text:
    DUNN v. HOME NAT. BANK.
    (No. 510.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 9, 1915.
    On Rehearing, Jan. 20, 1916.)
    1. Judges @=>16—Special Judge—Constitutional AND STATUTORY PROVISIONS.
    Const, art. 5, § 11, authorizes parties by consent to appoint a proper person to try a case pending in the district court where the judge thereof is disqualified. Rev. St. 'art. 1676, confers a right of selection of a special judge upon the parties in case of disqualification of the regular judge, and' article 1678 provides that in his absence from the court the practicing attorneys thereof may elect a special judge to hold court. The parties to a suit in the district court, from which the regular judge was absent under quarantine restrictions, agreed to try the ease before a member of the bar. Held, that the special judge was without authority to act, and that his judgment was void.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 46, 63-59; Dec. Dig. <8=»1C.]
    2. Judgment <§=>9 — Judicial Authority — Act oe Parties.
    Parties cannot, independently of constitutional or statutory provisions, confer judicial authority, and where it is attempted to be done the judgment of the appointee is a nullity.
    [Ed. Note. — For other cases, see Judgment, Dec. Dig. <§=>9.]
    3. Judges <@=519 — Special Judge — Jueisdiotion — Bstoppel to Deny.
    Parties who have consented to the appointment of a special judge, in the absence of the regular judge from the district court, are not thereby estopped from denying his jurisdiction.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 64-67; Dec. Dig. <S=»19.]
    4. Appeal and Eerob <@=>185 — Review — Fundamental Eeeoe.
    A special judge’s want of authority to act affects the jurisdiction of the court, and is therefore a fundamental error, which may be first raised on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1166-1176, 1375; Dec. Dig. <@=>185.]
    On Rehearing.
    5. Judgment <@=>9 — Validity — Pabty Not Aeeected.
    In a suit in the district court against the principal and surety on a note, where the principal made no appearance and did not participate in the ineffective agreement by which a special judge acted in the case without authority, the judgment against such principal was a nullity.
    [Ed. Note. — For other cases, see Judgment, Dec. Dig. <@=»9.]
    6. Judgment <@=5237 — Principal—Surety.
    In such suit, and without a discontinuance as to the principal for some reason mentioned in Rev. St. arts. 1842, 1843, the judgment against the surety was erroneous, as, unless a valid judgment was rendered against the principal, the judgment against the surety was improper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 415, 418-421, 429; Dec. Dig. <@=o 237.]
    Appeal from District Court, Martin County; John B. Littler, Special Judge.
    Action by the Home National Bank against Billie Good, principal, and L. O. Dunn, surety. Judgment for plaintiff, and for defendant Dunn over against his codefendant, and defendant Dunn appeals.
    Reversed and remanded.
    J. M. Caldwell, of Midland, and A. L. Green, of Van Horn, for appellant. R. N. Grisham, of Sweetwater, and W. T. Daniel, of Merkel, for appellee.
   HIGGINS, J.

Appellee sued appellant and Billie Good upon a promissory note executed by them. Good made no appearance in the case. The case was tried before Hon. John B. Littler, special judge, who acted as such by virtue of an agreement, entered into between appellant and appellee, which reads:

“The regular judge being absent from court and under quarantine restrictions, the parties hereto agree to try the cause before Hon. J. B. Littler, Esq., of the Big Springs bar, waiving all formalities, except the swearing the said judge, as relates to qualification.”

Upon trial, judgment was rendered in ap-pellee’s favor against Dunn and Good for the amount of the note. Dunn, being a surety, recovered judgment over against Good.

It is assigned as fundamental error that the' judgment entered is void for want of authority in Littler to act as judge. This position is well taken. Section 11 of article 5 of the Constitution authorizes parties by consent to appoint a proper person to try a case pending in the district court, where the judge thereof is disqualified. A right of selection is also conferred upon the parties by article 1676, Revised Statutes, in cases where a disqualification of the regular judge exists. The record here shows no disqualification of the regular judge. It appears that he was absent from the court. In such case the statute provides that the practicing attorneys of the court may proceed to elect a special judge, who shall proceed to hold the court and to conduct the business thereof. Article 1678, R. S. It thus appears that there was no constitutional or statutory authority for the parties to agree upon a judge to act in lieu of the regular judge, and the statutory provision governing under the existing condition was disregarded.

Where a mode of selection of special judges is prescribed by the Constitution, and the causes for such selection are indicated, other modes and other causes are thereby excluded. Parties cannot, independent of constitutional or statutory provisions, confer judicial authority, and where it is attempted to be done a judgment rendered by the appointee is a nullity; and the parties will not be estopped, by their consent, from denying the jurisdiction. 11 Am. & Eng. Ency. Pl. & Pr. 788, and cases there cited; also 23 Cyc. 601. This rule has been applied by the Oourt of Criminal Appeals of this state in Summerlin v. State, 153 S. W. 890. See, also, Whittington v. Butler, 2 Willson, Civ. Cas. Ct. App. § 790; Castles v. Burney, 34 Tex. 470; Mitchell v. Adams, 1 Posey, Unrep. Cas. 117.

Our constitutional and statutory provisions exclude the idea that one other than the regular judge can undertake to exercise judicial authority, except in those instances there mentioned; and when the facts exist authorizing the selection of some one to act in the place of the regular judge, the parties must proceed in the mode prescribed by the statute. The regular judge not being disqualified, the parties were without authority to appoint a special judge by agreement.

The judgment herein rendered was coram non judice. As such it was a nullity, and the parties are not estopped to raise the question. It affects the jurisdiction of the court, and is therefore a. fundamental error, which may be first raised upon appeal. Our attention is directed to Schultze v. McLeary, 73 Tex. 92, 11 S. W. 924; Ford v. Bank, 34 S. W. 684; Ry. Co. v. Rowland, 3 Tex. Civ. App. 158, 22 S. W. 134; Hall v. Jankofsky, 9 Tex. Civ. App. 504, 29 S. W. 517; Campbell v. McFaddin, 31 S. W. 436. These cases do not conflict with the views here expressed. In them statutory authority existed for the selection of a special judge; here there is an inherent lack of authority to select by consent. It was a case governed by article 1678, B. S., requiring an election by the practicing lawyers present.

There are other questions presented for review arising out of errors alleged to have been committed upon the trial; but in view of the fact that the trial was an unauthorized proceeding, it is unnecessary, and we would perhaps not be justified in passing upon the same. Summerlin v. State, supra.

Beversed and remanded.

On Behearing.

Appellee, in his motion for rehearing, insists that the opinion herein of this court is in conflict with the decisions of the Supreme Court and Courts of Civil Appeals in the following cases: Shultz v. Lempert, 55 Tex. 273; Ford v. Bank, 34 S. W. 684; Davis v. Bingham, 46 S. W. 840; Ry. Co. v. Rowland, 3 Tex. Civ. App. 158, 22 S. W. 134; Hall v. Jankofsky, 9 Tex. Civ. App. 504, 29 S. W. 515, and Campbell v. McFadden, 9 Tex. Civ. App. 379, 31 S. W. 437—and moves that the point in conflict be certified to the Supreme Court.

We think there is no conflict. In Campbell v. McFadden it was contended that a special justice of a Court of Civil Appeals was disqualified because he was not a resident of that supreme judicial district. It was held that the special justice was not disqualified, and, if he were in fact disqualified, the question should have been raised in limine. In this ease and in each of the other cases mentioned, it will be observed that a statutory contingency had arisen which authorized the appointment of a special judge and the questions raised relate merely to questions of qualification or regularity of appointment in some matter of detail. In the case at bar, there is no question as to qualification or irregularity in the appointment; but it is a case where a contingency had not arisen which would authorize the parties to agree upon the appointment of a special judge. In other words, there was no statutory authority whatever for the appointment of a special judge by agreement It was a ease governed by article 1678, Bevised Statutes, which requires an election by the practicing attorneys present when the regular judge of the court is absent.

The authorities cited in the original opinion, without exception, lay down the rule that, independent of constitutional or statutory provision, the parties cannot confer judicial authority upon an individual, and that, where this is attempted to be done, a judgment rendered by such appointee is a mere nullity. Our attention is called to no authority to the contrary. In this connection, we call attention to the fact that in Schultze v. McLeary, 73 Tex. 92, 11 S. W, 924, the distinguished trial judge in that case held that his appointment as a special judge was unauthorized. The Supreme Court, in passing upon the validity of his appointment, based their holding upon the fact that one of the parties to the suit was in fact related to the regular judge, so as to disqualify him, and that therefore authority existed for the appointment of a special judge. It would thus seem that by inference, at least, the Supreme Court approved the view of the trial judge that, if the appointment was unauthorized, he would have no authority to exercise judicial authority in the case. If the case at bar involved merely the question of qualification of the special judge, or some irregularity of detail in his appointment and qualification, then we think it would be very clear that appellant would be precluded from raising the question by reason of his agreement and participation in the trial without any objection. But the question is quite different, and goes to the very foundation of the authority of parties to confer judicial power upon an individual by consent or agreement, when there is m> statutory or constitutional authority for them so to do. We think, under the authority cited in our original opinion, it is very clear they cannot do so.

