text:
    GRUBBS v. MARPLE et al.
    (No. 7453.)
    (Court of Oivil Appeals of Texas. Dallas.
    March 25, 1916.
    Rehearing Denied April 29, 1916.)
    1. New Trial <©=>155 — Proceedings to Procure — Limitation as to Term oe Court.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2025, directing that motions for new trials be determined at the term of court at which they are made, is mandatory, and motions made at one term, but not called to the court’s attention till the next term, are abandoned.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. § 315; Dec. Dig. <©=>155.]
    2. Judgment <©=>17(3) — Essentials—Process to Sustain.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1873. as to citations, article 1867, allowing a defendant ten days’ notice, and article 1868, excluding day of service and of return, a judgment against a nonresident defendant served by notice eight, and not ten, full days before appearance day is void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 26; Dec. Dig. <©=>17(3).]
    3. Appeal and Error <©=>664(1) — 'Record-Conflict — Recitals in Judgment.
    Upon direct attack by appeal or writ of error a recital in the judgment that defendant was “duly cited” does not prevail against the return on the citation in the record showing affirmatively he was not duly cited.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2856; Dec. Dig. <§=>664(1).]
    4. Appeal and Error <©=>933(6) — Presumptions — Record—Findings.
    Where the record shows that a motion for new trial on the ground that service was not in time for a valid default was denied by the court on the ground that it was presented at the succeeding term, it must be presumed that the court did not find as a fact that the service was in time.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3776; Dec. Dig. <S=^933(6).]
    Error from District Court, Dallas County; J. C. Roberts, Judge.
    Action by R. W. .Marple and another against J. Y. Grubbs and others. Judgment for plaintiffs, and defendant Grubbs brings error.
    Reversed and remanded.
    W. P. Donaldson and W. M. Crow, both of Dallas, for plaintiff in error. Brooks & AVorsham and C. M. Smithdeal, all of Dallas, for defendants in error.
   RASBURY, J.

Defendants in error Marple and Knowles originally sued defendants in error Clark, McGinty, Schmalling, and Hoffman in the statutory form of trespass to try title to recover land situated in Hans-ford county, Tex. Each defendant so sued was a nonresident of the state of Texas, upon which fact the court’s jurisdiction was challenged. The trial court ruled it was without jurisdiction to try the case, and, in. obedience to the statutory direction in such cases, ordered the venue of the suit changed to Hansford county. Article 1833, Vernon’s Sayles’ Stats. From such order defendants in error Marple and Knowles appealed to this court, where the action of the district court was in all things affirmed. After the affirmance of the judgment of the lower eouit transferring the cause to Hans-ford county defendants in error Marple and Knowles, plaintiffs below, amended their petition and made plaintiff in error Grubbs, a citizen of the state of Oklahoma, a defendant in the court below. On April 16, 1914, statutory notice in such cause was issued to plaintiff in error, summoning him to appear before the district court of Dallas county at the next regular term thereof to be held in the city of Dallas on the first Monday in May, 1914. The notice, according to the affidavit of one O. A. Deeman, was by him delivered to plaintiff in error in person on April 25, 1914, together with certified copy of plaintiff’s first amended petition. The first Monday in May was May 4th, and appearance day in the district court. On the succeeding day, or May 5, 1914, which was also default day in said court, plaintiff in error having failed to make any sort of appearance in the suit, judgment by default was entered against him for any interest he had in the land. On the same day Schmal-ling and McGinty, defendants in error here and defendants below, appeared voluntarily in the case by attorneys and announced ready for trial. Clark, another defendant, had been dismissed from the case on his disclaimer by former judgment. Hoffman, the remaining defendant, defaulted. The judgment changing the venue to Hansford county was not set aside nor was any motion for cause or otherwise made in that respect. During the term at which judgment was rendered against him by default and on August 6, 1914, plaintiff in error filed motion to vacate same on the ground that the court was without jurisdiction to enter such judgment, since at the time of the entry he had not been notified full ten days, nor had he waived such notice or voluntarily entered an appearance in the suit. All the defendants in error, plaintiffs and defendants below, contested the motion by exceptions and on the ground, in substance, that plaintiff in error had, in fact, had the full ten days notice before default judgment, but that the process served upon him had been mutilated so as not to show the true date of its delivery to plaintiff in error. The term of court during which judgment was entered against plaintiff in error and during which his motion to vacate same was filed expired without the motion ever being presented to or acted upon by the court. The motion was presented for action by the court at the subsequent term. The court at said time refused to consider and determine same on the ground that it should have been determined during the term at which it was filed. The foregoing proceedings are brought before us by writ of error for review.

It is contended, first, in effect, that the court erred in refusing to sustain plaintiff in error’s motion for new trial for the reasons shown therein. The precise issue raised by the assignment is obviously without merit, since the record discloses that the district judge was never afforded an opportunity to sustain the motion within the period in which he could legally have considered and determined it. On the contrary, it appears from the record, as we have shown by our statement of the facts shown by the transcript, that while the motion for new trial was filed at the term during which judgment was rendered, it also shows that it was not presented or called to the attention of the court until the succeeding term. Article 2025, Vernon’s Sayles’ Statutes, directs that such motions shall be determined at the term of court at which same are made. This statute is held to be mandatory, with the resulting conclusion that motions not so determined are abandoned. McKean v. Ziller, 9 Tex. 58; Baird v. State, 15 Tex. 317; Thomas v. Neel, 4 Willson, Cir. Cas. Ct. App. § 291, 18 S. W. 138; Laclede v. Better ton, 5 Tex. Civ. App. 355, 24 S. W. 326; Luther v. Western Union Tel. Co., 25 Tex. Civ. App. 31, 60 S. W. 1026; Clements v. Buckner, 35 Tex. Civ. App. 497, 80 S. W. 235; Town v. Guerguin, 93 Tex. 608, 57 S. W. 565.

The next contention is that, regardless of any issue arising upon the motion for new trial, the court erred in rendering judgment by default against plaintiff in error, for the reason that it affirmatively appears from the record that plaintiff in error was not served with notice ten full days before appearance day, following which the judgment by default was rendered. As we have shown, the citation or notice, as it is called in ease of nonresidents, but which is controlled by the same statutory provisions that control citations (article 1873, Vernon’s Sayles’ Stats.), was issued April 16, 1914, and served upon or delivered to plaintiff in error April 25, 1914. Judgment by default was rendered May 5, 1914. Excluding the day of service and that of return (article 1868, Vernon’s Sayles’ Stats.), it appears that plaintiff in error was allowed only eight days after service in which to plead at the return term, appearance or return day being the first Monday in May, 1914, which was the 4th day of that month; while by the provisions of the statute (article 1867, Vernon’s Sayles’ Stats.), a defendant may not be compelled to plead at the return term until he has full ten days’ notice. The provisions of the statute cited so provided in plain and unambiguous language, and, it being undisputed that the required service was not had, the judgment is void. See Jackson v. Dowdy, 29 S. W. 693.

Counsel for defendants in error, while conceding that a defendant must be served with citation or notice in the manner we have stated before valid default judgment may be rendered, and while conceding that the citation or notice in the instant case discloses affirmatively that it was not served for the required number of days, asserts such facts to be immaterial, for the reason that, when the judgment contains a finding that it was, the judgment is conclusive and controlling. In such connection the judgment by default does recite that plaintiff in error, “although duly cited to appear and answer herein, came not, but wholly made default.” It can be said, however, with utmost reason, that such recitation is without controlling or conclusive force when it is considered that, the judgment being one by default, the recitation therein must in the very nature of things depend for its truth upon the citation or notice contained in the transcript before us, which, as we have shown, was not served upon plaintiff in error for the required number of days "to entitle defendants in error to judgment.

