered all around on top of the hole. There was brick on top of the plank where the negro was passing the brick down. I cannot estimate what number of bricks were on the planks. I should say roughly between 400 or 500 bricks scattered around there. Those brick were right to the last plank that was over the hole. They were one on top of the other, just piled up there. They looked to me as if they were dumped there. They weren’t stacked. I guess those brick were piled up about 18 inches or 2 feet on the plank on top of the hole. I would say the brick were piled about 6 or 8 inches from the edge of that hole, some maybe nearer than that. There was brick scattered all around that hole. They were dumped. Those brick were on the same side of the hole that I was in when I was struck; they were piled up above my head. If a brick had fallen from the bucket that was being let down by the negro in the center of the hole, it would have been impossible for it to have hit me. It would have missed me about 7 feet or 7 feet 6 inches.”

Mr. Fahr, defendant’s foreman, who is called Mr. Farrell by plaintiff, testified:

“Of course, every four or five minutes I would be around there to see if everything was going right.”

And further on cross-examination:

“I had been there just a little while before. I never was any farther away than 15 or 20 feet, approximately 20 feet away from there where we were moving an engine out. I was right where I could see. Of course, I might have been right behind the engine. Of course, if I was behind the engine I couldn’t see. I didn’t go behind the engine and stand there. My position was where I could see all around the works there.”

The witness Olaud Tibbs testified:

“My name is Olaud Tibbs. I am working for Horton & Horton. I have been working for them about four years. On the 31st of May, 1013, I was working for Horton & Horton. I know Mr. A. T. Atterbury, the gentleman there. I was on the job when a brick struck him out there in the manhole. I don’t know whether there was any one standing immediately above the brick, where it fell from. I didn’t see anybody; I didn’t see anybody then standing there where the brick fell, not that I noticed. I don’t know how came that brick to fall. There was no wheelbarrow there at the time; there was none there that I know of. I told you to-day at noon that a wheelbarrow might have dumped it there. That is the way that brick might have gotten in there; I told you that. I didn’t see anybody with a wheelbarrow just above the place where the brick fell from.”

While this testimony is meager and unsatisfactory upon the question of where the brick which struck plaintiff came from and how it was precipitated into the hole, we think it sufficient to authorize a finding that it came from the pile of brick which plaintiff testified he saw piled around the edge of the hole and on the platform after he was taken from the hole and regained consciousness, and either because of the manner in. which they were piled, or by a jar caused by those working around the brick, one of them fell into the hole and struck plaintiff. That the presence of these brick as described by plaintiff, under the existing conditions, rendered his place of work unsafe, cannot be questioned. Conceding that this unsafe condition of the place was caused by the negligence of a' fellow servant, if such condition was discovered by defendants’ foreman, who was their vice principal, in time to have remedied it by the use of ordinary care before plaintiff was injured as a result thereof and he failed so to do, the defendants would be liable for injury to plaintiff so caused. .

If there were piles of brick around the hole and on the platform shortly after plaintiff’s injury, as testified by him, an inference stronger than a mere surmise or suspicion might be drawn that this condition existed for some length of time before the accident in which plaintiff was injured. The evidence negatives the idea that these brick were put there after the accident, and also tends to 'show that they were not dumped or piled there immediately preceding the accident. From the quantity of them, it would have taken some time for one man to have placed them there from the larger pile 25 feet away.

Fahr testified that he “was around there every four or five minutes to see if everything was going right.” The jury might have found from this testimony that he did see the dangerous conditions surrounding the hole in time to have remedied them and negligently failed to use proper care to protect plaintiff, notwithstanding his statement that the last time he looked at the platform he did not see a brick on it. The dangerous condition of the premises, if it existed as testified to by the plaintiff, could have been remedied immediately and easily. It is clear that, if Fahr knew of this condition and failed to use proper care to protect plaintiff from injury thereby, defendants would be liable for such injury. Railway Co. v. Sasse, 22 S. W. 187; Railway Co. v. Hohn, 1 Tex. Civ. App. 36, 21 S. W. 942; Paul Stone Co. v. Saucedo, 171 S. W. 1038.

We think the trial court erred in taking the case from the jury. It follows that the judgment should be reversed, and the cause remanded, and it has been so ordered.