But, aside from the correctness of this view, there is another consideration which imperatively demands a reversal. Appellant, Dunn, was a surety upon the note sued upon for his codefendant, Good. Good made no appearance, and in no wise participated in the agreement by which Judge Littler acted as special judge in the case. Assuredly, as to Good, the judgment which was rendered in the ease was an absolute nullity. Without a discontinuance as to Good, for some of the reasons mentioned in articles 1842 and 1843, Bevised Statutes, the judgment against the surety, Dunn, was erroneous. Douthit v. Martin, 15 Tex. Civ. App. 559, 39 S. W. 944; Woldert v. Durst, 15 Tex. Civ. App. 81, 38 S. W. 215. Good was primarily liable upon the note, and unless a valid judgment had been previously or was at the same time rendered against him, the judgment against the surety, Dunn, was improper, and, there being no valid judgment against the principal upon the note, this requires a reversal of the judgment against Dunn.

The motion for rehearing and to certify is overruled for the reasons indicated.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    INTERNATIONAL & G. N. RY. CO. v. SNEED et al.
    (No. 5570.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.)
    1. Appeal and Error <§=^930 — Receiver — Discharge — Peremptory Instruction — Presumptions.
    Where suit for wrongful death was brought against the receiver of a railroad and afterwards the railroad was joined as a party defendant, the failure to give a peremptory instruction in-favor of the receiver who had been discharged was not reversible error on appeal from a verdict and judgment against the railroad alone, since the jury will not be presumed to have been influenced in fixing the amount of their verdict by the supposed fact that there were two defendants liable to the judgment.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. <©=> 930.]
    2. Marriage <@=»50 — Common-Law Marriage —Evidence—Suebtciency.
    In an action against a railroad to recover for wrongful death, where the defense as to some beneficiaries was that they were illegitimate because decedent had a common-law wife living at the time of his marriage to their mother, evidence held to warrant a finding that no such common-law marriage existed.
    [Ed. Note. — Eor other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. <®=>50.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Paralee Sneed and others against the International & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & Cobbs, of San Antonio, for appellant. J. R. Norton and James Rout-ledge, both of San Antonio, for appellees.
   MOURSUND, J.

This is a suit for damages alleged to have been sustained by reason of the death of John Johnson Sneed, brought by Paralee Sneed, alleged to be the wife of John J. Sneed, John Roosevelt Sneed, a son of John J. Sneed, suing by his mother, Para-lee Sneed, as next friend, Emma Robinson, Charles Sneed, and Jake Sneed, children of John J. Sneed by a former wife, and Henry Sneed and Rachall Sneed, the father and mother of John J. Sneed. The original petition was filed on February 26, 1910, against T. J. Ereeman, receiver of the International & Great Northern Railroad Company. On April 5, 1913, plaintiffs by amended petition made the International & Great Northern Railway Company a party defendant. During the pendency of the suit the Railwáy Company settled with Paralee Sneed and took her release in full. James Routledge and J. R. Norton, attorneys of record for plaintiffs, filed their plea of intervention, alleging that they had a contract with Paralee Sneed, whereby she had assigned to them one-half interest in her cause of auction; that defendants had notice of such contract, and theiefore they were liable to such interveners for one-half of what the jury might find Paralee Sneed would have been entitled to had she not settled with the Railway Company.

The trial resulted in a verdict and judgment in favor of the plaintiffs, other than Paralee Sneed, and in favor of interveners, the sum being apportioned among them. Judgment was rendered upon such verdict against the Railway Company, but the receiver having been theretofore discharged, no judgment was rendered against him.

By the first assignment of error complaint is made because the court failed to give a peremptory instruction to find in favor of the receiver. Appellant contends that it is reasonable to suppose that the jury in fixing the amount of its verdict took into consideration the fact that there were two defendants from whom the judgment could be collected. We cannot assume that there is any probability of jurors so far forgetting or ignoring their plain duty as to make the amount of their verdict depend upon the number of defendants who would be liable for its payment. Besides the jurors certainly understood that Ereeman only held the railroad in a representative capacity, and realized that their verdict, if paid, would be paid from the assets of the Railway Company. No judgment was rendered against the receiver, and the failure to instruct the jury to find in his favor is not such an error as would justify the reversal of the judgment.

The remaining assignments of error complain of the judgment in so far as it awards a recovery to John Roosevelt Sneed and to James Routledge and J. R. Norton. The contention is that Paralee Sneed was not the lawful wife of John Johnson Sneed, and therefore not entitled to recover, and that John Roosevelt Sneed, the son of Paralee Sneed, for the same reason could not recover. This contention is based upon the theory that the undisputed evidence shows that at the time John Johnson Sneed and Paralee went before a justice of the peace and were declared husband and wife, said John Johnson Sneed had a common-law wife. The evidence shows that Sneed, after the death of his first wife, took Ellen Armstrong into his house, and she stayed with him from 5 to 7 years, and had two children by him. There were only a few colored people in the town in which they resided, and it was generally known in the community that they were living together as husband and wife. However, Ellen Armstrong’s testimony is to the effect that she did not recognize Sneed as her husband; that she was merely his housekeeper. She supposed that Sneed claimed in public that she was his wife, but that she never claimed in public that she was his wife, nor did she regard him as her husband at home. Two of Sneed’s children by his first wife testified they called her Mrs. Armstrong; that they never heard their father claim that she was his wife. Sneed’s father testified that Sneed never held her out to he his wife, and that she never claimed to be Sneed’s wife that the witness knew of. Ellen Armstrong also testified she stayed in Sneed’s house until he went off with Paralee to get married, at which time she left; that she had no row with him about Paralee; he told her he was going off to get married, and then she left; that Sneed’s children by his first wife then lived with him and Paralee; that about a month or two after he married Paralee he put up a little house for Ellen close to his mother’s place, in which she resided for a while, and then moved to San Antonio. It is true that she admitted making a statement in the presence of representatives of the railroad company, after Sneed’s death, to the effeet that she had two children by Sneed, and that she had been his wife 10 or 12 years before such statement was made, and testified further that she told the truth then. While the parties lived together and cohabited, and their conduct was such as to lead the public to believe they were married, the evidence supports a finding that there was no agreement to take each other for husband and wife. Both parties apparently regarded the relation as one which could be terminated at will, but naturally to avoid prosecution, permitted the public to believe they were husband and wife. We conclude that the evidence was of such a character as to warrant the jury in finding that no common-law marriage had been proven by appellant.

The judgment is affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    STOUGHTON WAGON CO. v. S. G. DREYFUS CO.
    (No. 24.)

    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1915.
    Rehearing Denied Jan. 6, 1916.)
    Executors and Administrators <@=3261 — Claims — Priorities—'“Expenses oe Administration” — Carrying on Decedent’s Business.
    Where an administratrix, under authority of. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3351, and order of the court, carried on decedent’s mercantile business, the cost of replenishing the stock is included in “expenses of administration,” which, under articles 3458 and 3460, are entitled to priority of payment over general claims existing before administratrix’s appointment.
    [Ed. Note. — Por other cases, see Executors and Administrators, Cent. Dig. §§ 944-974; Dec. Dig. <@=>261.
    Por other definitions, see Words and Phrases, First and Second Series, Expenses.]
    Appeal from District Court, Nacogdoches County; D. D. Guinn, Judge.
    By judgment of the district court, reversing the judgment of the county court, the claim of S. G. Dreyfus Company against the estate of E. R. Stallings, deceased, was given priority, and the Stoughton Wagon Company appeals.
    Affirmed.
    This case is presented to us upon an agreed statement, as follows:
    “It is agreed by the parties hereto that this cause was tried -in the district court of Nacog-doches county, Tex., February 12, 1915, and the following agreement is submitted to the court of Civil Appeals and the Supreme Court for determination, waiving formalities:
    “First. E. R. Stalling, who was engaged in general mercantile business at Garrison, Nacog-doches county, Tex., died intestate on February 10, 1913.
    “Second. That his wife, Ida Stalling, was appointed as temporary administratrix, February 26, 1913, under the following order entered by the probate court of said county: ‘Mrs. Ida Stalling, having made application for appointment as temporary administratrix of the estate of .E. R. Staffing, deceased, she is hereby appointed temporary administratrix of the estate of E. R. Staffing, deceased, with full authority to exercise the following rights and powers with regard to said estate: (a) She shall have authority to collect all life insurance policies owned by said E. R. Staffing at the time of his death on his fife. * * * (b) The said Mrs. Ida Stalling, temporary administratrix, is further authorized and impowered to take charge of and carry on the mercantile business at Garrison, Tex., belonging to the estate of B. R. Stalling, and to make such purchases of merchandise in order to carry same on and pay out such amounts of money for all purchases so made’ and for the purchases made prior to the death of said E. R. Staffing, as may be necessary to successfully carry on said business, (c) The right to collect and receipt for all debts which may be due the estate. * * * ’
    “Third. That Mrs. Ida Stalling was appointed by the court April 22, 1913, permanent admin-istratrix and duly qualified as such.
    “Fourth.' The administratrix filed an inventory May 20, 1913, showing assets $10,173.83, and liabilities $7,668, and of this amount there is listed in the inventory the stock of merchandise $9,000, but by the appraisers discounted 40 per cent., and inventoried at $5,400.
    “Fifth. The administratrix carried on said mercantile business, buying and selling merchandise, until about the 25th of December, 1913, when she sold same at public sale, receiving net from the stock of goods realized from private and public sale, $4,061.04.
    “Sixth. All of the assets consist of cash on hand, $4,061.04, and the estate owes about $16,-000.
    “Seventh. That the appellee sold the adminis-tratrix, as a wholesaler, goods, wares, and merchandises, after she qualified as administratrix, and while she was carrying on said business, for the purpose of enabling her to carry it on.
    “Eighth. That said estate owes appellant the Stoughton Wagon Company, on open account, $44.75, and one note for $627, dated January 16, 1913, due October 15, 1915, bearing 8 per cent, interest and which account and note represents the purchase price of wagons sold E. R. Staffing in his lifetime by the Stoughton Wagon Company, against which wagons there was a mortgage lien taken, which was duly registered in chattel mortgage records of Nacogdoches county, Tex., April 12, 1913, in Mortgage Book N, No. 947 and it was an indebtedness made prior to the death of E. R. Stalling, but not agreed that said wagons were on hand when said Stalling died.
    “Ninth. That the- claims of both appellants and appellee were properly made out and in due time filed and docketed on the claim docket of said court in said cause, but not classified, but in due time were presented for classification, by both appellant and appellee.