It is true that on oral argument we examined at request of counsel, under the magnifying glass, the date of service shown on the citation, and it developed that some sort of change had been made in the date figures; and it is also true that counsel further stated that a similar examination had been made by the trial court, who reached the conclusion that the date of service had been mutilated, and upon such conclusion permitted the default judgment. These proceedings, however, were informal, and are not shown by, or in any manner presented in, the record. Consequently it will be readily appreciated that, even if such ex parte proceedings, when presented of record, could bind plaintiff in error, which we do not determine, clearly cannot do so when presented in the manner stated.

In addition to what we have just said, it is well settled that in a direct attack upon a judgment by appeal or writ of error on the ground that the judgment is invalid because entered by default without the statutory notice required, as distinguished from collateral attacks, a recital in the judgment that the defendants were “duly cited” is not conclusive against the return on the citation showing affirmatively that the required notice had not been given. Blossman v. Letchford, 17 Tex. 647; Hart v. Weatherford, 19 Tex. 57; Burditt v. Howth, 45 Tex. 466; Eitch v. Boyer, 51 Tex. 336; Bates v. Casey & Swasey, 61 Tex. 593; Carlton v. Miller, 2 Tex. Civ. App. 619, 21 S. W. 698; Mayhew v. Harrell, 57 Tex. Civ. App. 509, 122 S. W. 957; Glasscock v. Barnard, 58 Tex. Civ. App. 369, 125 S. W. 615.

It is also urged that, the issue of sufficiency of the service having been presented to the trial court on motion for new trial, the finding of the lower court on such fact issue is conclusive in the absence of a statement of facts or bill of exception. If all the facts comprehended by the proposition were disclosed by the record, the rule invoked would undoubtedly control. However, the controlling and essential fact necessary to the application of the rule — that is, a finding by the court that defendants in error were, served with notice the required number of days before the entry of judgment by default —is not contained in the record, nor can the presumption be indulged that such finding was made. On the contrary, what is in the record tends to establish that the court did not make such finding, rather than that he did. The record discloses, as we have already shown, that during the term at which the judgment by default was rendered plaintiff in error filed a motion for new trial on the grounds already stated. It does not appear from the record that it was presented to and acted upon by the court during said term. The record does disclose by findings of the court that the motion was presented to him at the succeeding term of court, and that he refused to consider or determine same on the ground already discussed in this opinion. Thus we think it clear that the presumption must be indulged that the court did not find as a fact that service was in time for valid default entry. Had the court made any such finding, some sort of judgment entry would have been entered in that respect. If a hearing had been had, there would have been no necessity for presenting the motion at the next term; or, had there been a hearing, and the issue determined, the reason for overruling the motion so acted upon would not have been placed upon the ground that the court had lost the right to do so by expiration of the term, but upon the ground that he had acted on the motion at the preceding term.

By the last assignment and proposition it is contended that the lower court, having by its judgment transferred the case to Hans-ford county, was without authority to enter judgment therein until said judgment of transfer had been in some legal manner vacated or set aside. The defendants in said judgment other than plaintiff in error do not complain of the judgment — in fact, by the record, seek, in effect, its affirmance; and for that reason we conclude it should be affirmed as to them, without reference to any defenses which might have been available to them had they been timely asserted.

As to plaintiff in error the judgment will be reversed, and cause remanded on the ground of insufficient service of notice, which will leave available to plaintiff in error all defenses that would have been available to him had he been properly served, without disturbing that portion of the judgment which settles the controversy between the other parties; and it is so ordered and adjudged.
      <®=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    LAWSON et al. v. PORT ARTHUR CANAL & DOCK CO. et al.
    (No. 6878.)

    (Court of Civil Appeals of Texas. Galveston.
    Nov. 26, 1915.
    Rehearing Denied April 20, 1916.)
    1. Evidence <©=>471(26) — Admissibility-Facts ob Opinions.
    In a proceeding for the partition of land, the testimony of officers of the defendant corporation that it owned the land in controversy was their opinion, and inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2171; Dec. Dig. <©=>471(26).]
    2. Appeal and Eíbbob <©=>1054(1) — Review— Harmless Ehkob — Opinion Evidence-Comet Case.
    In a proceeding for the partition of land, where witnesses of the defendant corporation were permitted to testify at the trial before the court without a jury to their opinion that the corporation owned the land, the error was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4185; Dec. Dig. <©=>1054 (1)J
    3. Evidence <©=>158(26) — Best and Secondary-Testimony oe Corporate Officers.
    The active officers of a corporation, actually in charge of its affairs, may testify as to the acts, purposes, and intentions of the corporation and conduct of its business personally known to them; proof of such facts not being confined to the resolutions of its board of directors.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 597-513; Dec. Dig. ©=>158(28).]
    4. Canals ©=>22 — Acts Constituting Abandonment.
    As a conveyance by the defendant canal corporation of its canal bed and a portion of an adjoining strip of land 600 feet wide held by them was not ipso facto an abandonment of the remainder, testimony of officers of the corporation, tending to show the intention of the corporation to use the land in the future for the purposes for which it was taken, and that there was no intention to abandon, was admissible, since upon a question of abandonment, hs with fraud, a wide range should be allowed to evidence.
    [Ed. Note. — For other cases, see Canals, Cent. Dig. § 29; Dee. Dig. <©=322.]
    5. Eminent Domain <©=>323 — Abandonment —Evidence—Sufficiency.
    In a proceeding for the partition of land, evidence held to sustain a finding that the defendant canal corporation and its predecessors have been in continuous possession of the land since acquiring it, that the present intention of the company is to improve the land, and that there never has been any intention on the part of the defendant corporation to abandon.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 869-864; Dec. Dig. ©=» 323.]
    6. Eminent Domain <©=>324 — Abandonment —Acts Necessary.
    The intention of the defendant canal corporation to use land for different purposes from that for which it was condemned furnishes no grounds for forfeiture of the rights acquired by it under condemnation proceedings, since no such use has been made of it and the future unlawful use may be enjoined, or damages recovered therefor.
    [Ed. Note. — For other cases, main, Cent. Dig. §§ 857, 858; 324.] see Eminent Do-Dec. Dig. <©=»
    7. Eminent Domain ©=>10(1) — Title and Rights Acquired — Statute.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, tit. 25, c. 16, art. 1250, subd. 6, concerning channel and dock corporations and enumerating their powers to condemn and claim land, the fact that the statute authorizes a channel and dock corporation to condemn a strip of land 700 feet wide on either side of the channel indicates that the right was given for purposes other than those absolutely necessary for the construction of the channel, and the construction of docks being necessary to the use and operation of the channel, the condemnation of the land for that purpose is authorized.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 35, 37, 39-48; Dec. Dig. ©=>10(1).]
    8. Eminent Domain ©=>324 — Acts Indicating an Intention to Abandon.
    The transfer by a canal corporation of its title in a channel to the government of the United States in consideration of the promise of said government to maintain the channel and keep it open and free to commerce was not such an abandonment of its rights and duties to-a channel and dock company as will work a forfeiture of its rights to use the land in controversy for the purposes for which it was lawfully condemned.
    [Ed. Note.' — For other cases, see Eminent Domain, Cent. Dig. §§ 857, 858; Dec. Dig. ©=>• 324.]
    9. Appeal and Error ©=>843(2) — Title to-Rights Acquired — Base Fee.
    Since property taken by condemnation may be used only for the purposes for which it was taken, and the owners may use it until it is needed for this purpose, it is immaterial whether the right acquired by condemnation proceedings is called a “base fee” or an “easement.”
    [Ed. Note. — For other cases, see Appeal and' Error, Dec. Dig. ©=>843(2).]
    Lane, J., dissenting.
    Appeal from District Court, Jefferson County; John M. Conley, Judge.