Reversed and remanded.
      <@=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRATE'S, J.

text:
    FLOYD et al. v. SEAY et al.
    (No. 7383.)
    (Court of Civil Appeals of Texas. Galveston.
    May 3, 1917.
    Rehearing Denied May 24, 1917.)
    Partition <@&wkey;)(l) — Act or Parties — CoNcttr-SIVENESS.
    A partition of property having been made between the children and widow of testator, by deeds from executor to the widow and by them to the children, on the theory that the will did not attempt to dispose of the widow’s community interest, and having for years been acted on and acquiesced in by them with full knowledge of the facts, is binding on them, and estops the children from asserting against the widow’s mortgagees an interest under the will in the lands which passed to her by the partition.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 26-31.]
    Appeal from District Court, Madison County; S. W. Dean, Judge.
    Action by M. D. Seay and others against James Floyd and others. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    J. M. Brownlee, of Madisonville, and Woods, King & John, of Houston, for appellants. Dean, Humphrey & Powell, of Huntsville, for appellees.
   GRATE'S, J.

This suit was brought by M. D. Seay and others, as plaintiffs, against James Floyd and others, as defendants, on two promissory notes executed by two of the defendants, Hollan Floyd and Yetta Floyd, and to foreclose a deed of trust given •by them and another defendant, J. W. Floyd, to secure the notes, upon three tracts of land, the first of which, and the only one involved in the controversy, is described as containing about 1,000 acres out of the Nunn and Stewart tract in the Isabella Townsend league in-Madison county, Tex.

Plaintiffs alleged that Hollan Floyd had, on the 16th day of June, 1915, conveyed to James Floyd, Mary Cassidy, and L. II. Floyd, who are also defendants herein, a part of this tract No. 1; that by virtue of that deed, and otherwise and beyond the deed, the defendants James Floyd, Mary 'Cassidy, and L. II. Floyd were asserting claims to this tract of land, which claims were alleged to be subordinate to the deed of trust declared on; and foreclosure was sought as against all parties defendant.

Defendants James Floyd, L. H. Floyd, Mary Cassidy, the last joined by her husband, and Mrs. Hollan Floyd filed their answer, which, among other things, alleged that defendants James Floyd, Mary Cassidy, and L. H. Floyd (who were the children of G. A. Floyd, the deceased husband of defendant Hollan Floyd) held title to this 1,000 acres under the last will and testament of their deceased father, G. A. Floyd, in that, while this 1,000 acres had been originally the community property of G. A. Floyd and Hol-lan Floyd, he had by his will devised to Ms wife, Hollan Floyd, 640 acres of land out of his separate property, and had by the terms of his will undertaken to dispose of this 1,000-acre tract, along with other lands, as his separate and individual property to the three named defendants, James Floyd, L. H. Floyd, and Mary Cassidy, and that his widow, Hollan Floyd, had accepted under the terms of the will, whereby she had lost any claim she might have to the 1,000-aere tract, which under the will vested in the three named defendants; that, if Hollan Floyd had ever claimed or held any interest in this land, on or about August 10, 1910, she had by a deed, duly executed and delivered, conveyed it to L. II. Floyd, who held for himself and his codefendants, James Floyd and Mary Cassidy. They likewise declared this deed of trust a cloud upon their title to the land and prayed for its cancellation.

By a supplemental petition plaintiffs generally denied the allegations of defendants’ amended answer, and further pleaded that the will of G. A. Floyd did not undertake to dispose of any interest in the community property of himself and wife, Hollan Floyd, other than his own one-lialf; that one I-I. B. Pruitt was made independent executor of tlie will and given full power to partition tk«> estate of G. A. Floyd among his legatees and devisees. The supplemental petition set out in full a list of the land therein alleged to have been the separate lands of G. A. Floyd, deceased, and also the community property of G. A. Floyd, deceased, and Hollan Floyd. It also alleged that subsequent to the probating of the will H. B. Pruitt, as executor, acting thereunder, and acting together with Hollan Floyd, made a partition of the community property, and that in that partition 1,213% • acres of land, a part of the Isabella Townsend survey, which included the 1,000 acres in question, was set aside to Hollan Floyd in satisfaction of her community interest in the lands of G. A. Floyd, deceased, and that the executor, joined by Hollan Floyd, set apart and deeded to each of the residuary legatees of G. A. Floyd, appellants herein, lands out of the community estate, specifically described, except that to Mary S. Floyd, now defendant Mary Cassidy, there was set apart lands out of the Musquez survey in Madison county, Tex., which lands were the separate property of the estate of G. A. Floyd, deceased. They further alleged that the lands so set apart and deeded to the said defendants were by each of them accepted; that they went into possession of the tracts of land convoyed to them respectively, all of them knowing that those tracts of land had been conveyed to them in full settlement of their interest under the will of G. A. Floyd, deceased.