      “Tenth. At the November term, 1914, of the county court, S. G. Dreyfus Company et al. presented their application to the court, ashing the court to enter an order classifying all claims made by the administratrix in carrying on said mercantile business, as second-class claims, and that they be preferred over the pre-existing indebtedness of said estate, and be paid in full before the payment of any funds of said estate on any other ordinary pre-existing claims, and to which petition Stoughton Wagon Company, appellant, and others, filed written objections, asking that said claims be not so classified, but be prorated among all the creditors of E. E. Stalling estate, and upon a hearing thereof said probate court entered a decree as follows: ‘ * * This day coming on to be considered the report of administratrix, filed September 17, 1914, showing her conduct of the affairs of the estate, and showing cash in her hands amounting to $4,061.04, same is not acted on; and at the same time coming on to be heard the petition of S. G. Dreyfus Company, a creditor of the estate for debts incurred by the administratrix for mercantile purposes, for the estate’s commercial business since the opening of this administration, asking that said claim be preferred over the preexisting indebtedness of said estate, and be paid in full before the payment of any fund of the estate on pre-existing claims; and at the same time coming on to be heard similar petitions for the following named like creditors, viz.: S. G. Dreyfus Company, Tom Padgett Company, Na-cogdoches Grocery Company, Ardis & Co., Collins County Milling & Elevator Company, Har-grove Manufacturing Company, Eice-Stix Dry Goods Company, and said petitions being heard and considered by the court, the same are not granted, but denied. And it is the opinion of the court, and so adjudged, that the duly proven claims of general creditors of said E. E. Stalling before his death, and the claims as reported in said report by the administratrix as debts incurred by her in carrying on the mercantile business of the estate, amount to $8,621.05, are all fourth-class claims against said estate, 'and of equal standing, and all entitled to be paid in the same proportion, and to receive an equal pro rata distributive payment of the funds of said estate. And the administratrix is ordered to pay, according to law, this judgment; after reserving an amount necessary to pay the costs of administration. To this judgment of the court on classification of claims, the petitioners, S. G. Dreyfus Company, Tom Padgett Company, Na-cogdoches Grocery Company, Ardis & Co., Collins County Milling & Elevator Company, in open court excepted and gave notice of appeal to the district court of Nacogdoches county.’
    “Eleventh. The appellee herein, S. G. Dreyfus Company, appealed from said judgment to the district court of Nacogdoches county, Tex., and on February 12, 1915, said cause was submitted to the district court on the facts herein stated, and the court rendered judgment as follows: ‘February 12, 1915. The issues herein involved, as hereinafter sot out, coming on to be heard this day on appeal of S. G. Dreyfus Company from the judgment of the county court in the matters as set out in the pleadings of said Dreyfus Company, petitioners, as contested by the Stoughton Wagon Company, which judgment of the county court was against the appellant, S. G. Dreyfus Company, and other parties joining in said petition, and ordered the administratrix of this estate to pay all claims against said estate owing before the death of deceased, and all claims growing and made by the administratrix of said estate in carrying on the mercantile business of the estate in equal proportions, and all as fourth-class claims against said estate, and parties plaintiff and defendant appearing, by their counsel announced ready for trial and submitted the matters in controversy, as well of fact as of law to the court, and, the evidence and argument of counsel being heard and considered, it is the opinion of the court that the judgment of the county court, as rendered therein on November 27, 1914, as the same appears in the minutes of said court, Book No. O, p. 106, was erroneous and not justified by the law. It is the opinion of this court that the law is with petitioner S. G. Dreyfus, which petition sets out that said Dreyfus Company is the creditor of the administratrix of the estate of E. E. Stalling for the amount of $2,706.13, for goods sold to said administratrix for said estate in the continuance and carrying on of the mercantile business of said estate, and asked the payment of said indebtedness as a preferred claim over the general debts of said estate due to creditors, or existing before the death of said E. E. Stalling, and that such ordinary debts against said estate, existing before the death of said E. E. Stalling, be not paid or any portion of them, until the satisfaction of the said petitioners’ debts, and other similar indebtedness incurred by said ad-ministratrix in carrying on and the management of said mercantile business. Wherefore it is ordered, adjudged, and decreed by the court that the said claim of said S. G. Dreyfus Company, when duly and legally established as an indebtedness against said estate, incurred by the ad-ministratrix for merchandise purchased by her in carrying on and continuing the mercantile business of E. E. Stalling, deceased, and all other similar claims against such estate, when duly established, be and the same shall be paid by the administratrix of said estate in preference to all fourth-class claims existing against said estate, as incurred by the said E. E. Stalling, deceased, before his death, and that the said fourth-class claims for indebtedness of said E. R. Stalling, incurred by him before his dehth, shall not be paid out of funds on hand, held or to be held by said administratrix, until the said preferred indebtedness of said Dreyfus Company, and other similar claims, duly approved, shall be fully paid up and discharged. It is further ordered, adjudged, and decreed by the court that the Stoughton Wagon Company pay all costs herein incurred on this appeal, and in this court, for which execution may issue. And the clerk of this court is ordered to make a certified copy of this judgment and transmit it to the county court of Nacogdoches county for observance of the matters involved.’
    “Twelfth. The Stoughton Wagon Company filed its motion for new trial, which was duly presented, and by the court, on the 26th day of March, 1915, overruled, to which defendant excepted and gave notice of appeal.
    “Thirteenth. It is agreed that the district court judgment shall be affirmed, provided the court should hold that the claims which have been properly, proven up and made by the ad-ministratrix in carrying on said mercantile business should be paid before and in preference to the debts made by E. E. Stalling in his lifetime.”
    C. A. Hodges, of Nacogdoches, for appellant. Blount & Strong, of Nacogdoches, and S. H. Sanders, of Center, for appellee.

      Application for writ of error pending m Supreme Court.

   CONLEY, C. J.

(after stating the facts as above). The one question involved under the several assignments of error filed by the appellant in this cause relates to the action of the court in allowing as a preference the debts incurred by the administratrix in carrying on the mercantile business during the time she was administering the estate, over the debts of general creditors of the decedent, and which debts were existing claims against the estate at the time the administratrix was appointed, and we proceed to consider only the matter of the classification of the claims.

Article 3458, Vernon’s Sayles’ Texas Civil Statutes, on the classification of claims, provides as follows:

“The claims against an estate shall be classed and have priority of payment as follows: (1) Funeral expenses and expenses of last sickness. (2) Expenses of administration and expenses incurred in the preservation, safe-keeping and management of the estate. (3) Claims secured by mortgage or other liens so far as the same can be paid out of the proceeds of the property subject to such mortgage or other lien, and, when more than one mortgage or lien shall exist upon the same property, the oldest shall be first paid; but no preference shall be given to such claims secured by mortgage or lien further than regards the property subject to such mortgage or other lien. (4) All claims legally exhibited within one year after the original grant of letters testamentary or of administration. (5) All claims legally exhibited after the lapse of one year from the original grant of letters testamentary or of administration.”

Article 3460, Vernon’s Sayles’ Texas Civil Statutes, specifying in what instance the executor or administrator shall pay claims, provides as follows:

“Executors and administrators, whenever they have funds in their hands belonging to the estate they represent, shall pay — (1) Funeral expenses and expense of last sickness, if the claims therefor have been presented within sixty days from the original grant of letters testamentary or of administration, but if not presented within such time their payment shall be postponed until the allowances made to the widow and children, or either are paid. (2) Allowances made to the widow and children, or either. (3) Expenses of administration and the expenses incurred in the preservation, safe-keeping_ and management of the estate. (4) Other claims against the estate in the order of their classification."

Article 3459, Vernon’s Sayles’ Civil Statutes, providing for the pro rata payment of claims where the estate is insolvent, reads as follows:

“Where there is a deficiency of assets to pay all claims of the same class, they shall be paid pro rata; and no executor or administrator shall be allowed to pay any claims, whether the estate is solvent or insolvent, except with their pro rata amount of the funds of the estate that have come to hand.”

Article 3623, Vernon’s Sayles’ Texas Civil Statutes, provides as follows:

“Executors and administrators shall also be allowed all reasonable expenses necessarily incurred by them, in the preservation, safe-keeping and management of the estate, and all reasonable attorney’s fees that may be necessarily incurred by them in the course of the administration.”

Article 3351, Vernon’s Sayles’ Texas Civil Statutes, giving authority to carry on the business of the decedent, if it shall appear to be for the interest of the estate, was in all probability prompted by a recognition, upon the part of the Legislature, of the business principle that a mercantile business is more valuable as an asset if it is a going concern than otherwise, and for that reason, as a general rule, it would be an advantage to the estate and to all parties interested therein, including the creditors, to have the business operated and carried on until it was sold. The necessary expense to administer such a trust, incurred in the effort to maintain the business as a going concern, certainly should include the cost of replenishing the stock of merchandise; for if the merchandise be not kept up to the standard of such business, and replenished as necessity required, certainly the status quo of the business could not be maintained nor the business “carried on” as contemplated by the statute.