      Suit for partition by Clara E. Gilliland and ■others against the Port Arthur Canal and Dock Company and others. The defendant Datham Davis was dismissed on his disclaimer. The defendant Wm. A. Lawson and others filed a cross-bill against defend•ant, Canal & Dock Company, and from that part of the judgment in its favor, cross-petitioners Wm. A. Lawson and others appeal.
    Aifirmed.
    H. O. Head, of Sherman, L. C. Kemp, Park■er & Kennerly, and McDonald Meachum, all of Houston, and Minor & Minor, of Beaumont, for appellants. Lipscomb & Lipscomb, of Beaumont, Glass, Estes, King & Burford, of Texarkana, and S. W. Moore, of Kansas ■City, Mo., for appellees.

       Application for -writ of error pending in Supreme Court.

   LANE, J.

For a statement of this case we ■adopt the statement made by appellants in their brief, and which is agreed to by appel-lees as a substantially correct statement of the case, and is as follows:

This suit was originally filed in the district court of Jefferson county, Tex., by Clara B. Gil-liland, Ella S. Gilliland, and W. H. Gilliland, individually, and the said W. H. Gilliland, executor of the last will and testament of J. J. F. Gilliland, against defendants, J. B. Watkins, the Port Arthur Canal & Dock Company, the fiouston Oil Company of Texas, August F. Kountze, Latham Davis, and Wm. PI. Lawson. Plaintiffs, in their petition, set out the respective interests of the parties, the value of the property, and prayed for the partition of two separate tracts of land commonly known as lot, or subdivision, No. 6 of the D. Gahagan league in Jefferson county, Tex., 66.9 acres of land; also lot, or subdivision, A of the D. Gahagan league of land in Jefferson county, Tex., containing 1,103 acres of land. The defendant Latham Davis was dismissed on his disclaimer. Defendants W. H. Lawson, A. F. Kountze, J. B. Watkins, and the Houston Oil Company of Texas filed their answers and a cross-bill against their codefendant, the Port Arthur Canal & Dock Company. In said cross-bills the said Watkins, Kountze, Lawson, and the Houston Oil Company alleged that the Port Arthur Canal & Dock Company claimed to own an easement over a tract of 22.7 acres across lot No. 6 in the Dennis Gahagan league and described said 22.7 acres by metes and bounds; that the said Port Arthur Canal & Dock Company also claimed to own an easement over a tract of 331.1 acres across lot A of the Dennis Gahagan league, and described said 331.1 acres by metes and bounds, and alleged that if any easement over and across said two tracts of land was acquired by the Channel Company, or at any time became vested in the Canal Company, the same had been acquired by condemnation for a specific purpose, to wit, canal purposes, and had been abandoned and forfeited, and that said tracts of land were no longer burdened with said easement, and alleged that after said Port Arthur Canal & Dock Company had acquired said easement or right of way, and said canal had been constructed, said Canal Company acknowledged and delivered to the United States a deed of conveyance to the canal bed; that the said Canal Company and its predecessor in title had acquired a strip of 600 feet in width on either side of the canal bed, and that said strip of 600 feet, lying on either side of the canal, had been abandoned by the Canal Company, had never been used, and was not now used, for canal purposes; that by the conveyance of the channel to the United States government the said Port Arthur Ganal & Dock Company deprived itself of ownership and the right to operate said canal, and ever since said conveyance have ceased to own and operate said canal, and by reason of said act the right of way or easement in and to said tracts on either side of the canal bed had become extinguished by separating the easement over the bed from the easement or right of way on either side of the canal. Said defendants prayed that said easement or claim of the Port Arthur Canal & Dock Company be removed, and that the Port Arthur Canal & Dock Company be forever debarred from asserting or claiming any estate, interest, or easement in and to said tracts of land on either side of the ship canal, and that the parties be entitled to the respective interests claimed by them, and for partition.

The Port Arthur Canal & Dock Company answered, disclaiming any interest in and to the tract sued for in plaintiff’s petition, except as to the tract of 22.7 acres extending across said lot No. 6 of the Dennis Gahagan league, and the. tract of 331.1 acres extending across subdivision A of the Dennis Gahagan league, and alleged that as to said tracts that it is the owner of an undivided five-eighths interest therein, and that the plaintiff in this suit owns the other three-eighths interest, and denied that the defendants Watkins, Kountze, Lawson, and the Houston Oil Company of Texas have any interest therein, and averred that its predecessor in title, the Port Arthur Channel & Dock Company, acquired said land by entering upon and condemning it under the provisions of subdivision 6, art. 1250, c. 16, of the Revised Statutes of Texas, and. averred that the interest acquired by the said condemnation proceedings was a fee-simple title, and said defendant the Port Arthur Canal & Dock Company alleged the transfer of said canal and 150 feet on the west side thereof to the United States government, and denied that they have abandoned or forfeited their interest in the remaining part of the land condemned, if the same be only an easement, and alleges that it has never abandoned, or entertained the intention of abandoning, said land. It admits that it has neither owned nor operated the canal since its transfer to the United States, but denies that said transfer had the effect of extinguishing plaintiff’s easement to the two pieces of land 600 feet in width on either side of the cknal bed, and prays that the last two tracts of land of 22.7 acres and 331.1 acres be partitioned among the plaintiffs and said defendant the Port Arthur Canal & Dock Company.

Defendants Lawson, Kountze, Watkins, and the Plouston Oil Company of Texas filed their supplemental joint answer denying defendant Port Arthur Canal & Dock Company’s interest in and to said tract on either side of the channel bed, and deny that any part of the right of way in excess of that part conveyed to the United States government is necessary for the purposes of the Canal & Dock Company as a canal or channel corporation, and deny that same will be used, or can be used, for the purposes for which it was acquired in said condemnation proceedings. •

Upon the trial of said cause it was agreed that the Port Arthur Channel & Dock Company formerly owned the Port Arthur Ship Canal, or line of water communication, and also acquired by condemnation a right of way to an undivided five-eighths of the land on either side of the canal, being the tract of 331.1 acres and the tract of 22.7 acres, and that the Port Arthur Canal & Dock Company succeeded to all the rights and interest of the Port Arthur Channel & Dock Company; that on August 1, 1906, the Port Arthur Canal & Dock Company executed the deed to the United States to the canal bed and a strip of 150 feet on the westerly margin thereof; that the title to the two tracts of land is in the parties to this suit in the following proportions, except so far as affected by the condemnation proceedings of the Channel & Dock Company: Three-eighths interest in the plaintiffs: two-eighths interest in the defendant J. B. Watkins; three-eighths interest in the defendants W. H. Lawson, A. F. Kountze, and the Houston Oil Company of Texas.

The case was tried before the court without a jury, and judgment was rendered, decreeing to the parties the respective interests claimed by them in and to said lot or subdivision 6 and lot, or subdivision, A of the Dennis Gahagan league, with the exception of the two tracts of 22.7 acres and 831.1 acres, excepting out of said two tracts the ship canal or line communication, and adjudged that as to said two tracts the Port Arthur Canal & Dock Company is entitled to and owns a special interest, constituting a base fee, corporeal in its nature, in an undivided five-eighths interest, and plaintiffs and defendants J. B. Watkins, Wm. H. Lawson, and August F. Kountze and the Houston Oil Company of Texas should have partition of the said two tracts, but the said Watkins, Lawson, and Kountze and the Houston Oil Company of Texas should have the right to their respective interests and shares in and to said two tracts only so long as said two tracts are not actually appropriated by the Port Arthur Canal & Dock Company to the use for which they were condemned; and commissioners were appointed to partition said land. Said defendants Watkins, Lawson, Kountze, and the Houston Oil Company of Texas have appealed from the judgment so rendered.