By respective denials upon both sides issues were joined upon these matters. The trial was before a jury, and the court submitted three special issues: Nos. 1 and 2 upon whether or not the above alleged deed of August 10, 1910, from Hollan Floyd to L. H. Floyd, was ever executed and delivered, and whether it conveyed the 1,000 acres, and whether any of the plaintiffs in the suit had actual notice thereof before accepting the trust deed they sought to foreclose. No. 3 was as follows:

“Did the plaintiffs herein, or either of them, have any actual notice of any claim by the defendants Jim Floyd, Mary Cassidy, or Lemuel H. Floyd to the above 1,000-acre tract of land growing out of the claim that the land was held in trust by their mother, Hollan Floyd, under the deed from H. B. Pruitt, executor, introduced in evidence herein? And if you find that either of the plaintiffs had such notice, then state which of them had such notice.”

The jury answered each issue, “No.,” The court thereupon, reciting the verdict, and further reciting that the court “found in favor of plaintiff all issues of fact raised by the pleadings and evidence and not submitted to jury,” rendered judgment in favor of plaintiffs against Hollan Floyd and Yetta B. Floyd for $6,224.64, and further for $622.-46 attorney’s fees, with interest at 10 per cent, on the first sum and 6 per cent, on the second sum from judgment date, May 15, 1916, together with all costs; and it was further adjudged that the lien of the deed of trust, as it existed April 21, 1915, he as against each and all defendants foreclosed on the tracts of land described in plaintiffs’ petition, including the 1,000 acres, more or less, out of the Isabella Townsend survey, first above described.

Defendants James Floyd, L. I-I. Floyd, Mary Cassidy, joined by her husband, and Mrs. Hollan Floyd, filed a motion for new trial, which was by the court on the 20th‘' day of May, 1916, considered and overruled; defendants James Floyd, L. H. Floyd, Mary Cassidy, and husband, John Cassidy, excepting and giving notice of appeal to this court, which was later duly perfected.

Since neither of the parties against whom the money judgment was rendered have appealed, there is really but a single question involved upon this appeal, and that is presented by those against whom the judgment was alone one of foreclosure upon the 1,009 acres of land, and is as follows: Was this 1,000 acres of land properly subject to foreclosure, as against the claims of these appellants thereto, upon the deed of trust given thereon by other parties, and existing against it under the facts above detailed? Or did the appellants own the land at the time the other parties attempted to incumber it by the deed' of trust, and hence was the attempt ineffective as against their title?

Since the jury, in answering special issues Nos. 1 and 2, found that the alleged deed of August 10, 1910, was never executed, the only remaining claim of appellants to the land is that urged under their assignments presented here, which may be thus epitomized:

That in his will George A. Floyd devised to his wife, Hollan Floyd, 640 acres out of his separate lands, and also certain personal property belonging to their community estate, consisting of horses, mules, cattle, furniture, farming utensils, etc., which she would not otherwise have been entitled to or obtained, and then, after bequeathing certain other community property to his children, concluded the will by saying:

“All the remainder of my estate, real, personal and mixed, not heretofore given, devised and bequeathed by me, as shown above, or not accepted and taken by any of the legatees and devisees under the foregoing provisions of this, my last will and testament, I here give, devise and bequeath unto my said children James Fdoyd, Joseph W. Floyd, Mary S. Floyd and Lemuel H. Floyd, to be equally divided between them share and share alike.”