It has been held that attorney’s fees incurred in defending a suit against an estate were included in expenses of administration, and entitled to a priority of payment over the general creditors. Williams v. Robinson,' 56 Tex. 347; Ackermann v. Ackermann, 99 S. W. 889.

In the case of Rodgers v. Sturgis National Bank, 152 S. W. 1177, the costs incurred by the administratrix in the care, management, and keeping of a herd of cattle belonging to the estate, were allowed as expenses incurred in the management of the estate, and paid in full, although the estate was insolvent.

Article 3352, Vernon’s Sayles’ Civil Statutes, authorizes any person interested in any estate to file complaint in writing and for good cause shown to obtain an order of the court controlling the action of the executor or administrator in regard to carrying on such business. Under this statute, appellant in this case, if it was not satisfied with the way the administratrix was carrying on the commercial business belonging to the estate, had the right to invoke the powers of the probate court, and ample opportunity to learn, through such a proceeding, the status of such management and operation, and to have the court enter such orders in the premises as might have been necessary to protect and safeguard the rights of appellant and the other general creditors of the estate.

The fact that appellant and the other general creditors did not see fit to invoke the power of the probate court at a seasonable time to protect themselves, but stood by and allowed the administratrix to operate the business at a loss, is not a reason to be urged against recognizing the classification of the claim of appellee as expenses incurred in the management of the estate during its administration, and the allowance of the same as such.

We find no error in the judgment of the district court, and the judgment is in all things affirmed.

Affirmed.
      <gn»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    OLIVER v. OLIVER et al.
    (No. 5565.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1916.)
    1. Appeal and Eebor <@=>275, 501 — Presentation of G-bounds of Review in Court Below — Necessity.
    Assignments of error complaining of the court’s overruling of exceptions cannot be considered where the record did' not show that the exceptions were called to the attention, of the court or that the court made any ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1566, 1567, 1647, 2300-2305; Dec. Dig. <@=>275, 501.]
    2. Paktition <@=>38 — Authority oe Court-Statute.
    Regardless of statute, the district court has jurisdiction to order the sale of lands for partition.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 91, 92; Dee. Dig. <S=>38.]
    3. Appeal and Error <@=>1033 — Review — Harmless Error.
    Where plaintiff, who was entitled to an interest in an indivisible tract of land, sought partition, he cannot complain that the court, without decreeing sale, required him to accept a sum of money in lieu of his interest which was given to the other tenants, where the sum exceeded the value of his interest.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. <©=> 1033.]
    Error from District Court, Hamilton County ; J. H. Arnold, Judge.
    Action by C. F. Oliver against D. M. Oliver and others. There was a judgment awarding plaintiff an amount fixed, but denying sale for partition, and he brings error.
    Affirmed.
    S. R. Allen, of Hamilton, for plaintiff in error. Eidson & Eidson, of Hamilton, for defendants in error.
   JENKINS, J.

Plaintiff in error is one of the eight children of D. M. Oliver and his deceased wife. He brought this suit for partition of the community estate of his deceased mother. The defendants, except D. M. Oliver, answered that they did not desire their interest in the community estate partitioned. D. M. Oliver answered that a part of the land described in plaintiff’s petition was his separate property, and that as to the other the plaintiff had received his portion of the community estate, and, if not, that the land belonging to said estate was incapable of partition, and that he was ready and willing to pay to the plaintiff the amount, if anything, still coming to him, and that 200 acres of the community property was his homestead. The court found that 334 acres of the land described in plaintiff’s petition was the community property of D. M. Oliver and the deceased mother of plaintiff; that plaintiff inherited a one-sixteenth interest in said property; that it was incapable of partition; that 200 acres thereof was occupied by D. M. Oliver and his minor children as a homestead; that the total value of said land was $10,660; that plaintiff’s (C. F. Oliver’s) interest was of the value of $666.25;' that “the plaintiff, C. F. Oliver, has received in advancements and for which he should account the sum of $500,” leaving $166.25 still due him out of said estate; and that “the said D. M. Oliver having paid to the clerk of this court the sum of $166.25, the amount of the interest of said C. F. Oliver in the property sued for, after deducting the $500 heretofore advanced the plaintiff, C. F. Oliver, by defendant D. M. Oliver, said amount to be paid to the said C. F. Oliver by the clerk of this court, and the said Oliver’s receipt taken therefor. The court finds that C. F. Oliver is not entitled to any further interest in the property sued for, and that on account of the finding hereof and the payment of said sum into court that the defendant D. M. Oliver is the owner of the interest of the said C. F. Oliver in the property described in plaintiff’s petition.”

The above facts appear in the judgment of the court. No statement of facts or findings by the trial court appear in the record. The case was tried by the court without a jury.

Plaintiff in error’s assignments of error as to the action of the court in overruling his exceptions cannot be considered, for the reason that it does not appear from the record that such exceptions were called to the attention of the court or that the court made any ruling thereon. Telegraph Co. v. Vance, 151 S. W. 997.

It is the contention of plaintiff in error that the court had no authority to require him to accept the $166.25 in lieu of his interest in the community estate of his deceased mother, but that the court should have ordered the same to be sold. The court found, as it was authorized to do under the statute, that the property of the community estate was incapable of partition. Such being the case, if it was sold as is provided by statute, plaintiff in error would receive only his pro rata portion of the proceeds, less the $500 which he had already received, as found by the court. Unless he would have received more by having the land sold than he received under the judgment of the court, he has no grounds of complaint. He does not complain that the court did not properly value the community estate, or did not allow him all that was coming to him. It appears from the judgment that the court valued the entire tract of land, including the homestead and the improvements thereon, without making any allowance for the fact that defendant in error was entitled to occupy 200 acres as his homestead during his lifetime, by reason of which it would appear that, if the court had ordered the land sold, it probably would not have brought the amount fixed by the court, as' the purchaser would not have been entitled to possession of the 200 acres while occupied as a homestead by defendant in error or his minor children, and such sale might be very detrimental to the interest of the other children. It is true, as alleged by plaintiff in error, that the statute does not provide that the court may decree the land to the defendant in error upon the payment of the balance due plaintiff in error; but the power of the court in this respect is not confined to the statute. Under the general jurisdiction of the district court, it has power to partition the estate. Moore v. Blagge, 91 Tex. 151, 38 S. W. 979, 41 S. W. 465, and Blagge v. Shaw, 41 S. W. 756.

Tbe plaintiff in error having received all, if. not more, than be is entitled to under tbe findings of tbe court, tbe judgment of tbe trial court is affirmed.

Affirmed.
      tg^oFor 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: MIDDLEBROOK, J.

text:
    PRICE et al. v. J. B. FAIRCLOTH & CO.
    (No. 37.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 11, 1915.)
    1. Appeal and Error <@=797 — Motions to Dismiss — Time por Motion.
    Where a case was filed in the Court of Civil Appeals on June 7th, a motion filed on October 2d to dismiss the appeal because the sheriff’s return did not show service of a copy of the petition for the writ of error on defendants in error was made too late.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. <@= 797.]
    2. Appeal and Error <@=655, 660 — Record-Motions to Strike Out.
    Defendants in error filed motions to strike out the transcript and to strike therefrom purported findings of fact on the ground that they were never filed by the court or authorized by him to be filed, that they were prepared to assist plaintiff in error’s counsel in preparing his motion for a new trial, and not for the purpose of appeal or as conclusions of law and fact for filing, and that on the motion for a new trial the question whether a fact not mentioned in such findings was proved was discussed, whereupon the trial judge stated that he remembered the proof of such fact, and thereupon overruled the motion. The motion to strike out was supported by the trial judge’s affidavit and accompanied by a judgment of the trial court purporting to expunge the findings. Held, that the only way such matters could be brought before the Court of Civil Appeals was by certiorari, and the motions would be overruled.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2823-2825, 2829, 2844-2847; Dee. Dig. <@=655, 660.]
    3. Judgment <@=250 — Conformity to Pleadings and Proof.
    Where a buyer of railroad ties was to have the right of inspection, and its inspector refused the ties, the seller could not recover for the ties refused without pleadings and proof warranting such recovery.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. <@=250.]
    4. Judgment <@=251 — Conformity to Pleadings.
    Where, as found by the trial court, plaintiffs sold certain railroad ties which defendants refused to accept, plaintiffs could not recover on a petition alleging that the sale was made to defendants by C. and P., and that the account for the ties was transferred by C. and P. to plaintiffs.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. <@=251.]
    5. Sales <@=214 — Refusal of Goods by Buyer-Remedies of Seller.
    Where defendants ordered lumber from plaintiffs to be manufactured to order, defendants to have the right of inspection, the lumber remained the property of plaintiffs until accepted by defendants, though tendered to defendants and refused on report of their inspector, and plaintiffs’ cause of action, if any, was for damages for breach of the contract.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 571-573; Dec. Dig. <@=214.]
    6.Sales <@=379 — Refusal to Accept — .Election of Remedies — Pleading and Proof.
    Whether parties suing on account of defendants’ refusal to accept railroad ties purchased by them were the sellers or purchasers of the account from the sellers, they could not recover without pleadings and proof showing an election by them to store and preserve the ties subject to defendants’ order and recover the purchase price, to sell the ties as defendants’ agent and recover the difference between the price received and the contract price, or to retain the ties as their property and recover the difference between the market price of the ties and the contract price thereof.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1094; Dec. Dig. <@=379.]
    Error from Jasper County Court; Garland Smith, Judge.
    Action by J. B. Faircloth & Co. against J. M. Price and others. Judgment for plaintiffs, and defendants bring error.
    Reversed and remanded.
    Ingram & Sanders, of Jasper, for plaintiffs in error. Powell & Huffman, of Jasper, for defendants in error.
   MIDDLEBROOK, J.