Appellants’ assignments of error 1 to 8, inclusive, insist that the court erred in permitting J. A. Edson and C. E. Johnson, active officers of the Canal Company, to testify that the land in controversy was owned by said company, and as to the purpose for which the land was acquired, and further testify as to the intended use and future use of the land by said company, and as to the intention of the company to abandon said land, for the reason: First, that a statement of the witnesses that the land was owned by the company was but the opinion of the witnesses, and should not have been admitted; second, the intended uses of the land by the corporation and its purpose and intention as to abandonment could only be proven by some resolution of the directors of said corporation, and to permit said officers of said corporation to testify to such intentions and purposes was error; and, third, that such testimony does not tend to prove or disprove any issue in the suit.

Answering these propositions, in the order stated, we say:

First. The testimony of the witnesses that the corporation owned- the land in controversy was but the opinion of the witnesses, and should not have been admitted, but as the case was tried before the court without a jury, we are of the opinion that such error was not reasonably calculated to cause an improper judgment in the case, nor did such error prevent, or in any manner affect, the proper presentation of the cause to this court, and therefore is no cause for a reversal of the judgment rendered.

Second. The active officers of a corporation actually in charge of its affairs, such as Edson and Johnson are shown to be in the present case, may testify as to the acts, purposes, and intentions of such corporation in the conduct of its business personally known to them, and it is not the law that such acts, purposes, and intentions can only be proved by resolutions of its board of directors.

Third. We think that so much of the testimony complained of as tended to show the intention of the corporation to use the land in the future for the purposes for which it was taken, and that there was no intention to abandon it was material, pertinent, and admissible testimony, and was properly admitted, unless it can be said that the conveyance of the canal to the United States was ipso facto an abandonment of such land, and as the majority of this court hold that such conveyance did not, of itself, as a matter of law, work an abandonment, we think the testimony admissible.

“Upon a question of abandonment, as upon a question of fraud, a wide range should be allowed as to evidence, for it is generally only from facts and circumstances that the truth is to be discovered, and both parties should be allowed to prove any fact or circumstance from which any aid for the solution of the question can be derived.” 1 Cyc. 7.

Appellants’ ninth, tenth, and eleventh assignments insist that the trial court erred in his fourteenth finding of fact: First, in finding that the Canal Company and its predecessors have been in possession of the land in controversy all the time since acquiring same; second, in finding that it is the present purpose and intention of the company to improve the land as the trade and commercial development of the port requires and necessitates, for the reason that such finding is against the great weight and preponderance of the evidence to support it; and, third, in finding that:

“There never has been at any time any intention on the part of the defendant company to abandon any part of said land.”

We think there was evidence sufficient to support the finding of the court complained of, and therefore overrule said assignments 9, 10, and 11.

We now come to a more serious question, which is presented by appellants’ twelfth and eighteenth assignments of error, each of which present practically the same substance, and are as follows: Twelfth assignment of error:

“The court erred in rendering judgment, refusing to cancel and hold null and void the easement or right of the appellee Port Arthur Canal & Dock Company to the land in controversy, for the reason that the evidence, if sufficient to show the intention of said appellee as to the future use of said land, showed conclusively that it was the intention to use said land for a purpose wholly different from that for which said land was condemned and for a purpose for which land cannot be condemned.”
Eighteenth assignment of error:
“The court erred in its second conclusion of law in holding that under the facts there has been no positive and final abandonment of the property by appellee Port Arthur Canal & Dock Company, and that said appellee’s rights in and to the land in controversy have not become extinguished, for the reason that the undisputed evidence shows that said appellee has conveyed the canal and placed it beyond its power to ever use the land for the purpose for which it was condemned, to wit, canal purposes.”

These two assignments present what may be termed the “major proposition” and which, if decided in favor of appellant, would render useless a consideration of all other propositions presented, and would call for a reversal of the judgment of the trial court and the rendering of judgment for appellant by this court. Upon the questions presented by these assignments the majority of the court are of the opinion that, while the testimony indicates that some of the purposes for which the appellee intends to use the land are different from that for which it was condemned, no such use has yet been made of it; and, if it should be so used in the future, appellants may enjoin such unlawful use or recover damages therefor, and such intention on the part of appellee furnishes no ground for a forfeiture of the rights acquired by it under the condemnation proceedings.

The majority are further of the opinion that under chapter 16, tit. 25, Vernon’s Sayles’ Statutes, under which appellee obtained its charter as a channel and dock company, it was authorized to condemn the land claimed by it in this suit, and could lawfully use it for both channel and dock purposes; that the construction of docks was necessary “for the use and purposes of such channel company” and the condemnation of the land by the company for such uses and purposes was expressly authorized by subdivision 6, art. 1250, of the statute before mentioned. The fact that the statute authorizes a channel and dock company to condemn a Strip of land 700 feet on either side of the channel, in the opinion of the majority, shows that the right to condemn was given for other purposes than those absolutely necessary for the construction of the channel; and, the construction of docks being necessary to the use and. operation of the channel, the condemnation of the land for such purpose must be held to have been authorized by the statute.

The majority also hold that the transfer by the appellee company of its title in the channel to the government of the United States, in consideration of the agreement and promise of said government to maintain the channel and keep it open and free to commerce, was not such an abandonment of the rights and duties of appellee company as a channel and dock company as should work a forfeiture of its right to use the land in controversy for the purposes for which it was lawfully condemned. Upon this issue the majority agree with the following conclusions of the learned trial judge:

“The defendants Watkins et al. are only concerned in seeing that the lands which they formerly owned, and which were condemned by the Ohannel & Dock Company, are put to the uses for which they were condemned. So long as the lands are devoted to those very uses, there is no transgression of any of the complaining defendants’ rights. Each one of these defendants received at the time of the condemnation such compensation as they were entitled to for the land taken from them. No different use of said land, other than that for which it is taken, is now being made, or has ever been made, by the defendant corporation or its predecessors, or by the United States government. There is not involved in this case the question of an additional servitude upon the land nor a devoting of its use to. private purposes. There are no contingencies indicating the existence of an impossibility to use the land for the purpose for which it was condemned. There is no evidence whatever manifesting a ‘positive’ and a ‘final’ abandonment of the property by nonuser. * * * The. sale of the canal to the government was not equivalent to an abandonment. Stripped of all of its refinements, Watkins et al. seek to reinvest themselves with their former estate, because the United States government, instead of the defendant Canal & Dock Company, operates and maintains the canal. * * * The theory of ‘extinguishment’ of the Canal & Dock Company’s rights in and to the lands hangs upon the slender, delicate, and technical thread of the severance of the operation of the canal from the docks, the separation of the two projects, and the operation of each by two concerns, instead of by one. In this case the state authorized the taking of the land for the purposes to which it is being put. The federal government and the defendant company are carrying out those very purposes, and to a better advantage than contemplated when the stalte breathed the breath of corporate life into the defendant company. Who is operating the canal, and who is operating the docks, does not concern the defendants Watkins et al., so long as the character of the use of the lands is not affected.”

The writer cannot concur with the majority of the court in holding:

First. That appellee Port Arthur Oanal & Dock Company has or had authority, under the provisions of chapter 16, tit. 25, Vernon’s Sayles’ Statutes, to incorporate for the dual purposes of constructing and operating a “deep-water channel” and for the purpose of owning and operating “docks”; in other words, that there exists authority under said statute for the incorporation of a “canal & dock company.”

Second. That there exists in this state authority for a channel corporation to take lands of the citizens by condemnation for the purpose of constructing a deep-water channel and for the further uses and purposes of such channel, including “docks,” and after the construction of its channel convey the same to another corporation, place the operation and control of such channel in such other corporation, and thereafter continue to hold any portion of the lands so taken by condemnation, under the claim that it is still a channel corporation, and has the right to use such lands for dock purposes in aid of the canal conveyed. ■

Third. That the Port Arthur Oanal & Dock Company did not abandon the land taken by it by condemnation by its conveyance of its deep-water channel to the United States government.