That the testimony shows that the defendant Hollan Floyd accepted under this will, and the property so bequeathed to her, and the terms of, statements in, and the words and phrases used in the will, with the special bequests, show conclusively that George A. Floyd treated the property, both separate and community, all as his own property. That his widow was thus put upon her election whether tot accept under the will, or claim her rights as survivor in the community property aside from the will. That, having so accepted, she was limited to the particular property specifically devised to her, and was hound by the disposition otherwise made dn the will of the community property, which, in so far as it affects the 1,000 acres here involved, was that it passed under the quoted residuary clause to appellants.

These contentions are vigorously and ably presented throughout the brief of appellants; but, aside for the present .from the terms of the will, we-are unable to agree with them that the evidence showed any such acceptance by her as they contend it did. Upon the contrary, we think the uncontroverted proof showed that, instead of so accepting only the property specifically devised to her, she very promptly after the testator’s death claimed and took possession of all her rights and interests in the community, independent of the will, and that she consistently maintained and never changed this attitude from the time of the testator’s death in 1889 until she joined the appellants here — that is, throughout a period of nearly a generation— in the contrary position embodied in their above summarized contentions in this suit. The undisputed evidence admits of no other conclusion; indeed, the record likewise shows that the executor and the widow, from the inception of the administration of the estate under the will until its final partition and distribution through deeds from him to her and joint deeds from the two together to appellants, proceeded with no other idea than that she was thereby both claiming and receiving all her community rights, as well as such additional ones, if any, as were vested in her by the will. Nor was her action in claiming and holding the property received from both these sources inconsistent with her legal rights, provided, of course, that she did not accept the one in lieu of the other, as we have found the evidence conclusively showed she did not. There had been nothing to prevent her husband from willing her additional property to what she would have by virtue of her community rights, and was then nothing to prevent her acceptance of it.

We deem it unnecessary to detail the evi-enee supporting this conclusion, because the facts were uncontroverted. The 1,000 acres was community property, was so inventoried, listed, and treated by the executor, and so recognized by the widow and her children, the appellants here. Not only did the widow thus promptly claim her community interests, but the proof is equally uncontroverted that the complete partition by deeds of all interests and property disposed of under the will, as detailed in the above statement of the pleadings of appellees, was in fact made between her and the appellants, she being joined therein by the executor, who was expressly so authorized by the terms of the will, and that in furtherance of this agreed partition appellants severally accepted and went into possession of and used the land so deeded them, as likewise did their mother of the tract including the 1,000 acres in question so conveyed to her, and that this appropriation, possession, and use by each of them had continued, without a dissent or contrary claim, from the date of the partition deed, October 20, 1899, down until about the time this suit was filed, or at least until 1915.

We think, therefore, there was no question of fact for the court to submit with respect to the election vel non of the widow to take under the will, and that no error was committed in that respect, as is contended under the second and third assignments. Furthermore, it is our opinion that this partition, made, acted upon, and acquiesced in, under all the facts and circumstances and for the great length of time it was shown to have been, was binding upon all the parties thereto, and that appellants, with full knowledge of the facts, having so accepted, used, and enjoyed the lands allotted to them thereunder, cannot now be heard to question the validity thereof, and are estopped to claim any interest in the 1,000 acres in controversy, which just as effectively passed by the same partition to their mother. While the issues of fact relating to this partition and its acceptance, so fully joined in the pleadings, and upon which evidence was presented, were neither requested to be, nor were, submitted to the jury, they must be considered as found in favor of appellees; indeed, the judgment so specifically recites. It necessarily follows from these conclusions that in our opinion the trial court committed no error in rendering the judgment it did, and that all appellants’ assignments must be overruled.

And since we think the conclusions reached upon the questions discussed determine the issues presented upon this appeal, without reference to how the specific provisions of the will should be construed, we deem it unnecessary to construe them; but, while unnecessary to the decision of the case, we may say that we do not think the will here under consideration contained any such clear and explicit language as evidenced an intention on the part- of the husband to thereby dispose of his wife’s interest in their community property, within the rules announced in the following authorities: Haley v. Gatewood, 74 Tex. 281, 12 S. W. 25; Moss v. Helsley, 60 Tex. 435; Smith v. Butler, 85 Tex. 126, 19 S. W. 1083; Crosson v. Dwyer, 9 Tex. Civ. App. 482, 30 S. W. 929; Sutton v. Harvey, 24 Tex. Civ. App. 26, 57 S. W. 879, affirmed in 94 Tex. 693; Parker v. Parker, 10 Tex. 83.

Finding no error in the judgment, it is in all things affirmed.

Affirmed.
      <8=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    ROWE v. DAUGHERTY.
    (No. 224.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 31, 1917.
    Rehearing Denied June 13, 1917.)
    1. Justices oe tiie Peace <@=>90 — 'Technical Rules oe Pleading Not Applicable.
    The technical rules of pleading do not apply to the manner of forming issues in justice courts in ordinary suits, where the pleadings may be oral.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 306.]
    2. Bills and Notes <@=> 129(2) — Election to Treat Entibe Seeies as Due — Pleading.
    Filing- of petition in suit on series of notes was prima facie evidence of election to treat them all as due according to privilege given in the notes.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 2S5, 292.]
    3. Pleading <@=>418(1). — General Demurrer AETER CONEESSION AND AVOIDANCE.
    To a general demurrer to petition it is sufficient answer to say that by plea of confession and avoidance defendant had admitted the cause of -action, except as to specific matters therein set up to which the defense should be confined.
    [Ed. Note. — For other cases, see Pleading, Cent. Big. §§ 1399, 1403.]
    4. Appeal and Error <©=>1040(10) — Harmless Error — Overruling Demurrer to Complaint-Premature Commencement oe Action.
    In view- of defendant’s plea of confession and avoidance admitting plaintiff’s cause of action on a series of notes, and the fact that two of the notes attached to memoranda were past due before trial in justice court, there was no error in overruling demurrer to petition because in justice court petition was filed before earliest notes were due.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4098, 4105.]
    5. Appeal and Error <@=>1040(3) — Harmless Error — Right to Open and Close.
    • Defendant was not harmed by refusal of court to permit him to open and close argument, after filing of a pica in confession and avoidance, where the court instructed a verdict for plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4130.]
    6. Release <@=>12(1) — By Holder oe Note-Necessity oe Consideration.
    Consideration is necessary in order to bind owner of note to a verbal release of the maker.
    [Ed. Note. — For other cases, see Release, Cent. Dig. § 18.]
    7. Appeal and Error <@=>1056(1) — Harmless Error — Exclusion oe Evidence.
    Where the evidence showed no consideration for an alleged verbal release of a maker of notes by bolder, maker was not damaged by exclusion of evidence relating thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207.]
    8. Bills and Notes <@=>-501 — Action by Holder — Admission oe Evidence — Waiver.
    In holder’s action on a note, it was proper to exclude defendant’s evidence of the written permission from holder to payee to sell property for which notes were given, subject to the notes, since this did not tend to show a waiver of the holder’s rights.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1698-1707.]
    9. Bills and Notes <@=>511 — Action- by Holder — Admission oe Evidence — Waiver.
    Testimony that the owner of notes had stated to witness that for payment he would look to another person who had assumed payment, with no statement that he released the maker, is not admissible even as a circumstance to show that the owner had released the maker.
    [Ed. Note. — For other cases, See Bills and Notes, Cent. Dig. §§ 1760-1770.]
    10. Trial <@=>252(1) — Instructions — Issues Not Raised by Evidence.
    The court was not warranted in submitting requested charges upon issues not raised by the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 596, 612.]
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Suit by Howard C. Daugherty against E. C.Rowe. Judgment in justice court for plaintiff, and defendant appealed to county court, where plaintiff had judgment, and defendant appeals.
    Affirmed.
    D.F. Rowe, C. M. Kay, and W. A. Rowe, all of Houston, for appellant. Edward II. Bailey, of Houston, for appellee.
   BROOKE, J.

This was a suit instituted by Howard C. Daugherty, appellee, the plaintiff below, in the justice court, precinct No. 1, Harris county, and was a suit to recover of E.O. Rowe, defendant below, the balance due upon eight promissory notes executed by the said Rowe to R. T. Easley, and which notes were indorsed by the said R. T. Easley to said Howard O. Daugherty. The petition does not plead an election of the holder as declaring the unpaid notes due; it appearing from said petition, which was filed May 5, 1914, with the notes attached thereto, that the first note sued on .was not due until May 15, 1914. Plaintiff, in connection with his suit, sued out a writ of attachment, and levied upon certain land situated in Harris county, Tex., belonging to defendant, E. C. Rowe. The defendant in the justice court filed an answer to the plaintiff’s petition by which he generally demurred to plaintiff’s petition, and further a general denial, and by special answer pleaded an agreement between the said defendant and R. T. Easley, based upon a consideration paid to the said Easley in the resale of the property for which said notes were given, that the said E. C. Rowe should be released from his liability on said notes, and- that the said Howard O. Daugherty, plaintiff, knew of said agreement and ratified and confirmed the same, and that the said Rowe paid to the said Easley certain sums of money after having said understanding both with Easley and Daugherty that he should be released, by .which he paid said Easley $235 in cash; alleging and pleading estoppel and ratification on the part of the said Daugherty, and further pleading by said answer that he should be allowed to go hence with his costs, and that his land should be free from said attachment. The instrument upon which said notes originated was a conveyance from R. T. Easley to E. 0. Rowe, conveying to the said Rowe certain personal property in the nature of household furniture. In the justice court, before going to trial, the defendant filed a trial amendment, alleging, among other things, as a defense to the plaintiff’s cause of action, that the said Easley, who had sold him the property described in the instrument above mentioned, which had been reconveyed to him in settlement of certain land purchased by said E. 0. Rowe from said Easley, with the knowledge, consent, and acquiescence of the plaintiff, sold the property which had been reconveyed by said Rowe to him to one J. H. Lehr, ,who assumed the payment of said notes so assigned to and held by the plaintiff, and had agreed to look to said Lehr for the payment of said notes, that the said Lehr did thereafter pay off one of said notes, and that thereafter the plaintiff, by an arrangement with the said Lehr, took possession of said property, and thereafter proceeded to sell the same at public sale, at a great sacrifice, and without the knowledge of the defendant, E. 0. Rowe, and that said sale was made with the purpose and intent of defrauding the defendant, Rowe, defendant alleging that he was not in Houston and was out of the state at the time said sale was made, did not know thereof, and further alleging that the said property was worth the sum of $600, but .was sacrificed at said sale for $102, and praying for judgment upon hearing against the plaintiff for the difference between the amount for which said property was sold and its market value. Defendant further pleaded in said trial amendment that, if he is mistaken in the law of estoppel and his right to damages, then the conduct, action, and agreement on the part of the said plaintiff had in connection with the said Easley, and knowing that the defendant, Rowe, was acting thereon and upon the theory that he was released from the payment of said notes, and that the said Daugherty was bound by having ratified and confirmed the statement of said Easley, who had the agreement with the said Daugherty as to said release, and said acts and conduct in connection with the permission of the said Lehr by the said plaintiff of the said Easley to sell to the said Lehr, pleading ratification of the assumed agency 'of the said Easley for the said Daugherty in making the said agreement .with said Rowe, and in which it is charged that the said Daugherty had full and complete knowledge.

On said pleadings a trial was had in said justice court on April 9, 1915, on which a judgment was rendered in favor of plaintiff for the full amount sued for, from which judgment an appeal was sued out to the county court of Harris county. On December 30, 1915, a trial was had in said county court, but before the trial was begun the defendant filed in said court, under the law and rules permitting him to do so, a plea of confession and avoidance, with a view of having the right to open and conclude both the introduction of evidence and the argument, which said plea is found in the transcript. On said date said motion was overruled by the court. Thereafter, before announcing ready for trial, the defendant presented his general demurrer to the plaintiff’s petition, which said general demurrer was overruled by the court. After the evidence was introduced, plaintiff moved for a peremptory instruction, which was sustained by the court, and said jury was instructed to find for the plaintiff. Appeal was properly perfected, and the case is before this court for adjudication.

Complaint is made in the first assignment of error that the court erred in overruling and not sustaining the general demurrer of the defendant to the plaintiff’s petition, as set out in the defendant’s original answer and cross-action, because the plaintiff’s petition did not allege and show a cause of action, in this, that as a part of such petition the plaintiff attached to his petition the several notes sued upon, which notes contained the following clause: “Failure to pay any two thereof shall, at the election of the holder, mature all;” because the mere attaching of said notes to plaintiff’s petition as exhibits did not show that said notes had been matured, the said petition being filed on May 5, 1914, and the earliest note sued upon was not then due until May 15,1914, and the other notes sued on being due monthly thereafter until December 15, 1914, said petition nowhere alleging such default as would permit said suit to be filed or judgment taken thereon, and therefore said petition did not state a cause of action of which the court could take cognizance, and the general demurrer should have been sustained, and the court erred in overruling the same.

The suit was in the justice court originally, in which the pleadings may be oral, and the technical rules of pleading do not apply to the manner of forming issues in the justice court in ordinary suits, and on appeal from the justice court the pleadings also may be oral in the county court.

The testimony shows that there was a series of notes in which it was provided that they all become due upon default being made on two of them. The filing of plaintiff’s petition is prima facie evidence of plaintiff’s election to treat them all as due.

There seems to have been filed by the appellant in the court an admission setting up the fact that plaintiff had a good cause of action, save and except as to the facts set up in the answer constituting his defense. To a general demurrer it would be sufficient answer to say that the appellant admitted that appellee had a good cause of action, and therefore the defense would be confined to specific matters set up in the admission. At the time of the trial, it seems, in the justice court, and also in the county court on appeal, all of the notes showed upon their face that same were due. The memorandum filed in the justice court in this case was as follows:

“Plaintiff, Ploward Daugherty, a resident of Harris county, Tex., prays judgment against defendant, B. C. Rowe, a resident of Harris county, Tex., precinct No. 1, for the sum of one hundred seventy-eight and 21/ioo dollars ($178.-21), the balance of the principal due on the eight (8) promissory notes executed by the said E. C. Rowe to R. T. Easley, and indorsed by the said R. T. Easley, said notes being for the .sum of twenty-five ($25.00) dollars each, and there being' a credit of twenty-one and 70/ioo ($21.79) dollars on note No. 7, together with interest thereon from date thereof at the rate of 8 per cent, per annum, and 10 per cent, attorney’s fees on principal and interest, as in said notes provided and stipulated, which said notes are hereto attached and made a part hereof, and that a writ of attachment be issued to the sheriff or any constable of Harris county, Tex., or any other county in the state of Texas, commanding him to levy upon any property of the defendant, E. O. Rowe, and for foreclosure of his attachment lien, for costs of suit, and such other and further relief as he may be entitled to receive. Right reserved to plead orally.”

As above stated, the defendant admitted that the plaintiff had a good cause of action, as set forth in his petition, except in so far as saíne may be defeated in whole or in part by the facts of the answer constituting a good defense, which may be established on the trial. He was permitted in the justice court to open and close upon filing said motion. In the county court he was not permitted to open and conclude, for the reason that the court instructed the jury to bring in a verdict for the plaintiff, which was accordingly done. The record does not show that defendant urged his general demurrer in the justice court, nor does it appear that he urged same or in any way called attention to it in the county court. In view of the fact that two of the notes attached to the memorandum were long past due more than ten days prior to the trial of the case, and in view of the admission above set out, we do not believe there was any error on the part of the court, and therefore the assignment is overruled.

The second assignment is as follows:

“The court erred in not permitting the defendant to. open and conclude the introduction of evidence and to open and conclude the argument in said cause to the. jury, because the defendant, prior to announcing ready in said cause, presented his plea of confession and avoidance, malting said request, which the court refused, and in which the court committed error, as is fully set out in the defendant’s bill of exception No. 1.”

As above stated, the court instructed the jury to bring in a verdict for the plaintiff. We do not see how the defendant was harmed or damaged by the refusal of the court to permit him to open and conclude the argument.

The third assignment is as follows:

“Because upon the trial of said cause, and when the plaintiff offered the notes in evidence, which were attached to his petition, the defendant objected to the introduction of said notes because they did not correspond with the allegations of the plaintiff’s petition, and the allegata and probata did not correspond and did not support the allegations of the plaintiff’s petition filed in. this court, and that the cause of action made by the notes is not the cause of action pleaded, it not being shown by the petition that any default had arisen, none having been pleaded by which the plaintiff was authorized to file a suit upon said notes, the suit being filed on May 4, 1914, when the first note sued upon was dated May 15, 1914, and the last of said series of notes December 15, 1914. To which action of the court the defendant excepted, as is shown by his bill of exception No. 2.”

Without comment, it is sufficient to say that we find no error in this action of the court. Therefore the assignment is overruled.

By the fourth assignment complaint is made that the court erred in refusing to permit the defendant to introduce in evidence the evidence offered by him as set out in his bill of exception No. 4. It seems from investigation of bill No. 4 that the matter complained of was as follows:

“If at the time of this conversation with Mr. Daugherty in which the question of your being released on these notes was brought up, upon the statement made to you by R. T. Easley, what would you have done if he had denied that such release was made; what would you have done upon his denying that fact?”

It seems clear to our minds that there Would, of necessity, have to be a consideration, in order to bind the owners of notes to a verbal release of the maker of the notes from an obligation. The record does not reflect any such alleged consideration, and we are unable to see how appellant was damaged by the alleged error in the failure to admit §uch evidence, and to our minds there was no error in the court’s action in the matter. Therefore the assignment is overruled.

The sixth assignment of error claims that the court erred in excluding from the jury the written permission of the said Daugherty to R. T. Easley to sell the furniture which the defendant had reconveyed to said Easley. It appears that the excluded testimony was a written permission from the holder of the note to the owner of the property to sell the same subject to the note, and expressly providing that such permission to sell should not affect or release his rights. We do not understand how that could be a circumstance tending to show a waiver of any of the rights of the holder of the mortgage. In our opinion, there is no merit in the contention of appellant, and the assignment is therefore overruled.

The eighth assignment is as follows:

“The court erred in refusing to permit the defendant to read in evidence to the jury the direct and cross examination from the deposition of J. H. Lehr, and the court erred in excluding the same because said deposition as set out in his ■bill of exception No. 7 was admissible as a circumstance to show that the plaintiff, Daugherty, had released the defendant, Rowe, from the payment of said notes sued on, and as tending to corroborate said Rowe in his contention of being released therefrom.”

It is contended that the court did not err in refusing to permit the defendant to read in evidence the deposition of J. H. Lehr, because the testimony of a witness that the owner of notes had stated that he would look to another than the witness, where the other had assumed the payment of the notes, for the payment of the notes, with no statement that he had released the maker of the notes, is not admissible for the purpose of showing, even as a circumstance, that the owner of the notes had released the maker. We believe this contention of appellee is correct. We see no merit in the assignment, and therefore the same is overruled.

The ninth, tenth, eleventh, fourteenth, sixteenth, and seventeenth assignments are as follows:

(a) The court erred in not charging the jury as requested in defendant’s special charge No. 1.

(b) The court erred in refusing to give defendant’s special charge No. 2 on the question of estoppel, as set out and attached to his exceptions to the court’s charge.

(c) The court erred in refusing the defendant’s special charge No. 3, which was requested by the defendant on the question of estoppel.

(d) The court erred in refusing to give and submit to the jury, as requested by the defendant, his special charge No. 6.

(e) The court erred in refusing to give and submit to the jury the eighth special charge, as requested by the defendant.

(f) The court erred in refusing to give and submit to the jury the ninth special charge requested by the defendant.

All of these special charges seem to have been on the question of estoppel. The special charges are lengthy, and, if there had been testimony raising the issues, perhaps, embrace correct legal propositions. However, a careful examination of the record discloses that no such issues were raised by the testimony, and the view we take of the matter is the court was not warranted in submitting any of said charges. The assignments are overruled.

In this connection we will say that no testimony was admitted raising the question of fraud and deceit on the part of the mortgagee; also there was no evidence given or offered as to sacrificing the property. The special charge asked and by the court refused, being No. 7, was properly refused, because, in our opinion, it is necessary that there be a consideration in order to bind the owner of the notes to the verbal release of the maker from an obligation, and in this case there is no evidence of any consideration, and a charge to the jury upon the issue of ratification of the agreement of another person would be error. In our opinion there is no merit in any of the remaining assignments, and they are overruled.

We have carefully examined the record. We believe that the action of the court in withdrawing the case from the jury was amply justified, and that the court’s peremptory instruction was right. The appellee appears to have had a fair and impartial trial, has sought and has been permitted to take advantage of every legal defense to which he was entitled, the judgment of'the lower court was correct, and, there being no such error in the record as would justify this court in reversing the cause, and remanding it for a new trial, the same is in all things affirmed.
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