This is a suit tried in the county court of Jasper county, Tex., in which J. B. Faircloth & Co., a firm composed of J. B. Faircloth and K. J. Smith, were plaintiffs, and J. M. Price and R. C. Downs, composing the partnership of Price & Downs, and W. L. Cunningham and W. D. Peel, composing the partnership of Cunningham & Peel, were defendants. The suit was upon account which plaintiffs alleged was due the firm of Cunningham & Peel by the firm of Price & Downs, alleging that said account had been transferred and payment thereof guaranteed to them by Cunningham & Peel for a valuable consideration, and that thereby Price & Downs became indebted to and promised to pay Faircloth & Co. the sum of $228.55 for lumber and cross-ties sold and delivered by said defendants W. L. Cunningham and W. D. Peel to said defendants J. M. Price and R. C. Downs.

The defendants Cunningham & Peel did not answer, and judgment was rendered against them by default.

The defendants Price & Downs answered by general denial and specially that they did not on the 27th day of February, 1914, become indebted to the plaintiffs in the sum of $228.55 for lumber and cross-ties sold and delivered by said defendants Cunningham & Peel to J. M. Price and R. C. Downs, and also specially denied that they at any time entered into any contract with the defendants W. L. Cunningham and W. D. Peel by the terms of which they became indebted to Cunningham & Peel in the sum of $228.55, or any other sum, and by way of cross-action and counterclaim pleaded that they did, on or about the Sd day of May, 1912, enter into a contract with the plaintiffs, Eaircloth & Co., by the terms of which Eaircloth & Co^ agreed to ship to the Denver & Intermountain Railroad Company, of Golden, Colo., 2,000 pieces, 6x8x6%, 90 per cent, heart, at $13 per thousand, f. o. b. ears at Roganville, Tex., the same being railroad ties, and, relying upon the acceptance of such order, the defendants Price & Downs accepted an order from the McShane Lumber Company, of Omaha, Neb., for 5,000 ties of the same dimensions and class as the order accepted by plaintiffs; that the plaintiffs wholly failed and refused to comply with the terms of said contract on the 1st day of August, 1912, and that, by reason of such failure, the defendants Price & Downs were damaged in the sum of $308.59, and that, by reason of the failure of the plaintiffs to fill their said contract with defendants Price & Downs, Price & Downs were forced to and did pay to the said McShane Lumber Company, of Omaha, Neb., the sum of $808.59, and that said amount was an actual loss to them by reason of the refusal of the plaintiffs, Eaircloth & Co., to carry out and fill their contract with the'defendants; that the defendants Price & Downs were due the plaintiffs Eaircloth & Co., on car No. 256888 the sum of $80.72, and that the plaintiffs should have credit for that sum on the $30S.59, leaving a balance due defendants Price & Downs of $227.87, and that said indebtedness accrued to Price & Downs on the 31st day of March, 1913; that Price & Downs were ready and willing and had at all times been ready and willing to carry out the terms of their contract with the plaintiffs, and that the loss of the $308.59 was wholly on account of the failure of Eaircloth & Co. to carry out their contract with the defendants Price & Downs; that after the date of the acceptance of the contract with the defendants the plaintiffs further ratified the terms of same, and thereby prevented the defendants from protecting themselves by buying the ties from other parties, and fulfill their contract with .the McShane Lumber Company.

In paragraph 8 of Price & Downs’ answer they plead as follows:

“The said defendants Price & Downs would further say unto the court that there was a balance due plaintiffs by said defendants on car No. 256888 in the sum of $80.72, and that plaintiffs are entitled to and should receive credit for said sum, and that said amount deducted from the amount of the loss sustained by reason of plaintiff’s failure and refusal to fulfill the terms of the contract as heretofore set out in the sum of $308.59 leaves a balance due by said plaintiffs to defendants Price & Downs in the sum of $227.87.”

Issue was joined on this feature of the ease by Eaircloth & Co.’s supplemental petition, filed July 6, 1914, in paragraph 5 thereof, as follows:

“Plaintiffs specially deny all of paragraph 8 of said answer, except so much of same as admits that they are indebted in the sum of $80.72 for lumber, and of this put themselves upon the country.”

Faircloth & Co. filed their trial amendment pleading the statute of two years’ limitation in bar to Price & Downs’ cross-action against it. In their supplemental petition heretofore referred to Faircloth & Co. also deny that they ever entered into any agreement with Price & Downs to furnish Price & Downs 2,000 cross-ties as alleged by them, and deny specially that they were due Price & Downs $227.87, as claimed.

The following judgment was entered by the court:

“J. B. Faircloth & Co. v. J. M. Price et al. No. 59. On this 27th day of July, A. D. 1914, this cause was reached and called for trial thereupon, whereupon came the plaintiffs, J. B. Faircloth and K. J. Smith, composing the partnership of J. B. Eaircloth & Co., by .their attorneys, and announced ready for trial, and also came J. M. Price and R. C. Downs, composing the partnership of Price & Downs, by their attorneys, and announced ready for trial, but W. L. Cunningham anü W. D. Peel, composing the firm of Cunningham & Peel, though being duly served, came not, but wholly made default and filed no answer in court, service on each and all of the defendants being perfect and complete, a jury was waived, and all matters of fact as well as of law were submitted to the court, and the court, after hearing the pleadings read and evidence introduced and the argument of counsel, took the ease under consideration until the 17th day of’ August, A. D. 1914, after having duly considered the same, did on the last-named day and date find that the law was with the plaintiffs, J. B. Faircloth and K. J. Smith, composing the firm of J. B. Faircloth & Co., and that the defendants wore justly due and owed the plaintiffs the sum of $228.55, with interest thereon at the rate of 6 per cent, per annum from February 27, A. D. 1914.
“It is therefore ordered, adjudged, and decreed by the court that the plaintiffs, J. B. Eaircloth and K. J. Smith, plaintiffs, composing the firm of J. B. Eaircloth & Co., do have and recover of and from the defendants, Price & Downs, a partnership composed of J. M. Price and R. C. Downs, and of J. M. Price and R. C. Downs, and W. L. Cunningham and W. D. Peel, and of Cunningham & Peel, a partnership composed of W. L. Cunningham and W. D. Peel, and of each and all of said defendants jointly and severally, the sum of $288.55, with interest thereon at the rate of 6 per cent, per annum from February 27, A. D. 1914, until paid, together with, all costs by them in this behalf expended, and for which let execution issue. It is further ordered by the court that the officers of the court have judgment against each party for the costs respectively by them incurred, for which let execution issue. Garland Smith, County Judge, Jasper County.”

In due time motion for new trial was presented and overruled by the court, and the case is in this court on writ of error sued out originally to the First Supreme Judicial District, having been filed in that court on the 7th day of June, 1915. The trial court filed his conclusions of fact and findings of law in the following terms:

J. B. Faircloth & Co. v. J. M. Price et al. No. 59. As conclusions of fact in the above entitled and numbered cause tried before me on the 3d day of August A. D. 1914, I find:

“That in April, 1912, W. L. Cunningham and W. D. Peel were engaged in the manufacture of lumber and ties near Roganville, Tex., and that they were, getting supplies on which to operate from J. B. Faireloth & Co., a firm composed of J. B. Faircloth and K. J. Smith, said firm of Faircloth & Co. doing business at Rogan-ville, Tex.
“That Faircloth & Co. were handling the general output of the mill operated by Cunningham & Peel.
“That on or about the 28th day of April, 1912, J. M. Peel went to the said mill of Cunningham & Peel and asked them if they could fill an order of 2,000 pcs. 6xSx6% heart, and Cunningham, who was in charge of the mill, advised that they could; that J. B. Faireloth was present at the time, and that said J. B. Faireloth and J. M. Price returned from said mill to Roganville together; that in Roganville said J. M. Price placed an order with J. B. Faircloth for 2,000 ties of 6x8x6%, 90 per cent, heart, at $13, f. o. b. Roganville; that there was nothing said as to when ties were to be delivered; that said order was oral; that on May 3, 1912, Price & Downs mailed a written order to J. B. Faircloth, & Co. in confirmation of said oral order given about April 28, 1912.
“I find that J. B. Faircloth & Co. paid for the lumber and ties by way of furnishing them with merchandise, etc., as per their agreement.
“That there was delivered on the railroad at Roganville 409 ties, 6x8x6%, said delivery being completed about the latter part of July, 1912.
“I find that under ordinary conditions the mill of Cunningham & Peel could cut car of ties in two days’ time, and I further find that from April 28 until July 28, 1912, there was considerable rainfall in the vicinity of the mill and Roganville that greatly retarded the operation of the mill and transportation to the railroad.
“I further find that Price & Downs refused to accept said ties on about August 1, 1912, and that neither of them have ever accepted same nor paid any part of the agreed purchase price.
“I find that after the inspector had reported to Price & Downs that he had turned down the ties on the track at Roganville, that they then bought other ties of the same class and dimensions from other parties.
“I find that the ties included in said order from Price & Downs to J. B. Faireloth & Co. were subject to inspection and receipt of an inspector, said inspector to be furnished by Price & Downs. Garland Smith, County Judge, Presiding.”

On October 2, 1915, defendants in error filed in the court at Galveston, Tex., motion to dismiss the appeal, because the defendants in error were not shown by the officer’s return to have been served with a copy of the plaintiffs’ petition for writ of error; and the officer’s return does not state that he served a copy of the petition.

In Zimmerman et al. v. Baugh, 160 S. W. 595, the court decided that a motion to dismiss an appeal because the petition for writ of error was not signed by the clerk came too late, not having been filed in the appellate court within 30 days after the filing of the transcript.