That the points of noneoncurrence may be more readily understood I here make the following propositions:

First. There is no authority conferred by chapter 16, tit. 25, Vernon’s Sayles’ Statutes, for the incorporation of a “canal and dock company” nor for such company to take and hold the lands of another by condemnation for the uses of a “canal and dock company.”

Second. Said statute confers no authority upon a “dock company” incorporated under said statute to either take or hold lands of another by condemnation for any purposes; but, on the contrary, article 1251 of said statutes, which is a section of the original act of 1887, and embracing all the articles of said chapter 16, expressly provides that such “dock company,” as mentioned in the act, “shall never have the right or power to take or condemn to its use any private property without the free consent of the owner thereof.”

Third. The conveyance by the Port Arthur Canal & Dock Company of its deed-water channel or canal to the United States government, thereby placing the ownership, operation, management, and exclusive control of such channel in said government, put it beyond the power of said Port Arthur Company to perform its corporate duties to the public, and it thereby abandoned the land taken by condemnation, as far as it was concerned, as a matter of law. It can no longer hold such lands so taken for the purposes of constructing or operating docks, wharves, warehouses, or for any other purpose. When it parted with its deep-water channel, the public enterprise or waterway which gave rise to its right and power to condemn and take the private property of another, it ceased to be a channel company, and converted itself, in fact, to a “dock company,” which is forbidden to either take private property by condemnation or to hold the same, even if at first taken lawfully, in such manner. Calcasieu Lumber Co. v. Harris, 77 Tex. at page 23, 13 S. W. 453; Buford v. Smith, 2 Tex. Civ. App. 178, 21 S. W. 168; Railway Co. v. Sweat, 20 Tex. Civ. App. 543, 50 S. W. 162: Muhle v. Railway Co., 86 Tex. 464, 25 S. W. 607; Neitzel v. Spokane, 65 Wash. 100, 117 Pac. 864, 36 L. R. A. (N. S.) 529.

Fourth. The fact that appellants Lawson and others at the time of the condemnation received compensation for their land taken furnishes no reason in law why said land should not revert to them if the lands taken had, in law, been abandoned by said Port Arthur Canal & Dock Company. The trial court presents the affirmative of this proposition as a conclusion, and the same has been adopted by this court in the majority opinion.

Fifth. The Port Arthur Canal & Dock Company, by the conveyance of its deep-water channel or canal to the United States government, severed itself from the operation and control of the public enterprise or waterway which gave rise to its right and power to take private property by condemnation, and placed the exclusive ownership, operation, and control of said deep-water channel or canal in the United States gov* ernment, and it seems to the writer that it is absurd to insist that said Port Arthur Company may, after such sale, determine what portion of the 600 feet of land taken on each side of said channel is necessary for the uses of such channel. The United States government, now owning, operating, and controlling said canal alone is to determine how much of said land is necessary for the proper uses of such canal. The Port Arthur Company cannot hold these lands and dictate to the corporation owning and operating the deep-water channel as to what lands-are necessary and may be used in the operation of said canal. See cases above cited.

Sixth. Two separate and distinct corporations, such as the Port Arthur Canal' & Dock Company, which is now operating without owning or operating a canal, and the United States government, which purchased, and now owns, operates, and controls-the canal constructed by the first company under its charter, cannot both hold, occupy,, and use separate portions of private property taken by condemnation by one of said corporations. The law under which the Port Arthur Canal & Dock Company was incorporated is an Act of the Twentieth Legislature of 1887, pages 91 and 92, as amended by the Acts of the Twenty-Fourth Legislature of 1895, pages 184 and 185, and as amended by the Acts of the Twenty-Fifth Legislature of 1897, pages 19 and 20. This act as amended embraces articles 1249, 1250, 1251, and 1252, now forming that part of chapter 16, tit. 25, Vernon’s Sayles’ Statutes, referred to in the majority opinion. All these articles were embraced in one original act, passed by the Legislature as one act, and should be-construed as a whole, with a view to harmonizing each section thereof with the others,, if possible, and with that purpose in view X here copy so much of said articles together with the emergency clause attached to the amendment of 1897, as relate to the questions presented:

Article 1249. “This chapter shall embrace and include the creation of private corporations for the purpose of constructing, owning and operating deep-water channels from the waters of the Gulf of Mexico along and across any of the bays on the coast of this state to the mainland, for the purposes of navigation and transportation,, and for the construction, owning and operating docks on the coast of this state for the protection and accommodation of ships, boats and all kinds of vessels for navigation and their cargoes.”
Article 1256. “Every such channel corporation shall, in addition to the powers herein conferred, have power: * * *
“2. To take and hold such voluntary grant of real estate and other property as shall be made to it to aid in the construction and maintenance of its deep-water channel and works pertinent thereto. * * *
“6. To enter upon and condemn and appropriate any lands of any persons or corporation that may be necessary for the uses and purposes of such channel corporation; the damages for any property thus appropriated to be assessed and paid for in the same manner as provided by law in the case of railroads; provided, that no damages shall he assessed against or paid by it for any portion of the route of the channel embraced within and covered by the waters of any bay or lake on the coast of this state, nor for any portion of any island belonging to the state that may be requisite and necessary to the construction and successful operation of its channel; and provided, further, that its right of way shall not be less than the actual width of its channel, and not more than seven hundred feet in width on each side of its channel; provided, that when the land sought to be condemned under this chapter is arable land, such right of way shall not extend further than six hundred feet on each side of the channel from the edge or boundary of said channel. * * *
“Whereas, there are now contracts let to build a large ship channel across the bay of Sabine X^ake, and in the present condition of the law there is not right of way enough given to dump or pile the dirt taken from the bed of the channel, and in consequence the work on the building of said channel is stopped * * * renders it necessary and creates an imperative public necessity that the constitutional rule requiring bills to be read on three several days be suspended, and this bill take effect on and from its passage, and it is so enacted.”
Article 1251. “Every such dock corporation shall, in addition to the powers heretofore conferred, have power:
“1. To purchase, take and hold such land or real estate as shall be necessary for the construction and operation of its docks, approaches, entrances, moorings and ways; and the construction, use and enjoyment of such warehouses, stores and sheds as may be necessary to the receiving and discharging of freights, goods, wares and merchandise, and the proper protection and preservation thereof; provided, that no such dock corporation shall ever have right or power to take.or condemn to its use any private property without the free consent of the owner thereof, expressed by a sufficient deed in writing.” * * *
Article 1252. “Every such corporation shall, in addition to the powers heretofore conferred, have power;
“1. To purchase, take and hold such land or real estate as shall be necessary for the construction, maintenance and operation of its harbor approaches, entrances, and ways thereto, and the construction of wharves, piers and warehouses. * * * ”

When the different sections of this act are construed together I am driven to the conclusion, from which there is no escape, that it was not the intention of the legislature to authorize the incorporation of a “canal and dock company,” but that it was its intention to authorize the incorporation of a deep-water channel company, with power to take such land by condemnation as in its judgment may be necessary for the construction of its channel and so much of the 600 or 700 feet on either side of its channel, as allowed by law, as is necessary to dump or pile the dirt taken from its channel. I am strengthened in this conclusion because in every instance where authority is given in the statute mentioned to take and hold land for purposes other than for the channel, it is provided that such taking shall be by voluntary grant. For instance, sections 2 and 1 of articles 1251 and 1252, respectively, of the original act of 18S7 provides that land taken for purposes other than for right of way shall be by voluntary grant only, and section 1 of the amendment of 1897 provides that every such channel corporation shall have power—

“to take and hold such voluntary grant of real estate and other property as shall be made to it to aid in the construction and maintenance of its deep water channel and works pertinent thereto.”