In the instant case defendants in error do not deny that a copy of the petition was properly served upon the defendants in error ; they simply complain that the sheriff’s return does not show such service. This case was filed in the Court of Civil Appeals at Galveston June 7, 1915. The motion to dismiss was filed October 2d. It came too late, and is overruled.

On the 2d day of October defendants in error also filed another motion to strike out the transcript because: (1) It was not filed within 60 days after the return of citation in said cause; (2) because the trauscript filed did not state the truth, in that it erroneously contained what purports to be findings of fact and conclusions of law; that the instrument appearing in the transcript as findings of fact and conclusions of law by the court was never filed by the court, and was not authorized by him to be filed; that it bears no file mark, and should be stricken out; that at the instance and request of C. C. Ingram, and for the purpose only of assisting Mr. Ingram in preparing his motion for new trial, and not for the purpose of appeal, or as conclusions of law and fact to be filed in said cause, the instrument was prepared by the county judge; that upon hearing of the motion for new trial the question of whether or not the plaintiffs introduced in evidence and proved the transfer of the claim of Cunningham & Peel against Price & 'Downs to J. B. Faireloth & Co., was discussed, and the court stated that he had forgotten the introduction and proof by the plaintiffs of the transfer of the account from Cunningham & Peel to J. B. Faireloth & Co. until his attention was called to the fact by plaintiffs’ counsel; that the transfer, as stated, was the first thing offered in evidence upon the trial, and, when so reminded, Judge Smith stated that he then distinctly remembered that the transfer of said claim had been proved, and overruled the motion for a new trial. To this motion is attached the affidavit of Hon. Garland Smith, county judge at that time of Jasper county, in which affidavit he substantially states what is set up in the motion just quoted from.

On the 28th day of October, 1915, defendants in. error filed in this court their motion again asking this court to strike from the record the purported findings of fact as contained in the transcript, assigning substantially the same reason as is assigned in previous motions, and attaching thereto a judgment of the county court of Jasper county, Tex., purporting to expunge the findings of fact from the record.

On the 20th day of November, 1915, plaintiffs in error filed in this court their motion to strike out all the motions theretofore filed by defendants in error because the same were not filed within 30 days after the filing of the transcript in the Court of Civil Appeals;

On the 24th day of November, 1915, the defendants in error replied to the motion of plaintiffs in error asking that said motion be overruled because it had no merit in it, as it did not relate to the form and manner in which said cause was brought before this court, etc., and that rules 8 and 11 are not applicable, as defendants in error’s motion was for the purpose of striking from the record an instrument which is no part thereof, and which could not be legally done except upon a judgment from the trial court declaring said instrument not to he a part of the record. By this last motion and plea defendants in error affirmatively admit that their motions filed in this case previously are not well taken, and should be overruled. We think the only way in which matters of this kind. can be gotten before this court is by certiorari. No such order has been asked of tills court, nor has this court issued any such order. Therefore defendants in error’s motions above set out are overruled. Wells et al. v. Driskill, 105 Tex. 77, 145 S. W. 333, and cases there cited.

It is to be noted that none of the motions filed nor the affidavit of Hon. Garland Smith, nor the judgment of the county court of Jasper county, Tex., seeking to expunge the findings of fact from the record, nor the pleadings in the case in the county court tend to dispute the truth of the findings of fact as contained in the record, so far as such findings go. The complaint is that such findings by the trial court are not complete; the chief complaint being that the findings of fact do not include the introduction and proof of transfer of an account alleged to he due Cunningham & Peel by Price & Downs, which was made the basis of this suit by the plaintiffs’ original petition.

This brings us to the merits of the case. The suit is upon an account which the plaintiffs allege they bought from Cunningham & Peel, alleging that said account was due Cunningham & Peel by defendants Price & Downs, and that Cunningham & Peel guaranteed the payment of said account to plaintiffs, Haircloth & Co.

The findings of fact conclusively show: (1) A verbal order by Price & Downs to Haircloth & Co. (not Cunningham & Peel) for 2,000 cross-ties; (2) that a few days later the verbal order from Price & Downs was ratified by a written order to Haircloth & Co. The findings show that the only conversation Price & Downs ever had with Cunningham & Peel with regard to the ties was to find out whether or not Cunningham & Peel could cut the ties, and, upon being assured that they could do so, Price & Downs entered into an agreement with Haircloth & Co., who had control of the output of Cunningham & Peel’s mill, by the terms of which Haircloth & Co. undertook to furnish to Price & Downs 2,000 cross-ties, f. o. b. cars at Roganville, Tex., such ties to be 6x8x6%, 90 per cent, heart, and subject to inspection by Price & Downs. It shows also that Price & Downs had the ties inspected, and the inspector refused, it would seem, about 409 ties, which were placed on the right of way at Roganville, Tex., and not f. o. b. the cars.

If the ties were up to specification, and it thereby became the duty of appellants to accept them, and appellants refused to do so, according to our calculation, the 409 ties would be worth only $137.24; yet judgment is obtained for $228.55. Under the findings of fact in this case, no such judgment could legally be rendered, and, as the facts are presented to us, we do not see how any judgment could have been rendered against Price & Downs in excess of $80.72. Price & Downs having the right of inspection, and the inspector having refused the ties, it would follow that the plaintiffs, Haircloth & Co., could not recover for the ties refused, unless the pleadings and proof warranted s.uch recovery, neither of which is shown by the record before us.

Again, if the contract of sale and purchase was between Haircloth & Co. and Price & Downs, as the plaintiffs in error alleged, and as the trial court found by his findings of fact, the judgment, if any, against Price & Downs would have to be based upon the transaction between Haircloth & Co. and Price & Downs, and not on transactions between Haircloth & Co. and Cunningham & Peel. The trial court found as a matter of fact that Haircloth was with Price when Price went to Cunningham & Peel’s mill to find out if Cunningham & Peel could cut the ties, and Price gave Haircloth & Co. the order for the 2,000 ties after he and Haircloth had returned to Roganville from the mill, and the written order confirming this verbal transaction was to Haircloth & Co., and not to Cunningham & Peel. Under these facts, Haircloth & Co. could not recover against Price & Downs upon the allegations of its petition.

The lumber manufactured to order for Price & Downs upon their order to Haircloth & Co. remained the property of Haircloth & Co. until accepted by Price & Downs, although it may have been tendered to Price & Downs by Haircloth & Co. The ties were refused on report of the inspector. Such being true, plaintiffs’ cause of action, if any, against Price & Downs was for damages for breach of contract. Tufts v. Lawrence & Co., 77 Tex. 529, 14 S. W. 165; Tufts v. Stuart, 23 S. W. 834; Sonka v. Chatham, 2 Tex. Civ. App. 312, 21 S. W. 948; I. & G. N. Ry. Co. v. Ogburn, 26 Tex. Civ. App. 247, 63 S. W. 1074, and authorities therein cited. See, also, Rose’s Notes, vol. 1, p. 572, and volume 4, p. 47, for line of authorities on this subject.

It follows from what we have said that plaintiffs in error’s first assignment of error, which they inadvertently call their second assignment of error in their brief, which is quite lengthy, but is substantially to the effect that, the allegata and probata not agreeing, the judgment is not warranted, and the trial court should have instructed a verdict for them, or should have granted them a new trial, must be sustained as to the new trial.

Appellants’ second assignment of error is to the effect that the trial court erred in not granting a new trial and in not rendering judgment for defendant company because the pleadings of the plaintiffs and the proof failed to show the election of remedy sought by the plaintiffs:

“(a) Whether plaintiffs stored and preserved the ties in question, subject to these defendants’ order, and are now suing for the entire purchase price.
“(b) Whether plaintiffs, acting as the agent of defendants, sold said ties, and are now asking for the difference in the price received and the contract price thereof.
“(c) Whether plaintiffs retained said ties as their property, and are now asking for the difference in the then market price of said ties and the contract price thereof.”

This is a correct proposition of law, and upon the next trial of this cause should he adhered to by the court.

If Price & Downs had had a contract with Cunningham & Peel, as alleged by the plaintiffs, to furnish them with 2,000 cross-ties, and Cunningham & Peel had delivered the timbers in accordance with such contract, and Price & Downs had refused them, in such event Cunningham & Peel would be bound by this principle of law. Then certainly Fair-cloth & Co., if they had purchased such account or contract from Cunningham & Peel, could get no more against Price & Downs nor any different cause of action than that which Cunningham & Peel had in the beginning. But the findings of fact show the contractual relations to exist directly between Price & Downs and Faircloth & Co.; and the rule of law above quoted is applicable to them. Ogburn-Dalchau Lumber Co. v. Taylor, 126 S. W. 48; Waples et al. v. Overaker et al., 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Stewart Produce Co. v. Gamble-Robinson Com. Co. (Mo. App.) 175 S. W. 319; Mechem on Sales, vol. 2, par. 1678.

In the former trial of this case no disposition whatever is made of the defendants in error’s plea of limitation. It should be disposed of, and the judgment should show what disposition was made of it.

Were it not for the joining of issues by plaintiffs and defendants in this cause on defendants’ answer and cross-action, this court would have to render the case in favor of plaintiff in error; but, issue having been joined by the parties upon answer and cross-action of the one and supplemental petition of the other, the cause is reversed and remanded for trial upon the issues thus made.

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


author: KEY, C. J.

text:
    GULF, C. & S. F. RY. CO. v. PRAZAK et ux.
    (No. 5522.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 17, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1.Death <&wkey;68 — Actions eor Death oe Chilb — Evidence.
    In an action by parents for damages for the wrongful killing of their minor son, the exclusion of testimony that the son bore the reputation of being a bad and unruly boy is error.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 86, 87; Dec. Dig. &wkey;68.]
    2. Appeal and Error <&wkey;856 — Review—Matters to be Considered.
    Where material error has been committed and the jury has decided the issues submitted contrary to the testimony, the appellate court cannot affirm the judgment because there was testimony which might have supported a finding for the successful party upon another issue which was not submitted to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3406-3424, 3429-3434; Dec. Dig. @=3856.]
    3. Railroads <&wkey;358 — Injuries to Persons on Tracks — Trespasser.
    A minor child, who spent the night on a railroad right of way in company with and at the invitation of a watchman at an embankment which had begun to wash out, is not a trespasser, but a licensee.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1236, 1237; Dee. Dig. &wkey;358.]
    4. Railroads (&wkey;395 — Injuries to Persons on Tracks — Actions—Burden oe Prooe.
    Where plaintiffs averred that their minor son was asleep at a point dangerously near defendant’s tracks when killed, they had the burden of proving that he was not guilty of contributory negligence in being in that place of danger when struck.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1339, 1340; Dee. Dig. &wkey;395.]
    5. Railroads &wkey;>400 — Injuries to Persons on Tracks — Contributory Negligence — Jury Question.
    In an action for the death of a minor child killed while on a railroad company’s right of way, the question whether he was guilty of contributory negligence held for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]
    6. Railroads <&wkey;390 — Injury to Persons on Tracks — Last Clear Chance Doctrine.
    Notwithstanding the contributory negligence of deceased in taking a position of danger near the tracks of a railroad company, recovery will not be denied where those in charge of the trdin saw him in time to have avoided the injury by the exercise of reasonable care.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. &wkey;390.]
    7. Railroads <&wkey;358 — Injuries to Persons on Tracks — Duty oe Care.
    Employés in charge of a railroad company, though they knew that the tracks were used in the daytime by persons living in the vicinity and the train was approaching a crossing and town, are not obliged, in the nighttime or very early morning, to maintain a lookout for persons who may be on the tracks.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1236, 1237; Dee. Dig. &wkey;358.]
    8. Railroads &wkey;>398 — Injuries to Persons on Tracks — Actions—Evidence.
    Evidence held sufficient to show that those in charge of a train which struck plaintiff’s minor child were guilty of negligence after discovering his position of peril.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <S&wkey; 398.]
    9. Death <&wkey;95 — Actions eor Wrongeul Death — Damages.
    For the wrongful killing of a minor child, parents’ damages should not exceed a sum equal to the value of the services of the child during minority, less an allowance for expense of maintenance and education.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 108, 109, 111-115, 120; Dec. Dig. &wkey; 95.]

      Appeal from District Court, Burleson County ; Ed R. Sinks, Judge.
    Action by Rudolph Prazak and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    See, also, 170 S. W. 859.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. W. M. Hil-liard and W. W. Rankin, both of Caldwell, for appellees.
   KEY, C. J.

Rudolph Prazak and his wife brought this suit against the railway company, and recovered a verdict and judgment for $1,500 for the alleged wrongful killing of their minor son, Ramond Prazak, and the railway company has appealed.

Without discussing in detail the various assignments of error, we have concluded that the case should be reversed because of the error committed by the trial court in excluding the evidence of certain witnesses offered by appellant, to the effect that they knew the reputation of Ramond Prazak, and that he had the reputation of being a bad and unruly boy, and because we are of opinion that the verdict of the jury is against the manifest weight and great preponderance of the testimony, and therefore the trial court should have granted a new trial. In reference to the excluded testimony the rule is stated as follows in 13 Cyc. p. 354:

“In an action for death by wrongful act evidence is usually admissible as to whether deceased was careful and competent, and also in regard to his reputation for industry and sobriety, his attitude towards his family in respect to provision for their support and kindly treatment, and, where deceased was a minor, as to his ability and willingness to render services or aid in the support of his family.”

In cases of this kind the measure of damages is limited to the pecuniary benefit which the plaintiffs would have derived from the services of the deceased child if he had not been killed; and, in determining what would have been the' probable amount of such pecuniary benefit, it is proper for the proof to show, and for the jury to consider, the character and habits of the deceased child. The testimony given by the plaintiffs tended to show that the deceased was an industrious and obedient son; but as they were directly ihterested in the result of the suit, the jury was not compelled to accept their testimony as true; and, if appellant had been permitted, as it offered to do, to prove by six witnesses that the deceased had the reputation of being a bad and unruly boy, the jury might have fixed the amount of damages at less than the amount awarded by the verdict. The rule of law which admits such testimony was considered and held applicable by this court in Standlee v. Railway, 25 Tex. Civ. App. 340, 60 S. W. 781. We think the court'ruled correctly in excluding evidence offered for the purpose of showing that the deceased had been charged with theft; but, if appellant had offered to prove his general reputation for honesty, industry, sobriety, etc., we think such proof should have been admitted, and the other evidence which was excluded was admissible upon the same principle. It did not relate to specific acts, but involved the question of general reputation as to matters tending to throw light upon the pecuniary value of the deceased, resulting in the main, if not entirely, from the services he would have rendered during his minority.

Turning now to the other question upon which we reverse the case, we find that, while many other grounds of negligence were charged in the plaintiffs’ petition, the .court submitted the case to the jury, in so far as liability was concerned, upon three issues only, and these were: (1) The alleged negligence of appellant’s employés who were operating the train in failing to keep a proper lookout at the place where the deceased was injured; (2) whether or not the deceased was guilty of contributory negligence; and (3) the question of discovered peril, and the failure of the employés in charge of the train to use proper care and diligence to avoid injuring the deceased, after he was discovered in a perilous situation. We refer to the fact that the court did not submit to the jury any question of negligence charged against appellant, except those above referred to, because of the fact that counsel for appellees contend in their brief that the verdict should not be set aside because it was alleged in the plaintiffs’ petition (and they contend that the proof shows) that Aubrey Broadwell, another employé of appellant, who however was not engaged in operating the train, was guilty of negligence, and that the employés who were operating the train, were guilty of negligence in failing to give certain signals. As the issues of negligence in the respects referred to were not submitted to the jury, the argument referred to is unavailing. If material error has been committed in the trial of a case, the appellate court has no right to affirm the judgment, if the jury has decided the issues submitted to them contrary to the testimony, merely because there was testimony submitted which might have supported a finding for the successful party upon another issue which was not submitted to the jury. In other words, when a recovery is sought upon different grounds of negligence, and the court submits to the jury some, but not all, of the acts of negligence alleged, and the proof fails to sustain the verdict upon the issues submitted, there is no rule of law that will permit an appellate court to pass upon the question of negligence not submitted to the jury, and substitute its verdict thereon for what might have been the verdict of the jury. To pursue that course would be to deprive litigants of the right of trial by jury, which is guaranteed by the Constitution. Hence it follows that in considering tile question as to whether or not the yerdict is supported toy the testimony we are limited to the evidence relevant to the issues that were submitted to the jury, and cannot consider any testimony which may tend to show negligence in other respects. So, without making any elaborate argument, we deem it proper to state the salient facts and some of our reasons for concluding that the verdict should be set aside.

On account of excessive rains during the month of December, 1913, appellant’s section foreman in charge of its railroad track at the place where deceased was injured employed Aubrey Broadwell to keep watch at night at an embankment upon which the track was located, and where the embankment had begun to slough off or wash out. Broadwell was 16 years of age, and the undisputed evidence shows that on the night of December 16th, the deceased, Kamond Prazak, went with Broadwell to the place referred to and stayed there with him until he was struck and injured by a 'train which passed that point somewhere near 5 o’clock the next morning. While the proof shows that the deceased was not employed by anyone authorized to act for appellant, there was testimony which would warrant a finding that he accompanied and stayed with the Broadwell boy that night at the solicitation and by the permission of the latter, and, in view of that testimony, we are of opinion that the deceased was not a trespasser, but a licensee, upon appellant’s right of way.

But, notwithstanding that fact, inasmuch as it was alleged in appellees’ petition that at the time of his injury the deceased was asleep at a point dangerously near appellant’s track, the burden was upon appellees to show that he was not guilty of negligence in being in that place of danger at the time he was struck by the passing train. That point was decided in Railway Co. v. Shiflet, 94 Tex. 131, 58 S. W. 945; Id., 98 Tex. 326, 83 S. W. 677. However, we do not agree with counsel for appellant in the contention that this case is entirely analogous to the Shiflet Case, where it was held that a boy 11 years of age was guilty of contributory negligence, as matter of law, because of the fact that he was upon the railroad track at the time he was struck and killed in the nighttime, and that it was immaterial that the track had long been used by the public, and that the boy may have been asleep. That decision was based upon the proposition that an average boy, 11 years of age, was bound to know that if he is upon a railroad track when a train passes he will necessarily be injured; but in this case it was neither alleged nor proved that the deceased was on the track when he was struck by the train. Appellees alleged in their petition, and the appellant admitted in its answer, that at the time referred to the deceased was dangerously near the track. A boy may locate himself at a place dangerously near a railroad track without being aware of the fact that he is so near the track that he may be struck by a passing train. In this ease the witness Broadwell testified that when he last saw the deceased he was sitting on an inverted bucket near the end of one of the cross-ties of the railroad track, and further stated that during the night, while two other trains passed, the deceased had been sitting at or near the same place, and was not struck by either of the two trains referred to.