Section 1, art. 1252, is as follows:

“Every such corporation ⅜ * * shall * * * have power to purchase, take and hold such land or real estate as shall be necessary for the construction and maintenance of its harbor approaches, entrances, and ways thereto, and the construction of wharves, piers and warehouses.”

I am further strengthened in my conclusion by the emergency clause attached to the amendment of 1897, as follows:

“Whereas, there are now contracts let to build a large ship channel across the bay of Sabine Lake, and in the present condition of the law there is not right of way enough given to dump, or pile the dirt taken from the bed of the channel, and in consequence the work of the building of said channel is stopped, * * * creates an emergency,” etc.

The amendment provided for 600 or 700 feet, whereas the previous act provided for 150 feet only on each side of the channel as a right of way.

But if I am in error in the views just expressed, I cannot be in error in concluding that the words, “such channel corporation,” in article 1250, and the words, “such dock corporation,” in article 1251, refer back to the channel, to the “channel corporation,” and the “dock corporation” mentioned in article 1249, as separate and distinct corporations, nor can I be in error in concluding that section 6, art. 1250, confers power upon such channel corporation only to take or hold land by condemnation, and that section 1, art. 1251, expressly forbids “such dock corporation” from taking or holding private property by condemnation for its uses. I think what has been said amply sustains my propositions Nos. 1 and 2.

As to propositions Nos. 3, 6, and 7, if it be conceded that a channel corporation may, by condemnation, take and hold private property for construction of docks, approaches, entrances, moorings, etc., and that the Port Arthur Canal & Dock Company, when first incorporated, had such rights and powers, by the sale of its deep-water channel to another it severed itself from the deep-water channel and ceased to be a deep-water chan-' nel corporation, became a dock corporation only, and by such sale it abandoned all the land condemned, and it reverted to its original owners, except such as passed to the ven-dee, who now owns, operates, and controls the public enterprise or waterway, which alone gave rise to such condemnation. A railway corporation has the power to condemn and take private property for its right of way and also for depot purposes, and for the construction of reservoirs, but will it be contended that if such corporation were to sell its railroad to another corporation, it could hold real estate taken by condemnation for depots and reservoirs, and continue to use such lands for depot and reservoirs, in aid of the railroad which it had sold to such other corporation? ■ Such contention to me seems absurd, but not more so than that the Port Arthur Oanal & Dock Company can hold lands so taken by it in aid of a deep-water channel which it has sold to another, and which has passed beyond its control. The right to take private property by condemnation is one conferred upon a channel corporation, and the right to the use of land so taken must follow the principal object which gave rise to such right. The right to use lands taken by condemnation by a deep-water channel corporation for right of way may be used by said corporation in a manner consistent with the rights of navigation, and purposes necessary to a successful operation of its channel, but such uses are but incidents to the operation of the channel or. canal; and, if held and used for such purposes, it must be held by the corporation operating and controlling the canal, the principal object which gave rise to the taking of such land. The great public waterway should not be left to the mercy of the Port Arthur Company, which is contending in this cause that it, and it alone, is prepared to determine just how much and in what manner the land taken for right of way shall be used in the operation of said canal. See eases above cited. In Ruling Case Law, sec. 19, page 468, it is said:

“The plain design of such case is to enable them to acquire what they require for the construction and successful operation of their canal, but nothing more. Consequently the title to the land taken remains in such cases in' the owner, subject only to such servitude as the corporation has power to impose; and their power in this respect is limited, as a general rule, to such use of the land as may be reasonably necessary for a right of way.”

In the case of Platt v. Pennsylvania Co., 43 Ohio St. 228, 1 N. E. 420, it is said:

“ ‘A railroad company has no authority to appropriate private land for the use of another company,’ and ‘there is no authority of law for several railroad companies to agree that one of their number shall proceed to appropriate land for the purpose of afterwards dividing it for the benefit of all; each company must proceed for itself.’ ” “The power granted by statute to the condemning company was to take and hold an easement for ‘its railroad’; and such statute must ■be strictly construed. And this is not a rule to be asserted and then disregarded, but to be rigidly enforced.”

And again:

See, also, Calcasieu Lumber Co. v. Harris, 77 Tex. 23, 13 S. W. 453.

In Jessup v. Loucks, 55 Pa. 350, it is said:

‘The corporation was created in this, as in other cases, to have the exclusive charge of its works in the nature of a trust. It alone could possess and control them to the exclusion of every subordinate or dependent interest.”

And again:

“The fact of the abandonment by the corporation of its works [canal in the present case] was all the plaintiff had to concern himself about in this case. It is that fact which gives rise to the principle that abandoned easements return or revert to the original owners.”

Washburne on Easements (3d Ed.) p. 670, says:

“The actual conveyance of its railroad bed by a railroad company of itself was an ■ abandonment, and destroyed its easement.”

It is only for the public good that private property is taken and appropriated to the uses of a corporation, and when taken or held, it must be done under the strict letter of the law. If a corporation asserts the right to take private property for its uses by virtue of the statute, such statute must clearly, by a reasonable construction, give such right, and if there be any doubt as to such right, it does not exist, and should be solved in favor of the party against whom such right is asserted. This, in any event, should be the law in such as the present case, where a corporation is asking that the law take the private property of a citizen for its uses without the consent of the owner. I think I can assert without controversy that no one will contend that had the Port Arthur Canal & Dock Company retained the ownership, operation, and control of the canal, that it could not have conveyed the land it took by condemnation to another corporation to be used by it for docks, wharves, warehouses, or for either of such purposes even if the vendee were to use it in aid of the canal, as said Port Arthur Company proposes to do in this case. It seems to me that such contention would be absurd. Nor do I think any one will contend that, although a railway company has power under the law to condemn and take land for depot and reservoir purposes, it could sell its railroad to another corporation, retain the land so taken in its own right, although it built a depot and reservoir thereon, and thereby gave aid to the corporation to which the railroad was sold. I think it would be readily conceded in such ease that, as the exclusive control of the railroad, the construction and maintenance of which only would give rise to the right to condemn land for depot and reservoir purposes, had passed from the company seeking to hold the land, such land would revert to the one who holds the fee. If I am supported in this last proposition, how can it he held that the Port Arthur Canal & Dock Company has the right to hold the lands taken by it by condemnation, since it has sold its deep-water channel to another, who manages, operates, and controls the same to the exclusion of the said Port Arthur Company?

If the opinion of the majority of this court in this case is sustained, then two companies may be incorporated in this state as canal and dock companies, the purpose of one being to construct and operate a canal only, and the purpose of the other to construct and operate docks, wharves, warehouses, etc., named in articles 1251 and 1252, supra, then after such incorporation, agree that the one whose purpose is to operate a canal only shall condemn and take the land of another sufficient for the construction of its canal, and 600 or 700 feet on each side of such canal, and after such taking convey so much of the land so taken to the other, whose purpose is to operate docks, wharves, etc., as is necessary for such purposes, or vice versa, and in this manner take private property and appropriate it to corporate purposes, and permit dock and wharf companies to do indirectly exactly what they are forbidden to do by article 1251, supra. I cannot believe that the Legislature intended to, or that it has made it possible for dock and wharf companies to, take private property for their purposes in this hocus pocus manner; for in said article 1251 a part and parcel of the one act of the Legislature under which appellee claims its right to take expressly forbids the taking of private property by such companies by condemnation, or otherwise than by purchase.

If the Legislature intended by the words, “to enter upon and condemn and appropriate any lands of any person or corporation that may be necessary for the uses and purposes of such channel corporation,” in section 6, art. 1250, to confer power upon such corporation to take such land for the construction and maintenance of docks, approaches, entrances, wharves, piers, and warehouses, and other incidental “works appurtenant to said channel” as are named in section 2, art. 1250, and section 1, art. 1252, then it is inconceivable why said sections last mentioned were incorporated in the general act, which embraces all of said articles and sections.

Appellee alleged in its answer that it had conveyed its deep-water channel, known as the Port Arthur Ship Canal, to the United States of America, together with 150 feet of land along the west side of said canal, and that said canal is now the property of said government. From what I have already said it is clear that I think such answer confesses an abandonment of so much of the land taken by condemnation as did not pass to the government with and as an appurtenant to the canal, and I, therefore, think the trial court erred in not rendering judgment for appellants upon the petition and answer, and that upon his failure to so render judgment on said petition and answer he should have rendered judgment upon the undisputed facts, which, in'my judgment, show such acts on the part of the appellee as constitutes an abandonment of the land in question, as a matter of law, even if it be conceded that it ever had any rights thereto, in the first instance. I am therefore of the opinion that the judgment of the lower court should be reversed, and judgment be here rendered for appellants, and, so believing, I cannot concur with the majority opinion which affirms the judgment rendered for appellee in the court below.

The thirteenth and fourteenth assignments insist that the trial court erred in concluding and holding that appellee acquired a base fee, and more than an easement, in the land taken by condemnation. We overrule the contention presented by said assignments. The legal effect of the court’s holding is that appellee acquired the use of the land taken for the purposes for which it was taken, only, that it held no greater title thereto, and that appellants had the right to use the same until appellee required its use for the purposes of its business. It is immaterial, therefore, whether appellee’s right in the land be termed a “base fee” or an “easement.”

What has been said under the twelfth and eighteenth assignments answers and sufficiently disposes of the remaining assignments, and they are therefore overruled.

It being the conclusion of the majority of this court that no such error has been committed in the trial of this case as should cause a reversal of the judgment rendered by the trial court, such judgment is by this court affirmed.

Affirmed.

LANE, J., dissents.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbored Digests and Indexes


author: RASBURX, J.

text:
    FEDERAL LIFE INS. CO. v. HOSKINS.
    (No. 7429.)
    (Court of Civil Appeals of Texas. Dallas.
    April 1, 1916.
    Rehearing Denied April 29, 1916.)
    1. INSURANCE <&wkey;141(4) — FRAUD — ESTOPPEL.
    Where the insured is induced to sign an application by false representations of the agent that it provides for such policy as they have agreed upon, when, in fact, it provides for another and materially different policy, he is not estopped from setting up such false representations, unless inexcusably negligent in not informing himself, though he could have done so by reading the application when he signed it.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 262; Dec. Dig. &wkey;141(4).]
    2. INSURANCE c&wkey;198(6) — Fraud — Question eor Jury.
    Whether insured, giving his note for and accepting a policy covering a different period than that alleg'ed to have been represented by the insurer’s agent, was inexcusably negligent, was • a question of fact for the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 465-467; Dec. Dig. &wkey;198(6).]
    3. Appear and Error <&wkey;748(2) — Review— Fundamental Error. .
    Assignments showing that the insurance transaction between the parties was in violation of law and void presented fundamental error and might be considered, though improperly grouped.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3059, 3060; Dec. Dig. &wkey;> 748(2).]
    4. Contracts &wkey;>138(3) — Illegal Contract-Recovery op Money Paid — Parties in Pari Delicto.
    Plaintiff entering into an insurance contract whereby he was to receive the benefits of a rebate, offered in violation of Yernon’s Say les’ Ann. Civ. St. 1914, arts. 4897, 4954, while the contract was executory, might recover the premiums paid thereunder.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 688, 68»; Dec. Dig. <&wkey;138(3)J
    5. Appeal and Error &wkey;>882(12) — Party Entitled to Allege Error — Instructions.
    On appeal a party cannot call in question a ruling of the trial court made at his suggestion, such as incorporating special requested issues in the general charge instead of submitting them as special charges.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. <&wkey;> 882(12).]
    6. Trial <&wkey;351(2)- — Requested Issues — Selection.
    The trial court is not required to select from a number of special issues those which aré proper to be given and those which are not.
    [Ed. Note. — For other cases, see Trial, Cent. ■Dig. § 837; Dec. Dig. &wkey;351(2).]
    7. Trial <&wkey;3C51 (5) — Requested Instructions —Given Instructions.
    Whore some of the requested issues were substantially covered by the main charge, it would have been improper to repeat such issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dee. Dig. &wkey;351(5).]
    8. Appeal and Error <&wkey;742(7) — Assignments op Error.
    An assignment of error in overruling appellant’s motion for a new trial for the reasons enumerated in the motion, with the proposition that, for the reasons set out in previous assignments of error, in submitting the case to the jury, in entering judgment, and in overruling the motion, the court erred, and the statement consisting of a copy of the motion, would be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;742(7).]
    Appeal from Dallas County 'Court; T. A. Work, Judge.
    Action by John T. Hoskins against the Federal life Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Dawther, Pope & Mays, of Dallas, for appellant. George, Hancock & Hardwicke, of Dallas, for appellee.
   RASBURX, J.

Appellee sued appellant to recover $210, the amount of a note executed hy appellee in favor of appellant and by it transferred to the White Banking Company before maturity for value. There was a trial by jury, to whom the court referred certain special issues of fact, upon the answers to which judgment was for appellee; hence this appeal.

From the findings of the jury which are supported by the evidence the following facts are deducible: Appellant, through its duly authorized agent, agreed to insure appellee’s life in the sum of $5,OOQ from April 3, 1913, to October 1, 1914. The rate of the insurance fixed by the company was $85 per thousand annually, which was known both to appellee and appellant’s agent, but was reduced to the sum stated for that period, appellee assigning one reason for the reduction, and appellant another, the true reason | being neither important nor controlling. At the time appellee and appellant’s agent reached their agreement, which was April 3, 1913, appellee executed his note for the agreed sum of $210, due October 1, 1914, payable to the agent, to whom it was delivered, and who promptly negotiated it with the White Banking Company. Subsequently, on April 25, 1913, the policy was issued and by the agent delivered to appellee. Two days after the policy was delivered appellee examined same and found that it was not in compliance with the agreement, in that it was issued covering the period from April, 1913, to April, 1914, when it should have covered the period from April, 1913, to October, 1914. Appellee returned the policy to appellant and demanded the return of his note. This appellant declined to do. Subsequently, after ineffectual efforts to adjust the matter, suit was filed. Any details of the evidence necessary to a proper disposition of the assignments will be stated while considering same.

The first issue raised attacks the action of the court in overruling appellant’s general demurrers directed against appellee’s amended and supplemental petitions. The pleadings so attacked in substance charge mat appellant’s agent represented to appellee that appellant would, in consideration of the $210 note insure appellee against death from April, 1913, to October, 1914, in the sum of $5,000, although she knew at the time such representation was made the appellant would not do so, but made the representation with the fraudulent intent and purpose of inducing appellee to execute the note in order that she might negotiate same with an innocent purchaser, and thereby defraud appellee, and that, relying upon such representations, ap-pellee did execute and deliver the note to said agent, who did, in pursuance of such fraudulent scheme, sell and transfer same to White Banking Company, who was a bona fide holder for value of same, and that in such connection he signed at the request of the agent an application for such insurance, which she represented contained the agreement made, and on which representation appellee relied, but that the agent fraudulently wrote therein the provisions that he was to pay a greater sum than agreed, and that the policy should only cover a period of one year, and that thereafter, upon delivery of the policy and his discovery that it did not comply with the agreement so made, repudiated same, etc.

The proposition asserted is that the court should have sustained the general demurrers on the ground that the facts alleged constituted no ground for recovery, for the reason that appellee, in the absence of any showing of inability to read, or any trick, fraud, or artifice resorted to to prevent his reading, the contract, was bound by its plain, unequivocal, and express terms, and could not rescind same because due to Ms own negligence and carelessness; or, to apply the rule invoked to the facts in this case, that it was the duty of appellee to read the application or contract, and not rely upon the representations of the agent that it contained the agreement actually made. The rule is otherwise. It has been held, under a plea alleging false representations concerning an application for policy of insurance, that when the insured is induced to sign an application by false representations of the agent to the effect that it provides for such policy as agreed upon, while, as matter of fact, it called for another and materially different policy, the insured is not estopped from setting up such false representations, unless inexcusably negligent in not informing himself, though he could have done so by reading the application at the time he signed same. Mutual Life Ins. Co. v. Hargus, 09 S. W. 580; Compagnie Des Mataux Unital v. Victoria Mfg. Co., 107 S. W. 651. In the case of Equitable Life Ins. Co. v. Maverick, 78 S. W. 560, where the facts' are practically identical with those in the instant case, the trial court was requested to charge the jury:

“That, if plaintiff failed to avail himself of the means at hand of ascertaining the truth or falsity of the agent’s representations, he was estop-ped to complain of their untruth.”

The charge was refused by the trial court, which was on appeal assigned as error, and in sustaining the action of the lower court the appellate court said:

“If plaintiff knew the truth of the matter, he could not claim that he was deceived. But, if he did not know it, and relied on the statement of the agent at the time, but could have informed himself of it by means of information at hand, he is not necessarily estopped. This would depend upon whether or not he was inexcusably negligent in not informing himself.”

Whether he was inexcusably negligent was a question of fact for the jury, and that issue was submitted to the jury in the instant case and resolved in favor of appellee’s contention. We conclude therefore that the demurrers were properly overruled. ‘

The next issue is raised by grouping 11 assignments of error, in obvious and flagrant violation of the rules, since the several assignments bring into review the action of the court in submitting as many special issues of fact, and in entering judgment for appellee thereon, and in refusing to instruct verdict for appellant, but, because it is urged thereunder that the transaction between appellant and appellee is illegal and void because in violation of law and hence presents fundamental error, which may be considered however raised, we feel compelled to consider same.

Articles 4897, 4954, Vernon’s Sayles’ Stats., provide, among other matters, that no insurance company shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and of equal expectation of life in reference to the amount or rate charged, etc.; nor shall any company, officer, agent, solicitor, or representative pay, allow, or give, or offer to pay, allow, or give, directly or indirectly, as an inducement to-insurance, any rebate of premiums, etc. Any violation of the articles shall constitute a misdemeanor, and the company shall in the manner provided forfeit its permit and the agent his license. It is contended by appellant, in effect, that notwithstanding it failed to issue appellee the policy agreed upon and in consideration of which his note was executed and delivered, he is nevertheless not entitled to demand the return of the note or its equivalent in ease of sale and negotiation, for the reason that in order to prove his case appellee would have to trace same through an illegal contract; that is, the giving of a rebate in violation of the statute cited. The proposition is grounded on the theory that the parties are in pari delicto, and, being so, the courts will leave them where found. The evidence does disclose that the agent agreed to accept from ap-pellee a sum less than the fixed rate, and it seems to us that it is immaterial what the reason or excuse for so doing was, or whether either party thereto was cognizant of the purpose or effect, since in the last analysis it was in law a discrimination and rebate and forbidden by law, and subjected the company and the agent to the penalties provided in the articles cited. Then does the giving of the rebate affect appellee’s right to recover the value of his note, when sold and the proceeds converted by the appellant? We conclude not. Without reference to the provisions of the statutes penalizing the giving of rebates, and aside therefrom, the rule declared by the great weight of authority is that as long as an illegal contract is executory money or other thing of value paid thereon may be recovered. McCall v. Whaley, 52 Tex. Civ. App. 646, 115 S. W. 658, and cases cited. This is so because such a suit is a disaffirmance of the unlawful undertaking, and is sustained for the same reasons of public policy that deny either guilty party any relief when the unlawful undertaking is consummated. It is true that in the instant controversy it appears that appellee was willing to enter into the unlawful contract and receive the benefits of the rebate offered, and would have done so had the appellant observed its part of the same. The fact remains, however, aside from what the parties really intended or the motives that prompted appellee, that before its consummation he sought the disaf-firmance, which is sufficient under the rule.

Considered from the statutory angle, the rule of disaffirmance is, in our opinion, unaffected by such provisions. The state of Wisconsin has a statute concerning discrim-inations and rebates substantially similar to our statute. In a well-considered case by the Supreme Court of that state it is said, after noting that the purpose of the statute is to protect the insurants:

“The cases in which the court has held that money paid upon a void contract may be recovered back by the payor are cases either where the contract itself is not prohibited by law, but is declared to be void because not made or evidenced in the manner prescribed by law or where the contract is declared void by law as to one party in order to protect the other against injustice and oppression.” Urwan v. Northwestern Natl. Life Ins. Co., 125 Wis. 349, 103 N. W. 1102.

Obviously the statutes cited, were enacted to protect the insurants and prospective in-surants against any discrimination in the amount required to be paid for premiums on life insurance, and belongs to that class of legislation where the prohibited act is void as to that person against whom the prohibition is leveled. Accordingly we conclude that the parties were not in pari delicto under the terms of the statute.

It is next urged that the court erred in submitting three special issues of fact to the jury, for the reason that each issue so submitted assumed as proven another controverted fact. The qualification to the bill of exception presented the action of the court in the respect stated discloses that the special issues complained of were requested by appellant, and that the trial court, instead of submitting them as special charges, incorporated them in his general charge. As was said in I. & G. N. Ry. Co. v. Sein, 89 Tex. 67, 33 S. W. 215:

“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 his counsel, upon appeal, to call in question a ruling of the trial court which was made at his 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.”

Accordingly we conclude the action of .the court in the respect stated was not erroneous.

The next assignment asserts that the court erred in refusing to submit to the jury 3 certain special issues of fact, being in the order named: (1) An inquiry whether appel-lee read the application for insurance, or, if not, whether the agent read it to him; '(2) whether appellee read the policy when delivered to him; (3) whether the agent read the policy to appellee when she delivered it to him. Under the issues raised by the pleading and evidence the facts sought to be elicited were material, and should have been submitted unless substantially covered by the general charge, waived by appellant, or improperly submitted; and appellee contends they were improperly submitted, and with this contention we agree. Appellant submitted to the court as a whole what it terms special issues and explanations and definitions of legal terms with request for its submission, and which consisted, among other matters, of 15 questions or special issues. The court refused the request, to which exception was reserved. The complaint in the brief is that of the 15 issues requested the court erred in not submitting the 3 enumerated. The rule is that the trial court is not required to select from a number of special issues those which are proper to be given and those which are not, and, it appearing that some of the issues so requested en masse were substantially covered by the main charge, and that it would have been improper to repeat them, no error is shown. G., C. & S. F. Ry. Co. v. Garrett, 98 S. W. 657; Western U. Tel. Co. v. Glass, 154 S. W. 604; Hovey v. Sanders, 174 S. W. 1025; Morris v. McSpadden, 179 S. W. 554.

The remaining assignment raises the issue that the court erred in overruling appellant’s motion for a new trial for the reasons enumerated in the motion. The proposition is that, for the reasons set out in all previous assignments contained in the brief, in refusing to instruct for appellee and in refusing to set aside verdict for appellant, in submitting the ease to the jury, in entering judgment, and in overruling the motion for new trial, the court erred. The statement consists of a copy of the motion for a new trial. The assignment is overruled.

For the reasons stated, the judgment is affirmed.
      <g=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <J£s»Eor other cases see same topic and KEY-NUMIiEJJ in all Key-Numbered Digests and Indexes