Hence we hold that the question of contributory negligence was a question of fact, to be submitted to the jury, and that it was proper, as ruled by the trial court, for the jury to consider the age and probable amount of discretion of the deceased in determining whether or not he was guilty of contributory negligence. It is true that the Broadwell boy, who was the only witness that testified concerning the matter, stated that at the time the last train passed the deceased may have been sitting nearer than he was when the other two trains passed, and also stated that he had warned the deceased several times that night in reference to passing trains, and when he heard the train approaching requested the deceased to go with him down the track, where he went for the purpose of ascertaining whether or not the approaching train desired any signal from him, and stated to the deceased that if he remained there he might get hurt, and the deceased replied that the train would look good cutting him up there, or something to that effect. Considering the fact that the burden of proof rested upon appellees to show that the deceased was not guilty of negligence in being in a place of danger at the time he was injured, and conceding that the testimony just referred to tends strongly to show that he was guilty of such negligence, still, in view of his age and probable lack of sound discretion, and of the fact that while sitting near the same place two other trains had passed without injuring him, we are not prepared to say that if the jury reached the conclusion that he was not guilty of contributory negligence, such conclusion was unsupported by the testimony.

However, the verdict of the jury is general, and they may have found that the deceased was guilty of contributory negligence, but that appellant was liable because of the fact that the employés running the train discovered the perilous position of the deceased in time to have stopped the train and prevented the injury, in which event contributory negligence on the part of the deceased would not prevent a recovery.

Turning now to the questions of negligence on the part of appellant which were submitted by the court to the jury, and keeping steadily in mind the fact that the questions so submitted were not the alleged negligence of the employés operating the train in failing to blow the whistle or ring the bell, nor the alleged negligence of the watchman Broadwell, but only the questions of negligence on the part of such employés: (1) In failing to keep a lookout; and (2) if such lookout was kept, failure to stop the train in time to prevent the injury — the material facts relevant to those questions are substantially as follows: The undisputed testimony shows that the night was dark; that the injury occurred at about the middle of a curve in the railroad track; and that the deceased, when last seen by his companion Broadwell, was sitting near the end "of a cross-tie on the inside of the curve. Some of the witnesses testified that the curve was sharp, while others stated that it was slight; but, be that as it may, it is a well-known fact, as testified to in this case by two experienced witnesses that the main part of the light from the headlight of a train from the viewpoint of any one performing the duties of engineer or fireman is cast in a straight line in front of the engine, and therefore, when the track in front of the engine curves, the light from the headlight will not expose to the view of the engineer or fireman as much of the track as it would if there was no curve. In fact, the witnesses referred to said that, in so far as seeing anything upon or adjacent to the track on the curve, the headlight would be of no benefit whatever to the engineer; and, while we concede that the jury was not required to accept that statement as absolutely correct, still reason and common sense teach that a headlight will not render the same assistance to the engineer and fireman upon the engine where there is a curve in the track as would be the case if the track was straight. It is true that the Broadwell boy testified that he and the deceased had a fire near where deceased was sitting, but it was not shown that the fire was blazing to such an extent as would necessarily disclose to those in charge of the train the presence of the deceased. The Broadwell boy testified that when he left him a few minutes before the accident, the deceased was sitting on the bucket with his elbows resting upon his knees and his head resting in his hands; and the testimony of another witness, who examined the place referred to shortly-after the accident, shows that the bucket was so much lower'than the track as to render it improbable that in the brief time consumed by the passage of the train any employs in charge thereof could have recognized the deceased as a human being, occupying a position where he was likely to be struck by the train. It is true that more than one witness, who seem to have subsequently made the test, stated that they had stood at the place referred to in the nighttime, and counted some six or eight telegraph poles from the light given by an approaching headlight, and it was shown that the telegraph poles were about 150 feet apart. But the light furnished by a headlight to those in front or at an angle from the front is quite a different thing from the light furnished to those who are behind the headlight and occupying the .engineer’s and fireman’s places; and the fact that the witnesses referred to could see the various telegraph poles from the light of the headlight is no proof of the fact that the engineer or the fireman could see the persons referred to. But, if such were the case, that would not be the true test, because the deceased was not standing up, but was sitting down with his head and shoulders bent over toward the ground. In fact, several witnesses, who examined the premises soon after the accident, said they saw the print of the bucket and shoe heels in the ground, thereby indicating that some one had been sitting on the bucket with his back towards the track; and one of them, who seems to have made measurements, testified that a bucket located at that place would be 86 inches (or 3 feet) below the top of the rails, and 18 inches from the end of the cross-tie. That is the most satisfactory evidence in the record as to where the deceased was located when his companion Broadwell left him, and indicates that if he had remained there in the position he was when last seen, he would not have been injured. And it also indicates that after Broadwell left him he fell asleep, and that the noise of the train when it reached that point awakened and frightened him, and that in a dazed condition of mind he jumped up and, in doing so, placed himself nearer the track, and therefore was struck by the passing train.

Furthermore, conceding that testimony was submitted showing that for many years the public had been using the railroad track at the place referred to and at a crossing some distance further on as a pathway, and, bearing in mind the fact that some witnesses stated that such use was at night as well as in daytime, still there was no proof of such repeated and continuous use at or about 5 o’clock a. m. as would require those in charge of the train in question to anticipate such use of the track at that time of night, and therefore the failure to keep such lookout during the brief time referred to is not, in our judgment, sufficient proof of negligence. While it is true that the train was approach-' ing the town of Caldwell, which was about a mile and a half further north, it was not in a town or village, nor at a place, where persons might be expected to use the track as a footpath or otherwise at the time that the train in question passed, traveling, according to the undisputed testimony, at a rate of speed somewhere between 10 and 25 miles per hour. Upon that subject we quote as follows from Railway Co. v. Malone, 102 Tex. 273, 115 S. W. 1158:

“The reason for requiring a railroad company to use the care specified to avoid injuring persons who were walking upon its track at a place where it is commonly used is that such use notifies it that people are liable to be there; therefore the operatives of trains must use ordinary care to discover them, and also use such care to avoid injuring them. The rule does not apply to the same place when used at night if the company had notice only of the fact that the public used tbe track in the daytime. The facts must be such as would cause an ordinarily prudent person, under similar conditions, to expect to find people at that place at that time. Bradley v. S. A. & A. P. Ry. Co., 80 Tex. 84 [16 S. W. 55]; Frye v. St. Louis, I. M. & S. Ry. Co. [200 Mo. 377], 98 S. W. 566 [8 L. R. A. (N. S.) 1069].”

It is true that in the case cited the Supreme Court held that the injured party was a trespasser, and therefore guilty of contributory negligence, as matter of law, and that the railroad company owed him no duty of keeping a lookout to see if trespassers were upon the track; and it is true that we hold in this case that the deceased was not a trespasser in going and staying all night with appellant’s watchman Broadwell upon appellant’s right of way, but we do not hold that the fact of his being invited to do so by the watchman gave him a license to go upon the track or place himself in a place of danger; and, as appellant had no ground for supposing that any person was in such place of danger on the occasion referred to, we do not believe that it should be held guilty of negligence, even if its employés failed to keep a lookout for persons upon the track at the time referred to; and in addition to the Malone Case, we cite Laeve v. Railway Co., 136 S. W. 1129, decided by this court. In the case at bar it was not shown that any one had ever been seen walking on the track later than 1 o’clock at night.

This brings us then to the question of discovered peril, which we dispose of as follows: None of the employés engaged in operating the train were placed upon the stand, and there was no affirmative proof that either of them saw the deceased, either before or after he was injured; and the law is well settled that, in the absence of knowledge of the injured party’s perilous situation, the duty of exercising all reasonable means for his protection does not arise. Counsel for appellees make the contention that proof of such knowledge was shown by circumstantial evidence, taken in connection with the averment in appellant’s answer that its em-ployés kept a proper lookout on the occasion in question. The contention is that if such lookout was kept, then the employés referred to must have discovered the deceased and his perilous situation in time to have prevented the injury. Two answers can be-made to that argument: One being that the averment referred to in the answer was not put in evidence by appellees, even if it could have been done—which we do not hold—and the other is that the proof fails to show with any ■ degree of satisfaction that the deceased could have been discovered by those in charge of the train in time to have avoided the injury.

'As the case is to be reversed, we refer to one objection urged by appellant to the charge of the court, which seems to us to be tenable, but which was not made in the court below, and therefore is not held to constitute ground for reversal. Upon the measure of damages the court instructed the jury that if they found for appellees, they should assess their damages at such sum—

“if now paid in cash, that would be equal to the value of the services of the said Ramond Prazak until he arrived at the age of 21 years, and if you find that he would, after having arrived at the age of 21 years, have contributed further sums to the plaintiffs, then for that amount in addition thereto.”

Appellant objects to this charge as being equivalent to telling the jury that appellees would be entitled to recover for the gross value of the services of tire deceased during his minority, without making any allowance for the expense of his maintenance, education, etc. In the text-book called Death by Wrongful Act by Tiffany, § 164, the rule upon this subject is stated as follows:

“In an action for the benefit of a parent for the death of a minor child, the damages necessarily include the loss of the child’s services during minority, and the measure of the damages is the value of the services, less the probable cost of support and maintenance.”

And the same rule is stated in 13 Cye. p. 369, and supported by a long list of authorities. We think that the charge of the court in that respect was misleading, and suggest that it be corrected upon another trial.

We also suggest that the court change the fourth paragraph of its charge, submitting the question of discovered peril, so as to require, as a prerequisite to a recovery, that the jury should not only find the facts therein recited, but should find that the employés operating the train discovered the deceased on the track in time to have stopped the train and prevented the injury.

For the reasons stated, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes