author: McMEANS, J.

text:
    WEBSTER v. INTERNATIONAL & G. N. RY. CO.
    (No. 7154.)
    (Court of Civil Appeals of Texas. Galveston.
    March 10, 1916.)
    1. Appeal and Eerob <&wkey;715(2) — Court oe Civil Appeals — Bower to Ascertain Jurisdiction — Statute.
    By direct provision of Vernon’s Say les’ Ann. Civ. St. 1914, art. 1593, the Court of Civil Appeals has power to ascertain by affidavit or otherwise such matters of fact as may be necessary to the proper exercise of its jurisdiction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2965; Dec. Dig. &wkey;> 715(2).]
    2. Appeal and Error e&wkey;407(l) — Appeal by Writ of Error — Citation.
    A Court of Civil Appeals has no jurisdiction to entertain a writ of error, unless citation in error has been legally served on the defendant in error or service accepted.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2120, 2128, 2129, 2131, 2132; Dec. Dig. <&wkey;407(l).]
    3. Railroads <&wkey;24(2) — Receivers—Service of Process — Agent.
    The agent of the receivers of a railroad corporation under appointment of a court of competent jurisdiction is not the agent of the corporation for service of process, although before the appointment of the receivers he was the agent, and at the time of service of citation upon him he is serving the receivers as agent in the same capacity in which he served the corporation.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 54; Dec. Dig. <&wkey;24(2)J
    Error from District Court, Harris County; Chas. E. Ash, Judge.
    Suit by Lizzie Webster against the International & Great Northern Railway Company. To review a judgment for defendant, plaintiff brings error.
    Writ ordered stricken from the docket.
    James Slyfield, E. H. Vasmer, C. L. Michael, and Guynes & Colgin, all of Houston, for plaintiff in error. Geo. A. Hill, Jr., of Houston, amicus curise.
   McMEANS, J.

Daniel Webster and his wife, Lizzie Webster, brought this suit against the International & Great Northern Railway Company for the recovery of the title and possession of a tract of land in Harris county. Pending a trial Daniel Webster died, and Lizzie Webster was authorized by the court to prosecute the suit in her own name and right. A trial resulted in an instructed verdict for defendant, upon which a judgment in its favor was duly entered. Plaintiff did not perfect an appeal from the judgment, but seeks to have several alleged errors of the trial court reviewed by writ of error to tbis court.

George A. Hill, Esq., a practicing attorney of tbe Harris county bar, as amicus eurise, bas, by an instrument filed in tbis court, suggested tbe want of jurisdiction of tbis court to determine tbe questions presented, for tbe reason that tbe citation in error bas not been served upon tbe defendant.

It appears from tbe record that tbe plaintiff filed her petition for a writ of error in the district court on May 3, 1915, and that citation in error to defendant was issued on May 4, 1915, and that on May 7, 1915, tbe writ was served on S. B. Mobley by tbe sheriff of Harris county. The sheriff’s return indorsed upon tbe writ is as follows:

“Game to band on the 4th day of May, 1915, at 5 o’clock p. m., and executed on tbe 7th day of May, Í915, at 8:45 o’clock p. m., by summoning the International & Great Northern Railroad Company, a corporation, by delivering a true copy of this writ to S. B. Mobley in person, the local agent of the above named company.”

Tbe amicus eurise suggests that on tbe 7th day of May, 1915, tbe day tbe citation in error was served, tbe said S. B. Mobley was neither tbe agent nor employé of tbe International & Great Northern Railway Company, nor in its service, nor bad be been engaged in any capacity of tbe said railway company since tbe 10th day of August, 1914, on which date Jas. A. Baker and Cecil A. Lyon were appointed receivers of said railway company by tbe United States District Court for tbe Southern District of Texas, and that on tbe date tbe citation in error was served on said Mobley be was employed as agent of said Baker and Lyon as such receivers, and bas been in their employment since said 10th day of August, 1914.

Attached to tbe written suggestion, as an exhibit, is tbe affidavit of said Mobley, which we here copy:

“The State of Texas, County of Harris.

“Before me, the undersigned authority, on this 12th day of February, A. D. Í9Í6, personally appeared S. B. Mobley, known to me to be the person whose name is subscribed to the following affidavit, who being by me duly sworn on oath deposes and states as follows, to wit: On the 7th day of May, 1915, citation in error was served on me in cause No. 603731 on the docket of the Eleventh district court of Harris county, Texas, styled Daniel Webster et al. v. I. & G. N. Railway Company. On said date I was neither agent nor employé, nor in the service of the International & Great Northern Railway Company, nor am I now agent or employé or in the service of the International & Great Northern Railway Company, nor have I been engaged in any capacity in the service of the International & Great Northern Railway Company since the 10th day of August, A. D. 1914, on which date Jas. A. Baker and Cecil A. Lyon were appointed receivers of the International & Great Northern Railway Company by the United States District Court for the Southern District of Texas. On the date said citation was served on me I was employed as agent of Jas. A. Baker and Cecil A. Lyon, receivers of the International & Groat Northern Railway Company, and have been since the 10th day of August, 1914, in their employ. S. B. Mobley.
“Subscribed and sworn to before me this 12th day of February, A. D. 1916.
“[Seal.] L. Temme,
“Notary Public in and for
Harris County, Texas.”

There was also attached a certified copy of tbe order of tbe United States District Court for tbe Southern District of Texas, showing tbe appointment of said Baker and Lyon receivers of said railway company on August 10, 1914.

Tbe power of tbis court to ascertain, by affidavit or otherwise, such matters of fact as may be necessary to tbe proper exercise of its jurisdiction is unquestioned. Article 1593, Vernon’s Say les’ Civil Statutes; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659; Dixon v. Lynn, 154 S. W. 650; Jones & Co. v. Gammell, 156 S. W. 317.

It is well settled that tbis court has no jurisdiction to entertain an appeal by writ of error, unless citation in error bas been legally served on tbe defendant in error, or service accepted. Pierce v. Cross, 36 Tex. 187; Thomas v. Childs, Id. 148; Garney v. Menefee, 53 Tex. Civ. App. 490, 118 S. W. 1083; McCloskey v. McCoy, 89 S. W. 450; National Cereal Co. v. Earnest, 84 S. W. 1101.

Whatever may be tbe ruling in other jurisdictions, it bas been held in tbis state that tbe agent of tbe receivers of a railway corporation under appointment of a court of competent jurisdiction is not tbe agent of tbe corporation, although before tbe appointment of tbe receivers be bad been tbe agent of tbe corporation and at tbe time of tbe service of citation upon him was serving tbe receivers as agent in tbe same capacity in which be bad served tbe corporation. Railway v. Moore, 32 S. W. 379.

It affirmatively appearing from tbe affidavit of S. B. Mobley that at tbe time of tbe service of citation in error upon him be was not tbe agent of tbe railway company, and as it appeiars from tbe record that it was upon tbis service that tbe wilt of error was attempted to be prosecuted, tbis court bas not acquired jurisdiction. It is therefore ordered that tbe writ of error be stricken from tbe docket of tbis court (Vineyard v. McCombs, 100 Tex. 318, 99 8. W. 544), with permission to tbe plaintiff to withdraw tbe record in order to perfect service.
      &wkey;oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    EARL v. BAKER et al.
    (No. 7079.)
    (Court of Civil Appeals of Texas. Galveston.
    March 2, 1916.)
    1. Courts <&wkey;30 — Texas—District Court-Jurisdiction.
    Under Const, art. 5, § 8, giving the district court original jurisdiction of all suits for trial of title to land and for enforcement of liens thereon, the district court does not, where suit is in good faith brought to enforce a lien on land, lose jurisdiction because it develops on trial that there is no lien and the amount involved is less than $500, which is the jurisdictional limit of that court.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 119-128; Dec. Dig. <&wkey;30.]
    2. ARPEAD AND ERROR <&wkey;1172(3) — REVERSAL —Effect.
    In a materialman’s suit to enforce his lien and recover for the materials, where the district court improperly dismissed the suit upon it appearing that the materialman was entitled to no lien, the amount involved being- less than $500, that portion of the judgment holding that there was no lien, not having been complained of on appeal, will not be disturbed, though the rest of the judgment will be reversed, rule 62a for Courts of Civil Appeals (149 S. W. x), declaring that if an error affects only a part of the matter in controversy and the issues are severable, the judgment shall be reversed only as to the part affected by the error.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4557, 4558; Dec. Dig. &wkey;> 1172(á)J
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by F. H. Earl against W. E. Baker- and others. From a judgment for defendants, plaintiff appeals.
    Affirmed in part, and in part reversed and remanded.
    P. Harvey, of Houston, for appellant. Townes & Yinson, of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellant against appellees, W. E. Baker, J. B. Murdock, and S. T. Deason, to recover the sum of $327.84, alleged to be due Mm by appellees, and to foreclose an alleged materi-alman’s lien to secure said sum on lot 2 ill toloek 4, Hyde Park addition to the city of Houston..

Plaintiff’s petition alleges in substance that plaintiff at the special instance and request of deBendants had furnished lumber and building material of the value of $802.44, which was used by the defendants Deason and Murdock in the construction of a residence upon the lot before mentioned which was owned by the defendant Baker, and that there remained due and unpaid on the agreed purchase price of said lumber and material the sum of $327.84.

Plaintiff also alleged that at the time the material was furnished by the plaintiff to Deason and Murdock—

“the said Baker agreed with and informed plaintiff that if he would furnish said lumber and material to said Deason and Murdock to be used in the construction of said house that he (the said Baker) would pay plaintiff therefor, and plaintiff alleges that he furnished said lumber and material to said Deason and Murdock on the faith of the statement and promise of said Baker that he would pay for said lumber and material.”

It is further alleged that plaintiff had, within the time prescribed by the statute, presented an itemized account of Ms claim and had filed a verified copy of said account prepared in accordance with the provisions of the statute providing for the fixing of ma-terialmen’s liens. The prayer of the petition was for the recovery of the amount sued for against all of the defendants and for the foreclosure of plaintiff’s lien upon the property before described.

The defendant Baker, joined by Ms wife, filed an answer in which he alleged that he was a married man and the head of a family at the time the contract was made with Dea-son and Murdock for the construction of the house; that the property against which the foreclosure of a lien was sought was bought with the proceeds of the sale of Ms former homestead in the city of Houston; that the contract for the construction of the house was neither signed nor privily acknowledged by Ms wife; and that the plaintiff therefore had no lien upon said property. He also specifically denied that he had ever promised or agreed to pay the plaintiff the balance or any other sum.

Plaintiff by supplemental petition denied the homestead character of the property.

The judgment recites that the matters in controversy—

“of fact as well as of law were submitted to the court,” and that upon due consideration “on this the 4th day of September, A. D. 1914, in open court (the court) announced his opinion to the effect that whereas the plaintiff’s cause of action is for the recovery of the sum of $327.84 against the defendants jointly and severally, and for the foreclosure of an alleged material-man’s lien against the defendant w. E. Baker on lot No. 2 in block 4 of the Hyde Park extension to the city of Houston, Harris county, Tex., belonging to the defendant W. E. Baker, which lien the court is of the opinion and here finds does not exist, and is not a valid and subsisting lien, and without which the court has no jurisdiction to further hoar and determine this cause: It is therefore, ordered, adjudged, and decreed by the court that this cause of action by the plaintiff F. H. Earl against the defendants, W. E. Baker, S. T. Deason, and J. B. Murdock, be and the same is hereby dismissed for want of jurisdiction of this court to hoar and determine the same.”

The only assignment of error contained in appellant’s brief complains of the judgment of the court dismissing plaintiff’s suit for want of jurisdiction.

The proposition submitted under tMs .assignment is as follows:

“Const, art. 5, § 8, gives the district court 'original jurisdiction * * * of all suits for trial of title to land and for enforcement of liens thereon’; and where a suit is brought in a district court, in good faith, to enforce a lien on land, the fact that it develops upon trial that there is no lien, will not deprive the court of jurisdiction to give the parties relief, even though the amount involved be less than $500.”

This is a sound, proposition and the assignment must he sustained. Ablowich v. Bank, 95 Tex: 429, 67 S. W. 79, 881. The rule is otherwise if the allegations of the petition asserting the lien are insufficient; in such case the jurisdiction of the court would depend upon the amount in controversy and upon sustaining exceptions to such allegations, if plaintiff does not amend, unless the amount in controversy is within the jurisdiction of the court, the cause should be dismissed. Telegraph Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8.

No complaint is made of the finding of the trial court against plaintiff’s claim of a lien, and that portion of the judgment should not be disturbed. Rule'62a for the Courts of Civil Appeals (149 S. W. x) provides:

“If it appear to the court that the error (complained of) affects a part only of the matter in controversy and the issues are severable the judgment shall only be reversed and a new trial ordered as to that part affected by such error.”

The case presented by this record comes clearly within this rule. Johnson v. Conger, 166 S. W. 406.

It follows from these conclusions that that portion of the judgment of the court below finding against plaintiff’s claim of lien should be affirmed, and that portion of the judgment dismissing plaintiff’s suit for recovery of the amount claimed by him against all of the defendants should be reversed, and the cause remanded for a new trial upon such claim; and it has been so ordered.

Affirmed in part. Reversed and remanded in part.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    NEWNOM v. HEDEMAN et al.
    (No. 5588.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1916.
    Rehearing Denied March 15, 1916.)
    1. Mortgages &wkey;>151(7) — Priority — Allowance to Widow.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3413, provides for the setting apart for the use and benefit of the widow and minor children all property exempt from execution, with the exception of exemption of one year’s supply of provisions. Article 3414 authorizes an allowance in lieu of such articles exempted which are not among the effects of the deceased. Article 3420 provides that no property on which liens have been given by the husband and wife, acknowledged in a manner legally binding upon, the wife to secure creditors, shall be set aside to the widow or children until the debts secured by such liens are discharged. Article 3422 provides that if the estate on final settlement is insolvent, the title of the widow to all property and allowances set apart is absolute, and cannot be taken for debts of the estate, except as provided by article 3428, which requires payment of funeral expenses and the expenses of the last sickness of the deceased. Before marriage, deceased gave a mortgage on certain property, in which the creditor did not have the wife join after the marriage. Held, that her right to the allowance was superior to the lien of the mortgagee, the provision of article 3420 providing an exception in favor of the creditor, within'whose terms he must clearly bring himself, so that, where the mortgage was not signed by the
    wife, the creditor had no lien as against her claim for an allowance.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 332-336; Dec. Dig. <&wkey;5l51(7)J 2. Executors and Administrators <&wkey;182 —
    Allowance to Widow — Priority — Insolvent Estates.
    In such case, if the estate was insolvent Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 3420, did not apply.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 651, 686-693; Dec. Dig. &wkey;>182.]
    Appeal from District Court, Llano County; N. J. Stubbs, Judge.
    Proceedings between Mrs. May Newnom, surviving widow, and H. E. Hedeman and others to determine priority of claims against the estate of Geo. H. Newnom, deceased. From orders allowing certain sums to the widow but subordinating payment to the claims of mortgage creditors, she appeals.
    Affirmed in part, and in part reversed and rendered.
    J. H. McLean, of Llano, for appellant. Wilburn Oatman, of Llano, for appellees.

      Application for writ of error pending in Supreme Court.

   RICE, J.

This is a controversy between the appellant, the surviving widow of Geo. H. Newnom, deceased, who is executrix of his estate, on the one hand, and appellee and other mortgage creditors of said estate on the other, as to the priority of their claims against said estate over the allowances set apart to her in lieu of exemptions. The facts are substantially these: Prior to the marriage of appellant to said Newnom he had, while a single man, given a mortgage lien to appellee Hedeman to secure a note executed by him to said Hedeman on seven head of cattle, which was a valid, subsisting, and unsatisfied lien, both at the time of his marriage and death, but which had never been signed or acknowledged by his wife after their marriage. Upon his death appellant, his surviving widow, qualified as executrix of his estate, which was insolvent, and, as such, applied to the probate court of Llano county for an order setting apart to her her statutory allowances and exemptions, and in response thereto said court made an order, allowing her $300 for a year’s support and the following sums in lieu of exempt property not on hand m kind, viz.: $500 in lieu of homestead and $495 in lieu of other exempt property — but subordinated the payment thereof to that of all claims secured by mortgage or other lien on the property of deceased. The court, however, found the Hedeman claim to be the only one so secured, and awarded it priority over appellant’s allowances in lieu of exemptions. She, being dissatisfied with that judgment, appealed to the district court, where a similar judgment was rendered, taxing costs of both courts against her, from which she prosecutes this appeal, urging by her first assignment that the court erred in rendering judgment giving priority to the claim of appellee, because She had not signed and acknowledged said claim, as required by law; and, second, because, in addition thereto, said estate was insolvent at the time of her husband’s death.

By article 3413, Yernon’s Sayles’ Kev. Civ. Stats., it is provided that:

“At the first term of the court after an inventory, appraisement and list of claims have been returned, it shall be the duty of the court, by an order entered upon the minutes, to set apart for the use and benefit of the widow and minor children and unmarried daughters remaining with the family of the deceased, all such property of the estate as may be exempt from execution or forced sale by the constitution and laws of the state, with the exception of any exemption of one year’s supply of provisions.”

By article 3414, Id., it is provided that:

“In case there should not be among the effects of the deceased all or any of the specific articles so exempted it shall be the duty of the court to make a reasonable allowance in lieu thereof, to be paid to such widow and children, or such of them as there may be as hereinafter directed.” .

By article 3420, Id., it is provided that:

“No property upon which liens have been given by the husband and wife, acknowledged in a manner legally binding- upon the wife to secure creditors, or upon which a vendor’s lien exists, shall be set aside to the widow or children as exempted property or appropriated to make up the allowances made in lieu of exempted property, until the debts secured by such liens are first discharged.”

Article 3422, Id., provides that:

“Should the estate, upon . final settlement, prove to be insolvent, the title of the widow and children to all the property and allowances set apart or paid to them, under the provisions of this and the preceding chapter, shall be absolute, and shall not be taken for any debts of the estate, except as hereinafter provided.”

Article 3428, Id., provides that:

“The exempted property, other than the homestead, or any allowances made in lieu thereof, shall be liable for the payment of the funeral expenses and the expenses of last sickness of deceased, when presented within the time prescribed therefor; but such property shall not be liable for any other debts of the estate.”

Appellant contends that by reason of the provisions of article 3420, her claim for allowances was superior to that of appellee, and that the court erred in failing to give it priority. We agree with this contention. In the absence of this provision it would seem that any of the property of the deceased, no matter whether mortgaged or not, could, under the statutes above quoted, be applied to the payment of such allowances and exemptions. If this be true, then article 3420, reserving the exempt property, upon which creditors have acquired a lien in accordance with its provisions, from being taken or appropriated for the payment of the exemptions, is an exception to the general rule. Therefore, for the creditor to bring himself within its exceptions, he must literally comply with its provisions, which it appears he has failed to do in the instant case, as the mortgage was not signed and acknowledged by the wife, as required by said article. It is true that at the time of its execution G. H. Newnom was a single man, and hence it could not have been so executed; but no reason is shown why appellant could not have signed and acknowledged it after their marriage. So we think the requirements of the statute have not been met, which, in order to give such claim priority over allowances set apart to the widow and children, makes it necessary for the wife to sign and acknowledge such claim. If deceased had remained single, then appellee had the absolute right to have the proceeds of the mortgaged property applied to the satisfaction of his debt. Having married, his status was changed, and the law applicable to such changed condition must be held to apply. Appellee, failing to bring himself within the terms of the statute, cannot, we think, be held to come within either its spirit or letter, and must be held to have accepted the mortgage with a knowledge of the law, and cannot now claim the benefit of its privileges without complying with its terms.

But, if we are mistaken in this, in the present case article 3420 cannot be held to apply for another reason. The estate is insolvent, and it has been held that this provision will not axoply to insolvent estates. See Krueger v. Wolf et al., 12 Tex. Civ. App. 167, S3 S. W. 663, in which writ of error was refused. For other cases bearing upon the subject here discussed, see Champion et al. v. Shumate, 90 Tex. 597, 39 S. W. 128, 362, 40 S. W. 394; Parlin & Orendorff Co. v. Davis, 74 S. W. 951; Hoffman v. Hoffman, 79 Tex. 189, 193-196, 14 S. W. 915, 15 S. W. 471; McLane v. Paschal, 47 Tex. 365; Abney v. Pope, 52 Tex. 288; Mabry v. Ward, 50 Tex. 404 et seq.; Robertson v. Paul, 16 Tex. 472-475; Giddings v. Crosby, 24 Tex. 295-299; Terry v. Terry, 39 Tex. 310; Mayman v. Reviere, 47 Tex. 357; Griffie v. Maxey, 58 Tex. 210; Ford v. Sims et al., 93 Tex. 586, 57 S. W. 20.

For the reasons stated, the judgment of the court below is reversed, and here rendered in favor of appellant as against the claim of appellee Hedeman, but in other respects it is, in all things, affirmed.

Affirmed in part, and in part reversed and rendered.
      i&wkey;For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    KANSAS CITY, M. & O. RY. CO. v. RUSSELL.
    (No. 933.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 25, 1916.)
    1. Receivbks <&wkey;183 — Liability for Receivers’ Damage to Stock.
    A shipper of live stock, suing for damages thereto while the properties of the railroad were in the hands of receivers, must allege and prove that the receivers had been duly appointed and discharged, and that its property delivered back was equal in value to the amount of the shipper’s claim, or that such claim was made a condition of such delivery of the property by the decree of the court terminating the receivership, and also by what court the receivers were appointed and discharged.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 861-366; Dec. Dig. <&wkey;>183.]
    2. Railroads &wkey;?265 — Receivership — Injury to Shipment op Stock — Pleading.
    Where damage to a shipment of live stock occurred while the railroad was in the hands of receivers, appointed by a federal court, such road will be treated as in the hands of the federal courts when the injury occurred, and the shipper cannot recover therefor.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ S38-853; Dec. Dig. &wkey;>265.]
    3. Carriers <i&wkey;230(12) — Carriage op Live Stock — Instruction—Double Recovery.
    In an action against a railroad for damages to a shipment of live stock, an instruction, authorizing a double recovery, was erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 961; Dee. Dig. &wkey;j230(12)J
    4. Appeal and Error <&wkey;216(l) — Reservation op Grounds op Review — Error in Instruction.
    Under the statutes, where a charge is erroneous, the party aggrieved need only except, pointing out the defects and reserving objection by proper bill of exceptions, though a party aggrieved by an instruction, correct as far as it goes, must request a correct charge, covering the omitted issues or the facts not covered by the main charge.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>216(l); Trial, Cent. Dig. §§ 627-641.]
    Appeal from Foard County Court; G. W. Walthall, Judge.
    Suit by W. S. J. Russell against S. B. Hov-ey and another as receivers of the Kansas City, Mexico & Orient Railway Company of Texas and another. By an amended petition said railroad was made defendant in place of the receivers. From a judgment for plaintiff, defendant railroad appeals.
    Reversed and remanded as to appellant.
    D. J. Brookreson, of Benjamin, for appellant. Robert Cole, of Crowell, for appellee.
   HUFF, C. J.

Russell originally brought suit against S. B. Hovey and M. L. Mertz, as receivers of appellant railway company and the Ft. Worth & Denver City Railway, for damages to a shipment of cattle from Crowell, Tex., to Ft. Worth,' Tex., occasioned by the usual alleged rough handling. After-wards, the appellee amended his petition, making the appellant a party defendant in place of the receivers, dismissing the receivers from the suit. In the ninth paragraph of the amended petition it is alleged that at the time of the shipment and when the suit was filed, and service had, appellant was then in the hands of the receivers, S. B. Hovey and M. L. Mertz, but since which time the receivers were discharged and appellant had taken charge of the railroad and became liable to pay plaintiff his damages. The appellant railway, in its answer, admits that part of the ninth paragraph, alleging that at the time of the shipment and when the suit was instituted, its properties of all kinds were in the hands of S. B. Hovey and M. L. Mertz, receivers, duly appointed by an order of the United States District Court for the Northern District of Texas, at Dallas, which was made and entered on the 9th day of March, 1912, and that they were duly discharged as such receivers by order of the United States District Court, July 9, 1914, and since have surrendered appellant’s line of railroad to it—

“but especially denies that it became liable for any damages occasioned to plaintiff during the time such receivers were operating its properties.”

There is no denial filed by the appellee that the United States District Court appointed the receivers named by appellee and thereafter discharged them. There was a verdict and a judgment against appellant for $180 and against the Ft. Worth & Denver City Railway Company for $20. The Ft. Worth & Denver City Railway Company is not appealing. The testimony all shows that the shipment was made while the receivers were in charge of the road. The pleadings in this case, by both parties, show that the cattle were injured while the road was in the hands of the receivers.

The case of Hovey v. Weaver, 175 S. W. 1089, holds, as we read the case, that, in order to show liability on the part of the railway company, it was necessary to allege and prove that the receiver had been duly appointed, discharged, and the property delivered to the road, and either that such property was equal in value to the amount of plaintiff’s claim, or that plaintiff’s claim had been made a condition of such delivery of the property by the decree of the court terminating the receivership. It is also held in that case that the petition did not show a cause of action, for the reason that it was not alleged in the petition by what court the receivers were appointed and discharged. We believe that that case announces the correct rule. It was incumbent on the plaintiff to allege and prove a cause of action against the railway company.

The appellant alleged the receivers were appointed by the federal court. This was not denied or disproven by the appellee, and, it having been admitted the injury occurred while the road was in the hands of the receivers, we believe the road should be treated as in the hands of the federal courts when the injury occurred. Under the decisions of the courts, as we understand them, appellee did not show a cause of action, either by allegation or proof. Railway Co. v. Ballou, 174 S. W. 337; Hovey v. Weaver, supra, and authorities cited.

The first and second assignments we regard as being well taken, and will be sustained in so far as they require a reversal of the case.

The third assignment we also believe well taken. The charge of the trial court authorized a double recovery, and falls under the rule announced in the ease of Railway Co. v. Lane, 49 Tex. Civ. App. 541, 110 S. W. 530. Under that authority, we sustain the third assignment.

The appellees suggest that if the charge was not correct, appellants should have requested a correct charge. This, under the statutes, was not required of appellant The charge being erroneous, all that was necessary was to escept to the charge, pointing out the defects. This it did, reserving its objection thereto by a proper hill of exceptions. The cases cited by appellee refer to that class of instructions which are correct as far as they go, but which the aggrieved party contends do not cover all the issues, or which charges are not as full as they should be. In that class of cases the courts hold the aggrieved party is not entitled to reversal unless he shall request a correct charge covering the omitted issues, or the facts not covered by the main charge. The case of Wells-Fargo v. Benjamin (Sup.) 179 S. W. 513, cited by appellee, is to the effect above stated.

The judgment as to the Ft. Worth & Denver City Ry. Co., which is not appealing, will be affirmed; but as to the appellant, the case will be reversed and remanded.
      <@=s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: RASBURY, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. LOGAN.
    (No. 7463.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 19, 1916.
    Rehearing Denied March 25, 1916.)
    1. Railroads <&wkey;390 — Injuries to Persons About Tbacks — Discovebed Peril.
    To render a railroad company liable for injuries received by one on or about its tracks under the theory of discovered peril, it must appear the engineer in charge of the train realized such person’s danger, and that he could not or would not extricate himself from the dangerous situation, yet failed to take precautions to avoid the injury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig.. §§ 1324, 1325; Dec. Dig. &wkey;390.]
    2. Railroads <&wkey;400(14) — Injuries to Persons About Tracks — -Actions—Evidence —Direct Question.
    In an action by a young boy hurt when a passing train struck the gate leading from a stock pen to the tracks, the question whether the engineer in charge realized the boy’s position of peril, but failed to take precautions to avoid injuries, held for the jury.
    [Ed. Note. — For other cases, see Railroads, Dec. Dig. &wkey;400(14).]
    3. Damages <&wkey;134(3) — Personal Injuries— Measure.
    Where a boy through the negligence of a railroad company suffered injuries consisting principally of a broken arm, an award of $800 cannot be held excessive on the theory that it did not appear such injury would diminish his earning capacity on reaching majority; there being evidence of mental and physical suffering and permanent injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 368, 389-392; Dec. Dig. &wkey;134 <3).] ...
    4. Trial <&wkey;352(6) — Special Issues — Leading Questions.
    Special issues submitted to the jury, though they be leading questions, are not improper, where they do not in any manner suggest the answer expected, but merely call for an unequivocal answer.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 842; Dec. Dig. &wkey;352(6).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by Jack Logan against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Neff & Taylor, of Waco, for appellant. Shurt-leff & Cummings, of Hillsboro, for appellee.

      Application tor writ of error pending in Supreme Court.

   RASBURY, J.

The appellee, a minor, by his next friend, O. P. Langford, sued appellant in the court below for damages for personal injuries alleged to have been the result of appellant’s negligence. No issues arise upon the pleading, and they will not be stated. Upon the theory that appellant was liable, if at all, on the ground that it discovered appellee in a perilous position in time to have avoided injuring him, the court submitted to the jury certain special issues of fact, and in response to which they found, among other things not essential to recite here, that appellee at the time he was injured was discovered in a perilous position by appellant’s engineer upon the platform of its stock pen, that his peril was known by the engineer, and that he could, by the use of the means at his command and with safety to himself and train, have stopped same before appellee was injured, and that his failure to do so was negligence which proximately caused appellee’s injury, compensation for which was fixed at $800. Upon motion, judgment was entered for ap-pellee for the sum awarded, from which this appeal is prosecuted.

The first assignment of error asserts, in effect, that the evidence adduced at the trial is insufficient to sustain either the special findings of fact of the jury or the judgment of the court entered thereon. We have carefully examined the evidence, and in deference to the findings of the jury it will support the following conclusions of fact; In the town of Irene, where appellee was injured, appellant maintains stock pens built alongside a switch track of the company. -There are gates in the pens opening onto a small platform at right angles with the tracks, and when so opened the gates connect with the stock cars being joined thereto by means of sliding slats or bars, forming a chute through which stock enter the ears over the platform and gangplank or running board which bridges the space between the platform and the car; the space between the platform and car being approximately 18 or 20 inches. At the time the appellee was injured, the gate to the stock pen was standing open at right angles with the switch track with ap-pellee behind it. Appellant’s engineer had hacked his engine and three empty cars into the switch for the purpose of securing two loaded cars which were upon the switch. After coupling on the two loaded cars, the engineer started out of the switch to the main line. As he passed the stock pens, he was going at a speed of 10 miles an hour. Before passing the stock pens and when distant therefrom about 150 or 250 feet, he saw the gate open at right angles with the tracks and saw appellee standing behind it. The tracks over which the train was moving were of light steel, the roadbed was not ballasted, and there were low joints in the track, and vegetation had overgrown the tracks. Passing over such a track at the speed indicated caused the cars to rock and jerk and sway out, particularly loaded cars. The engineer knew the condition of the track, knew he had two loaded cars, and the tendency of the loaded cars to sway out in passing over such track while going at the speed stated. After observing the boy, the engineer did not slacken his speed. One of the loaded cars struck the open gate, which in turn struck appellee, knocking him from the platform and breaking his arm. After observing the appellee behind the gate, the engineer, with safety to himself and the train, could have stopped same before the appellee was injured. Photographs of the track and the gate were before the jury, though not in the record.

We gather from the authorities that for the rule of discovered peril to be applicable in the instant case it must appear that appellee was in a place of danger when seen by appellant’s engineer, and that the engineer realized his danger, and also that appellee could not or would not probably extricate himself from the dangerous situation. H. & T. C. Ry. Co. v. O’Donnell, 99 Tex. 636, 92 S. W. 409. Concerning the knowledge of the engineer of the facts necessary to make the rule available to the injured party, it may also be said that circumstances or facts may be shown from which the jury may conclude that the servant ought to have acquired knowledge of injured party’s peril notwithstanding the servant’s statement that he did not know or realize such peril. Ft. W. & D. Ry. Co. v. Shetter, 94 Tex. 196, 59 S. W. 533. Under the rule stated, it seems to us that the court properly referred the matter to the jury. Appellant’s engineer was aware of the appellee’s situation, saw him standing behind the open gate, knew that only 18 or 20 inches separated the platform from the passing cars, knew that the tracks over which he was drawing the cars were unballasted and had a number of low joints, that such conditions caused the cars to rock, jerk, and sway, particularly the loaded cars, and that the speed at which he was moving increased the tendency to sway.

Thus, it is seen that appellee was in actual danger and appellant’s engineer knew of his danger. He was in that position when the engineer saw him, and he was making no effort to remove himself from such danger, but, according to the engineer, was standing his ground, poking a stick at the approaching engine, and awaiting its approach. Appellee was not, as said in I. & G. N. Ry. Co. v. Vallejo, 102 Tex. 70, 113 S. W. 4, 115 S. W. 25, in a secure place. On the contrary, he was, according to the evidence, in an insecure and dangerous situation of which appellant’s engineer had knowledge, and being in such situation, as further said in the case just cited, if there was a “probability that by the continued movement of the train injury would be inflicted on the boy, the duty to stop the train would have arisen.”

By assignments 3 and 3a appellant asserts that, since the evidence fails to show that appellee’s injury will in any way diminish his earning capacity after he arrives at 21 years of age, the verdict is excessive and should have been vacated. It does not follow, in our opinion, that the verdict is excessive in the absence of proof that the injury would diminish his earning capacity after reaching 21 years of age. Diminished earning capacity is not the only item recoverable by the minor. He may recover fair compensation for mental and physical suffering, the probable future effect of the injury on his health, and for any permanent injury. There was evidence of mental and physical suffering and of permanent injury. The verdict was for $800. Those facts considered, we cannot say, in view of the restricted right to disturb the jury’s findings, that the verdict is excessive.

The seventh and eighth assignments complain of the form of two of the questions submitted to the jury. Special issue No. 1 is as follows:

“AVas Jack Bogan, immediately before he received his injury, standing upon the-platform of the stock pen with the chute gate open at right angles with the railroad track?"

It is urged that the expression, “with the chute gate open at right angles with the railroad track,” is leading and prejudicial.

Special issue No. 2 is as follows:

“Did the engineer in charge of the train that was approaching said stock pens see Jack Bo-gan standing south of the gate with the gate open at right angles with the railroad track?”

It is urged, in reference to this special issue, that it contains the same expression that special issue No. 1 does and is for the same reason advanced above objectionable.

“The rulo as to leading questions, to witnesses is not applied to issues submitted to a jury by a court; and, unless there is an intimation by the court as to what answer is expected or desired, an appellate court will not interfere with the exercise of his discretion.” Sullivan & Co. v. Ramsey, 155 S. W. 580, and cases cited.

To inquire of the jury whether appellee was just prior to receiving his injury standing upon the platform of the stock pen with the gate open at right angles is to ask, of course, a leading question; but it cannot with any force be said that it suggests an expected or desired answer. The only rational or intelligent answer which could be made to the question would be yes or no. That the question does not suggest which of the possible answers is expected or desired is manifest from the fact that the only suggestion of the court is that the answer be yes or no.

The second, fourth, fifth, and sixth assignments raise issues considered by us in discussing the first assignment of error, and, for the reasons there stated, they are overruled.

Finding no reversible error in the record, the Judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: WILLSON, O. J.

text:
    FORD v. JOHNSTON et al.
    (No. 1551.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 20, 1916.)
    1. Bills and Notes &wkey;>209 — Oral Assignments — Right of Assignee to Sue.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6S2, providing that any person to whom a negotiable instrument may have been assigned may maintain any action in his own name ■which the original obligee or payee might have brought, a verbal assignment of a note entitled the assignee to sue thereon.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 423, 42o-427, 497, 498, 501; Dec. Dig. &wkey;209.]
    2. Bills and Notes <&wkey;540 — Actions—Judgment — Conformity to Pleadings and Proof.
    Where plaintiff, suing on a note payable to the order of J., alleged and proved that the note was made payable to J., his agent, instead of to himself as the result of a mutual mistake on the part of defendant and the agent, defendant’s contention that the judgment was erroneous, because it did not appear from the pleadings and proof that the note had been transferred by J. to plaintiff, and that plaintiff had acquired it bona fide and for value, was untenable.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1918-1934; Dec. Dig. <&wkey;> 540.]
    3.' Attachment &wkey;>232 — Abatement—Falsity of Grounds Stated.
    Where the allegations in the affidavit for an attachment, if true, entitled plaintiff to the writ, the fact that they were not true did not entitle defendant to the abatement of the writ, though it might have entitled him to damages on the injunction bond.
    [Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 796, 797, 803; Dec. Dig. &wkey;232.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Action by Edward Johnston against C. E. Ford and another. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    See, also, 164 S. W. 424.
    By his suit commenced in a justice court, appellee Edward Johnston sought a recovery against appellant on the latter’s promissory note dated January 21, 1911, for $75, interest and attorney’s fees, payable, by its terms, on or before January 15, 1911, to the order of John Johnston, and a foreclosure of the lien of a mortgage on certain live stock, also dated January 21, 1911, given by appellant to secure the payment of a note described therein as dated said January 21, 1911, and as payable November 15, 1911. Said appellee also sought a recovery against the appellee J. C. Parish of the value of the live stock mortgaged to him as stated above, on the ground that Parish purchased same of appellant with notice of the fact that it had been so mortgaged. The appeal is by appellant Ford alone from a judgment rendered by the county court, to which an appeal of the cause was prosecuted, in favor of Edward Johnston against appellant for $113.32, the amount of the principal, interest, and attorney’s fees stipulated for in the note, and foreclosing the lien of said mortgage, and also the lien of a writ of attachment levied upon certain cotton belonging to appellant at the instance of said Edward Johnston, and in favor of said Edward Johnston against appellee Parish for $60 as the value of the live stock covered by the mortgage and purchased by him of appellant.
    J. W. Hillman, of Texarkana, for appellant. Turner, Graham & Smitha, of Texar-kana, for appellees.
   WILLSON, O. J.

(after stating the facts as above).

We are of opinion there is no error in the judgment. It is attacked oh' the ground, mainly, that it did not appear from the pleadings and the testimony that the note had been transferred by John Johnston, the payee named therein, to appellee Edward Johnston, and that the latter had acquired it bona fide and for value. In view of the pleadings on the part of appellant, had the suit been by Edvvard Johnston as the transferee of the note, it would have been immaterial to his right to recover on it whether he acquired it bona fide and for value or not. Nor would it have been necessary for him to have known that the assignment to him was evidenced by a written instrument of any kind or by an indorsement on the note. A verbal assignment thereof would have entitled him to sue on the note. Article 582, Vernon’s Statutes; Bank v. Berrott, 23 Tex. Civ. App. 662, 57 S. W. 340; Word v. Elwood, 90 Tex. 130, 37 S. W. 414; O’Connell v. Rugely, 48 Tex. Civ. App. 456, 107 S. W. 151. But the suit was not by appellee Johnston as an assignee. He claimed a right to recover on the note as the payee, and alleged and proved that it was made payable to the order of John Johnston, his father, instead of to himself, and on January 15, 1911, instead of November 15, 1911, as the result of a mutual mistake on the part of his agent, said John Johnston, and appellant. The nature of the suit being as stated, the contentions of appellant based on its being of a different nature are untenable and must be overruled.

The contentions based on the action of the court below in overruling appellant’s motion to abate the writ of attachment cannot be sustained. The allegations in the affidavit, if true, entitled appellee Johnston to the writ. If they were not true, the fact that they were not might have entitled appellant to damages, but did not entitle him to judgment abating the writ. Dwyer v. Testard, 65 Tex. 432. For, as said by the Supreme Court in the case cited:

“The validity of the writ depends, not upon' the truth of the facts stated in the affidavit, but upon the fact that they are so stated. The bond protects the defendant. The injury done him is compensated in the damage he recovers. The plaintiff, in the terms prescribed by law, in the, bond, has contracted with the defendant for his remedy. * * * Ever since the decision of Cloud v. Smith, 1 Tex. 611, it has been the practice to give the plaintiff the benefit of his lien, and leave the defendant to his remedy on' the bond.”

Whether appellant was entitled to an abatement of the writ on proof that the sureties on the bond did not own property subject to execution sufficient to satisfy it, or not, need not be determined, as such proof was not made. On the contrary, the testimony heard on that issue was sufficient to support a finding that they did own enough of such property to make them “good and sufficient sureties” within the meaning of the statute.

The judgment is affirmed.
      ©ssFor other casas see same topic and KEY-NUMBER in all 'Key-Numbered Digests auk Indexes


author: LEVY, J.

text:
    FIDELITY & CASUALTY CO. v. TYLER COTTON OIL CO.
    (No. 1514.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 24, 1916.)
    1. INSURANCE <&wkey;18S(2) — EMPLOYER'S LIABILITY Insurance — Payment op Premiums— Sufficiency ox Evidence.
    In suit by an employer’s liability insurer for a premium, evidence held sufficient to support the finding of the trial court that defendant rendered the insurer-true statements of its pay roll in compliance with the terms of its policies and that defendant had paid all premiums due from it .under the policies.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 245, 404, 405; Dec. Dig. <&wkey;> 188(2).]
    2. Insurance &wkey;>188 — Employee’s Liability Insubance — Liability xoe Premiums.
    Where an employer’s liability policy provided that the premium to he paid should be based on the entire compensation of which an estimate was given in the schedule, also expressly providing that it did not cover indemnity to the assured for injury or death suffered by any reason “unless his compensation is included in the estimate set forth in the schedule,” the fact that the assured failed to include the salaries of its manager and bookkeeper in its report of compensation paid did not entitle the insurer to recover premiums based thereon, since there was no failure on the part of the assured to pay premium if the salaries of such employés did not go in the labor record and were not in the estimated compensation given in the schedule as found.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 394; Dec. Dig. &wkey;ri83.]
    Appeal from Smith. County Court; Jesse F. Odom, Judge.
    Suit by the Fidelity & Casualty Company against the Tyler Cotton Oil Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    The appellant company issued to appellee an employers’ liability policy during the years, respectively, of 1908 and 1909. The amount of compensation paid employés for the period of the policy determined the amount of premium payable for the indemnity provided in the policy. The policy expressly stipulated as follows:
    “The premium is based on the entire compensation of which an estimate is given in the schedule. If such compensation exceeds the estimate set forth in the schedule the assured shall immediately pay the company the additional earned premium; if such entire compensation is less than the estimate set forth in the schedule the company will return the unearned premium when determined; hut the company shall be entitled to not less than the minimum earned premium specified in condition R.”
    The “schedule” of the policy of 1908 and 1909 each stated “estimated average number of employés” to be “20,” and the “estimated compensation for period of policy” to be “85,-000.” The appellant brought the suit under the terms of the policies to reqover the amount of additional earned premium, alleging that the entire compensation of employés, as shown by the actual pay roll of appellee, for the period of each policy respectively, exceeded the estimate set forth in the schedules of the policy. The appellee answered that it had made to appellant correct pay roll of compensation paid, and settled with and paid appellant in full for all amounts of premium due each year on the policies. The case was tried before the court, and judgment was entered for appellee.
    The policy indemnified the appellee—
    “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered through the assured’s negligence, and as the result of an accident occurring while this policy is in force: (a) By any employé or employés of the assured while within the factory, shop, or yard described in the schedule, or upon the sidewalk or other ways immediately surrounding the same provided for the use of such employes or the' public, in and during the operation of the trade or business described in the schedule.”
    The policy provides that the agreement to indemnify is subject to conditions, of which is the following:
    “B; This policy does not cover loss from liability for, or any suit based on, injuries or death suffered or caused by: (1) Any person unless Ms compensation is included in the estimate set forth in the schedule, but this exclusion shall not apply to injuries or death caused by the.insured himself, if an individual or any member of the firm if the insured is a partnership, vice president, secretary or treasurer if tlie insured is a corporation.”
    The trial court made the finding of fact that the defendant rendered to the plaintiff reports showing compensation paid for the period of time covered by the policies, and that they were statements of its pay roll, and that defendant had paid all premiums due under each policy in compliance with, the terms and conditions of the policy.
    J. A. Bulloch and B. C. Johnson, both of Tyler, for appellant. Simpson, Basseter & Gentry, of Tyler, for appellee.
   LEVY, J.

(after stating the facts as above).

There is evidence to support the finding of the trial court that appellee rendered to appellant true statements of its pay roll in compliance with the terms of the policies, and that appellee had paid all premiums due by it under each of the policies. Therefore the assignments of error challenging the action of the court in rendering judgment against appellant must be, it is believed, overruled. The president and manager of ap-pellee testified:

“That the policies introduced in evidence were the ones, or copies of the ones, that had been issued to tho Tyler Cotton Oil Company by plaintiff, and that the reports made under said policies are the reports made by him to plaintiff. That, at the time he made the reports, he took from the books of the Tyler Cotton Oil Company all the labor included in said policies and made a full, true and correct report of it. That no other labor had been paid for by the Tyler Cotton Oil Company except as reported by him under these reports. That he personally made the reports and knew they were correct as shown by and reflected by the books. That the additional premium was paid. That frequently the employés of the Tyler Canning Company would be paid off at the Tyler Cotton Oil Company’s office, and that the amounts paid to the employés of the canning company would be entered upon the books of the oil company. That if the witness Allen in his examination of the books found the figures testified to by him, then they included amounts paid to employs of canning company. * * * That the salaries of the bookkeeper and manager amounting to about $2,500 per year, was not included in the report made by him to the company under either one of the policies, and did not show on the payrolls for labor; and that at the time these policies were taken out he did not intend to include the salary of the bookkeeper and manager, and their salaries did not go on the labor record.”

The fact that the reports of the compensation paid omitted and did not include the salaries of the manager and the bookkeeper would not, it is thought, entitle appellant to recover premiums based thereon. There is not failure on the part of the appellee to pay premium as contracted if the salaries of such persons “did not go on the labor record” and were not in the estimated compensation given in the schedule, as comprehended in the court’s finding. It was contracted, as provided in the policy, that the premium to be paid for the indemnity should be based “on the entire compensation of which an estimate is given in the schedule.” And the policy expressly provides that it does not cover indemnity to the assured for injury or death suffered by any reason “unless his compensation is included in the estimate set forth in the schedule.” It was therefore reasonably meant by the parties that the premium payable was to be based on the entire compensation of all such employés engaged in the business whose compensation was actually included in the estimate set forth in the schedule.

The judgment is affirmed.
      @ut?For other cases see same topie and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    TEXAS & P. RY. CO. v. GRIFFIN et al.

    (No. 1554.)
    (Court of Civil Appeals of Texas. Texarkana
    Feb. 3, 1916.
    Rehearing Denied Feb. 17, 1916.)
    1. Master and Servant @=^279(6) — Injuries to Servant — Negligence—Sufficiency of Evidence.
    In an action against a railroad for death of a member of a switching crew, evidence of the engineer’s negligence in checking his engine too sharply held sufficient to support a verdict for plaintiffs.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 979; Dec. Dig. <&wkey;> 279(6).]
    2. Trial <&wkey;260(8) — Instructions — Repetition.
    In a servant’s action for injuries, where the court in its main charge instructed on the burden of proof, the refusal to give a special charge on the subject was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. <&wkey;260(8).j
    3. Trial &wkey;>260(8) — Instructions—Refusal of Special Issues.
    In a servant’s action for injuries, where the court failed to submit certain states qf fact as a basis of liability in his main charge, the refusal of special charges directing that they could not find for plaintiffs upon such states of fact was proper, jsince the failure to submit the issues was sufficient to exclude them from the consideration of the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 657; Dec. Dig. &wkey;>260(8).]
    4. Death &wkey;>90(5) — Damages — Excessive Verdict.
    In a mother’s action for death of her married son, a railroad switchman, where the mother was 81 years old, in good health for her age, while decedent was 40 years of age, and had received his portion of her property on division among all her children in return for his promise to support her, he having contributed but little in the past through inability, and being her youngest child, so that strong feelings of attachment existed between' them, a verdict for $500 was not excessive.
    [Ed. Note. — For other cases, see Death, Cent, Dig. §§ 125, 126, 130; Dec. Dig. &wkey;99(5).]
    Appeal from District Court, Harrison County; H. T. Dyttleton-, Judge.
    Suit by Mrs. Ada Griffin and others against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    F. H. Prenderga'st, of Marshall, for appellant. S. P. Jones, T. P. Harte, and Beard & Davidson, all of Marshall, for appellees.

      Application for writ of error pending in Supreme Court.

   HODGES, J.

Tile appellees are the widow, daughter, and mother of S. A. Griffin, who was killed while employed by the appellant in its yards at Marshall, Tex. The accident occurred under the following circumstances: The switching crew with which S. A. Griffin was working desired to make a drop or flying switch in order to place a car at a certain point in the railroad yards. Griffin, in obedience to the directions of the foreman, went on top of the car to be placed for the purpose of stopping it when disconnected from the engine. This was his first experience in that line of work, and he was placed there because he was unacquainted with the signals and other things necessary to work in any other capacity with the switching crew. Another switchman took a position on the side of the car for the purpose of uncoupling it at the proper time. After the engineer had given the necessary slack in the speed of the engine, and the car had been uncoupled, it was discovered that it had not passed over the switch as far as desired. Upon investigation it was found that Griffin had fallen from the car and had been run over and killed at the point where the car was uncoupled, and under circumstances indicating that his fall resulted from the jam then produced. In their petition the appellees alleged that the engineer was negligent in his manner of operating the engine on that occasion, in suddenly and violently checking the speed of the car to permit the uncoupling; that he did this by reversing the engine without cutting oft the steam, producing a violent jam which caused the fall of Griffin from his position on top of the car. A verdict was returned in favor of Mrs. S. A. Griffin, the widow of the deceased, for $5,000, the daughter for $2,500, and the mother, Mrs.'Georgia Griffin, for $500.

The first assigned error complains of the conduct of .the court in his treatment of the attorney representing the appellant upon the trial. We have carefully examined the record upon which this complaint is based, and are not inclined to think that this conduct had any effect upon the result of the trial, whatever may be said of it in other respects.

The court gave the following as a part of his main charge:

“If you should find from the evidence that the engineer handling the engine at the time Griffin was killed undertook to slack the speed of the engine by reversing the same without shutting off the steam, and that the same caused the speed of the ears to be so suddenly checked as to cause an unusual jam or jar of the car on which S. A. Griffin was performing his work, and that this caused the said Griffin to fall or to be thrown from said car, thereby causing his death either by the fall or by the car passing over his body, and if you should further find that the engineer was guilty of negligence in so reversing the said engine without shutting off the steam, if you find that he did so, and you should find that the same caused the cars to be suddenly checked, and said Griffin to be thrown from them and killed either by the fall or the car passing over liis body, then you will find for the plaintiffs, unless you find against them under other portions of this charge.”

The testimony clearly indicates that Griffin was thrown from his position on top of the car by the jam produced when the engineer was attempting to give what the witnesses call the “slack” necessary to permit the uncoupling of the car. The charge quoted is objected to: First, because the evidence does not show that the engineer was negligent in tlie manner indicated; second, because there was not sufficient evidence to show that the unusual jar caused Griffin to fall; and, third, because the evidence was not sufficient to show that it was negligence to reverse the engine without shutting off the steam. None of these objections, we think, are tenable. The engine foreman, Moore, who testified for the appellees, stated that the engineer upon that occasion reversed his engine without shutting off the steam. This was denied by the engineer; but he admitted that such a mode of giving slack would be dangerous to the man on top of a car, and would likely throw him off. It appears that Moore had previously made a written statement to the appellant’s claim agent as to how the accident occurred and the manner in which the cars were being handled at the time, in which he had said that:

“There was no rough handling of the cars at any time, no sudden jerks or sudden jars, and that they handled the same in the usual manner and as carefully as could be.”

On cross-examination he was confronted with this statement and asked if he had not signed it. He admitted that he had, but said he did so without reading it, and had assumed that it was a correct record of what he had previously said in answer to questions propounded to him by the claim agent. He had answered the questions in the morning as he went to his work, and signed the statement in the evening on his return home. When pressed to indicate what portions were incorrect, he pointed out only a part of what was material, leaving enough to show an admission that the cars were handled on that occasion in the usual manner and as carefully as they could be. This written statement was subsequently put in evidence to impeach Moore. In some respects it is inconsistent with his testimony that the engineer upon that occasion reversed his engine without cutting off the steam. If we consider that testimony in connection with the admission of the engineer that to reverse the engine without first shutting off the steam was not their usual method of making such switches, and that it would be dangerous to a man on top of the car, we have evidence of negligence sufficient to support the verdict and the charge of the court.

The court in other portions of his main charge instructed the jury on the burden of proof, and there is no merit in the assignment based upon the refusal of the court to give a special charge upon that subject.

Special charges were refused which directed the jury that they could not find for the plaintiffs upon certain states of fact which were set out in the appellees’ original petition. The failure of the court to submit those issues in his main charge was sufficient to exclude them from the consideration of the jury, and special charges upon that subject would have been mere matter of argument upon which the court was not required to enter.

It is also contended that the verdict of the jury is excessive, especially the allowance of $500 to the mother. The evidence shows that Griffin at the time of his death was 40 years of age; his mother was 81 years old, and in good health for one of that age; that she had previously divided all of her property among her children, and was dependent upon them for her support; that S. A. Griffin, the deceased, had received his portion and had promised to support her. She admitted that he had contributed but little in the past, but said that he gave as an excuse for his failure that he was unable to do so. She further testified that he was her youngest child, and that strong feelings of attachment existed between them. Under these circumstances we cannot say as a matter of law that the mother had no right to expect contribution from her son. It presents the instance of an aged woman, doubtless unable to do anything toward earning a support, who, having distributed her property among her children, became dependent upon them for her support during the remainder of her life. She had as an assurance that this would be done, not only the natural attachment usually existing, but the promise of her son, which the jury had a right to infer was based upon the fact that he had received his distributive portion of his mother’s estate during her lifetime. Under these circumstances we cannot say that the verdict was excessive.

The judgment of the district court is affirmed.
      <£rr>For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    NORTH AMERICAN INS. CO. v. JENKINS.
    (No. 7099.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 23, 1916.)
    1. Appeal and Error <&wkey;569(2) — Matters Reviewable — Record on Appeal — Statement op Facts.
    Though an instrument called a “statement of facts” is found in the record, where it is not signed by counsel for plaintiff or approved by the court, it cannot be regarded as a statement of facts proved at the trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2531, 2532, 2543; Dec. Dig. ■&wkey;>569(2).]
    2. Justices op the Peace <&wkey;141(2) — Jurisdiction — Appeal.
    Where a justice court has no jurisdiction of suits for the recovery of more than $200 under Const, art. 5, § 19, the court on appeal from the judgment of the justice court cannot award a sum in excess thereof, so that, where a suit was for $200 and the court gave judgment for the principal and a penalty and items exceeding the amount, the judgment was invalid.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 472; Dec. Dig. <&wkey;> 141(2).]
    3. Appeal and Error <&wkey;1132 — Refusal — When Necessary.
    Where a judgment of the county court affirming a justice court’s judgment added a penalty and items in excess of the amount legally within the jurisdiction of the justice court, though the judgment was invalid, it could be reformed and affirmed instead of being reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4447; Dec. Dig. &wkey;>1132.]
    4. Insurance <&wkey;lSG(2) — Accident Insurance — Premiums—Time op Payment.
    Whether time for payment of premiums on a policy of accident insurance is of the essence of the contract depends altogether on the wording thereof, and it cannot be said that as a matter of law time is of the essence.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. &wkey;>186(2).]
    5. Appeal and Error <&wkey;544(l) — Matters Reviewable — Record on Appeal.
    The court on appeal cannot say that the conclusion reached by the trial judge was erroneous, in the absence of a statement of facts as to the disputed question; the conclusion being all that is required of the judge.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 2412; Dec. Dig. <&wkey;>544(l).]
    6. Appeal and Error <&wkey;294(l) — Matters Reviewable — Reservation op Exceptions.
    Where a party desires to have the judge’s conclusion reviewed, he should call attention to alleged insufficiency of evidence in a motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1727, 1732, 1733; Dec. Dig. &wkey;294(l).]
    Error from Galveston County Court; George E. Mann, Judge.
    Action by Edna Jenkins against the North American Insurance Company. From a judgment of the county court affirming judgment of the justice court for plaintiff, defendant brings error.
    Reformed and affirmed.
    Wilson & Webb, of Galveston, for plaintiff in error. O. S. York, of Galveston, for defendant in error.
   McMEANS, J.

Edna Jenkins brought this suit against the North American Accident Insurance Company in the justice court of Galveston county to recover $200, the-amount of an accident insurance policy issued by defendant to her husband, Edward Jenkins, in which she was named as beneficiary; the said Edward Jenkins having been killed. A trial in the justice court resulted in a judgment for plaintiff for the amount sued for. The defendant appealed the case to the county court, where, upon a trial before the court without a jury, a judgment was rendered for plaintiff for $200, the amount of the policy, and for $50 as attorney’s fees and 12 per cent, penalty, amounting to $24, aggregating $274. From this judgment the defendant has prosecuted a writ of error to this court.

No statement of facts accompanies the record. An instrument styled “statement of facts” is found among the papers of the case, but it does not appear to have been signed by the counsel for the plaintiff or approved by the court, and it cannot therefore be regarded as a statement of the facts proved at the trial. The court, however, reduced to writing and filed its findings of fact, and we here copy the same:

“The policy sued on was issued by defendant on life of Jenkins, payable to his wife, the plaintiff; premium $1.50 payable first day of each month in advance. Insured paid at such times as was convenient, seldom on day premium was due. On January 18th insured paid for December, and told agent he would have to call again for the January payment. This was assented to. A few days afterwards, insured was stabbed, and his wife sent for the agent and told him she wanted to pay for January. He told her that, as her husband was stabbed, he could not receive the premium. The husband died next day from the wound.”

Upon the foregoing findings of fact, the court concluded as a matter of law that:

“The custom of the company in receiving premiums after due dates, and the offer of the wife to pay, render the company liable. The clause of the policy and ‘General Agreement’ is so involved and complicated that no negro could be expected to understand it, and the court does not understand it, as to when less than the whole amount of policy is to be paid, and therefore I conclude plaintiff is entitled to full amount, $200, of the policy and reasonable attorney fees, fixed by the court at $50, and statutory damages of 12 per cent.”

We are confronted in limine with what appears to be a fundamental error apparent upon the face of the record in the proceedings in the county court. The transcript from the justice court shows-that plaintiff’s suit ,was for the recovery of exactly $200. This was an amount within the jurisdiction of that court. Article 5, § 19, Constitution. It does not appear that either of the parties filed written pleadings in either court, or that the plaintiff after the case reached the county court sought a judgment for a greater sum than that sued for in the justice court; but, notwithstanding this, the county court not only rendered judgment for plaintiff upon the item and for the amount sued for in the justice court, but upon other items and for additional amounts which made the amount of the recovery beyond the jurisdiction of the justice court. It is well settled that an appeal cannot confer upon an appellate court jurisdiction which the court a quo did not possess. Taylor v. Lee, 139 S. W. 908, and authorities cited. The justice court not having jurisdiction where the amount in controversy exceeds $200, the county court’s jurisdiction is limited to sums not in excess of that amount, because the county court acquired by the appeal only such jurisdiction as the justice court had. The rendition of the judgment for $274 is therefore clearly erroneous.

But we are not under the necessity of reversing the judgment and remanding the case on account of the error, because the judgment, if no other error is pointed out which requires a reversal, may be reformed by omitting therefrom a recovery for the items of attorney’s fee and penalty, for which the court erroneously gave judgment, thereby leaving in force and effect a judgment for $200, being the amount of the policy sued upon and which amount was within the jurisdiction of the court.

Error is assigned to the refusal of the court to set the judgment aside because, as plaintiff in error contends, the same is not based upon the findings of the court as filed. It is contended under this assignment, in effect, that when a policy of insurance provides that the premium shall be paid on a stipulated day, time becomes of the essence of the contract, and the failure to pay the premium at the time stipulated determines it in the absence of waiver or estoppel ; and that under the judge’s fact findings he should have concluded as a matter of law that the policy was forfeited.

Whether the obligation to pay a 'premium at a time specified is of the essence of the contract of insurance largely depends upon the provisions of the contract itself. The contract is not before us, not having been brought up in a statement of facts, and its provisions are not recited in the court’s findings. We do not know as a fact that there was a provision of the policy providing for a forfeiture in case of a failure to pay the premium at the time stipulated, nor can we say that there was not a provision which justified the conclusion that the custom of receiving premiums after maturity and the offer to pay the premium .which was refused did not constitute a waiver of payment at the time specified in the policy. The court concluded that the custom of the company in receiving premiums after due dates, and the offer to pay the last premium after its maturity, rendered the company liable. Whether or not this conclusion was warranted by the evidence is a question which the absence of a statement of facts precludes us from determining, unless the findings of the judge, on their face, show that it was not. Harrison v. Fryar, 8 Tex. Civ. App. 524, 28 S. W. 250. The findings of the judge are in no wise inconsistent with his conclusion, and it is only the conclusion which ,we can look to in reviewing a judgment without a statement of the evidence. The judge is not required to state the evidence, but only his conclusion, and he does not say that the facts mentioned were all that were put in evidence affecting the question. Consistently with those stated, every other fact necessary to justify Ms conclusion may Rave been shown, and may have added their force to those named in producing the conclusion at which the court arrived.

Appellant, if it desired to attack the conclusions as unsupported by the evidence, ought to have brought up the facts, or at least have pointed out to the court below, in a motion for a new trial, the insufficiency of the evidence to support the conclusion. The judgment of the court below will be reformed so as to deny recovery for a sum in excess of $200, the amount sued for in the justice court, and as reformed is affirmed.

Reformed and affirmed.
      other cases see same topic and XEY-NUMEER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    ANDERSON et al. v. ENGLER et al.
    (No. 5632.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 8, 1916.)
    1. Appeal and Error <&wkey;78i7 — Grounds bob Dismissal — Failure to Pbosecute Proceedings.
    Where no transcript was filed until nearly six months after trial and no briefs were filed until four days before the time set for submission, the appeal will be dismissed for want of prosecution unless there was fundamental error iu the trial of the cause.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3129, 3130; Dec. Dig. <&wkey;> 787.]
    2. Easements <&wkey;18(l) — Wat ob Necessity— Statute — Construction — Intention ob the Legislature.
    Where the defendants’ land was bounded on three sides by the Rio Grande river and on the fourth by the land of one of the plaintiffs, they could not invoke the provisions of a law enacted in 1884 (Gammel’s Laws Tex. vol. 9, pp. 600-602), requiring a right of way be left across land surrounding the land of another, as that law did not by its terms apply to the defendants’ tract, and the court had no authority to extend the law to include land evidently not eontemr plated by the Legislature.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 50, 52, 55; Dec. Dig. <&wkey;>lS(l).]
    3. Statutes <&wkey;167(l) — Repeal — Acts Not Carried Into Revisal.
    Where, in adopting the Revised Statutes of 1895 and of 1911, it was in each case provided that all civil statutes of a general nature in force when the Revised Statutes took effect and not included therein or not expressly continued in force were repealed, a law enacted in ]S84 (Gammers Laws Tex. vol. 9, pp. 600-602), which was not carried into either Code and which was not in either case among the exceptions to the repealing clause, was repealed.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 242; Dec. Dig. <S=»167(1).]
    Appeal from District Court, Cameron County; W. B. Hopkins, Judge.
    Suit for injunction by R. C. Engler and others against W. P. Anderson and others. From the judgment for plaintiffs, defendants appeal.
    Dismissed.
    Rentfro & Cole and H. B. Galbraith, all of Brownsville, for appellants.
   FLY, C. J.

This is a suit brought by ap-pellees to restrain appellants from driving loose live stock through the gates and on the lands, crops, canals, or laterals of appel-lee Engler, who was the landlord of the other appellee, and from using said gates or roadway for other purposes than for pedestrians, persons on horseback or in vehicles, from leaving the gates open, and from leaving the road and going in or upon the canals, crops, or lands of said Engler. Appellees alleged their title to and possession of certain tracts of lands lying “in a bend of the Rio Grande in such a way that the east and west ends of said lands border on said river, for practically the full length of the east and west lines thereof”; that a canal had been constructed on the land, and was used to convey water for the irrigation of the crops; that the buildings and improvements, except fences, are situated on and near the west end of the land and are adjacent to the canal and its laterals; that gates have been provided near the canal, and the roadway runs along the canal, and no one has been prevented from using such gates and road, said gates being in the north and south lines of said land; that appellants claimed to own a tract of land lying south of and adjoining the lands of Engler, the land of appellants being bounded on the north by the south fence of said Engler, “While the east, west, and south sides of said lands claimed by defendants are bounded by the Rio Grande.” It was further alleged that appellants had been driving loose stock across the lands of Engler and damaging the crops and canal on said lands. The court granted the injunction and rendered judgment in favor of appellees for $109 actual and $200 exemplary damages.

This cause was tried in the district court on April 9, 1915, and the transcript was filed in this court on October 6, 1915'. No briefs were filed in this court until February 26, 1916, the cause having been set down for submission for March 1, 1916. Appellees have filed a motion to dismiss the appeal for want of prosecution, and it will be done unless there be fundamental error in the trial of the cause, as contended by appellants.

It will be noted that the petition showed that the land of appellants was lying completely between the land of appellee Engler and the river, and on the only side that egress and ingress from and to their land was open to appellants was the land of appellee Engler, the other sides of their land being encompassed by the Rio Grande, the boundary between Texas and Mexico. Appellants urged a general demurrer to the petition, which was overruled, and it is contended that such action was fundamental error, because the petition showed on its face that the land of Engler surrounded the lands of appellants and that no fence, road, or lane 60 feet wide had been left across said Engler’s land as required by a law enacted in 1884. Gammel’s Laws of Texas, vol. 9, pp. 600-602.

There are two reasons why that law has no application in this case: First, because the law provides for fences and roads in connection with “land surrounding the land of another,” and it clearly appears that the land of Engler lies only on one side of the land of appellants; the other sides being bounded by the Rio Grande, over which Eng-ler has no power or control. The law in its very terms does not apply to a tract of land so bounded, but the law was evidently intended to protect the small landowner whose land might be inclosed in a pasture or other inclosure. It may be unfortunate that the law did not include land bounded as is appellants,’ but this court has no authority to extend it so as to include land evidently not contemplated by the Legislature.

The second reason why the law of 1884 cannot be invoked in this case is that it wasi not carried into the Revised Statutes of 1895 or those of 1911, and in adopting both Codes it was specially provided :

“That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, are hereby repealed.”

That provision is followed by certain exceptions to the repealing clause, the law of 1884 not being among them.

There was no fundamental error in overruling the general demurrer, and the appeal will be dismissed for want of prosecution.
      <2=>For other cases se¡ same topi2 and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WESTERN UNION TELEGRAPH CO. v. SHERLIN.
    (No. 1549.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 13, 1916.)
    Telegraphs and Telephones <&wkey;68(2) — Actions for Damages — Mental Suffering.
    On October 9th the plaintiff left his train at Chattanooga, Tenn., because he could not buy a ticket required for his daughter, a child of 12. Early the next morning he filed a message to Ms father-in-law in Texas requesting money, which was written and accepted by the defendant’s agent. In the afternoon he inquired for an answer, for the first time revealing his circumstances to the defendant’s agent. At that time the message had not been sent. On October 12th, to avoid sacrificing the tickets for the rest of his family, plaintiff was obliged to leave for Texas without an answer, and to leave his child with a relative. The child received good treatment, and afterwards came safely to Texas alone. Plaintiff .claims specific damages because of mental suffering. Held, as a matter of law, that the situation shown in evidence was not productive of such mental suffering proximately caused by negligence of the defendant as would entitle the plaintiff to judgment.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Gent. Dig. § 69; Dec. Dig. &wkey;> 68(2).]
    Levy, J., dissenting.
    Appeal from Fannin County Court; S. F. Leslie, Judge.
    Action by Hugh Sherlin against the Western Union Telegraph Company. From a verdict for plaintiff, the defendant appeals.
    Reversed, and judgment rendered.
    The action is by appellee for damages, founded upon mental anguish, for the negligent failure, as alleged, to transmit and deliver the following telegram:
    “Chattanooga, Tennessee. October 10, 1913. J. T. Haney, H. M. Bonham, Texas. Wire me $10.15 for half ticket and $5.00' expense money. [Signed] Hugh Sherlin.”
    There was a trial before the court, and judgment for appellee.
    The evidence shows that on October 9, 1913, the appellee was on his way from the state of Tennessee to Bonham, Tex., and when in the vicinity of Chattanooga he ascertained that the railroad company over whose line he was traveling would require a ticket for one of his children, a daughter about 12 years old. Appellee did not have the money with which to pay for the ticket of his child, and he and his family got off the train at Chattanooga and went to the home of his wife’s uncle, who resided there. The uncle, as appears by inference, was not able to advance the money required for the ticket, and on the next morning at 7:45 o’clock appellee filed the above message, which was accepted by appellant. The ap-pellee could not write, and at his request the agent wrote the message for him. The ap-pellee did not, according to the evidence, inform the agent at Chattanooga at the time of filing the message of the circumstances surrounding him, but at 4 o’clock p. m. of the same day did give the agent at Chattanooga notice as follows:
    “That I was in trouble and would have to leave one of my children if I didn’t get the money ; that I -had no money and did not want to leave her there, and that it would grieve me if I did; that I didn’t know what would happen to her, and that she would have to come to Texas by herself; that J. T. Haney was my father-in-law, and would send the money called for in the message.”
    At the time of this notice at 4 o’clock it does not affirmatively appear as a fact that the agent at Chattanooga had transmitted the telegram to Bonham. The record requires this c'ourt to support the finding of the trial court, as comprehended in the judgment, that the agent at Chattanooga at the time of the notice above had not forwarded the telegram, and that it was yet in his possession for the purpose of forwarding. Two hours, it was shown, was a reasonable time for a message to come from Chattanooga to Bonham. The evidence sufficiently supports a finding of fact here made of a negligent failure to transmit and deliver, as alleged, the telegram to the consignee, who was accessible to the delivering office at Bonham. The railway tickets of appellee and his family were not valid after the 12th day of October, and for this reason they were compelled to pursue the journey without further delay in ] Chattanooga. The child, Cora, was left in Chattanooga at her granduncle’s home, and was well treated while there. Subsequently, in about a week, J. T. Haney telegraphed the money to Chattanooga, and the child Cora came alone to Bonham, reaching there safely and well. Appellee testified:
    “On account of not getting the money asked for in the message, I left my daughter Cora with Mr. Coleman at Chattanooga. Because of leaving her I was very much grieved, and suffered so much that I was unable to sleep or eat on the trip to Texas, and was uneasy about her, because I knew she would have to come to Texas alone. I brought all of my family with me except my daughter Cora. I had bad feeling on account of having to leave her to come alone, and was all tore up over it. * * * I left my daughter and came on because I did not want to lose my tickets. I could have stayed with her by sacrificing the tickets. Coleman and his family treated Cora kindly, and she was well cared for, and I did not fear that my daughter would be mistreated while with him. My daughter reached Bonham safely, and was well when she arrived in Bonham, and nothing happened to her in any way. * * * I suffered more on account of having to 'be separated from my child than anything else.”
    Hamp P. Abney, of Sherman, and Rosser Thomas, of Bonham, for appellant. Cunningham & McMahon and L. C. Fuller, all of Bonham, for appellee.
   LEVY, J.

(after stating the facts as above). By appellant’s third assignment of error it is contended that, since the proof shows no notice of the circumstances surrounding appel-lee was given to the agent at Chattanooga at the time the message was filed with him, it was error for the court to render judgment for appellee for the special damages, which was mental anguish. The evidence, construed in the light of the direct and cross-examination of appellee, conclusively shows, it is concluded, that the only notice given t>y appellee to the agent at Chattanooga respecting special damages was subsequent to the filing of the message at 7:45 o’clock a. in., and such notice was given on the occasion of his second visit to the telegraph office at 4 o’clock in the afternoon, when he inquired of the agent concerning an answer to the telegram. But, according to the evidence in the record, this court is not warranted in concluding, it is believed, that when the notice was given to the forwarding agent at 4 o’clock such agent had performed his duty of transmitting the message, and did not have it in his possession unforwarded. The inference is permissible from the evidence that the forwarding agent had not at the time of the notice transmitted the message, and, as the trial court could have so inferred, this court must, in support of his judgment, so conclude. The forwarding agent does not testify respecting the transmission of the telegram. The receiving agent says: “I recall distinctly about receipt of the message in question, but do not recall now the time of its receipt,” and does not otherwise fix the time or day when he received it. And the effect of the evidence of Mr. Haney is that at one time the receiving agent told him there was no message in the office, and later admitted to him “that it was there when I called, and he didn’t know why he did not give it to me.” Mr. Haney, it appeared, called at the office on the Oth, 10th, and 11th of October, and on which day the telegram was at such 'office is not disclosed. In view of the facts, therefore, of this case, it is believed that notice to the agent before he had actually forwarded the telegram was sufficient to predicate special damages. Until the telegram had been transmitted by the agent at Chattanooga and the contract in that respect performed, he had power to act for the appellant with reference to the very subject-matter to which the notice re-, lates. It is not thought that this is opposed to the principle laid down in Railway Co. v. Belcher, 88 Tex. 549, 32 S. W. 518; Id., 89 Tex. 428, 35 S. W. 6. See Bourland v. Railway Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647.

By proper assignment of error it is urged that under the facts pleaded and proven the appellee is not legally entitled to recover damages for mental anguish. The child, it appears, did not accompany her parents on the journey from Chattanooga to Texas, for lack of money on the part of her father to pay the railway fare. While at Chattanooga the child was well treated, and stayed at the home of her granduncle. Appellee, as he says, had no fears respecting his daughter while at her granduncle’s. The child subsequently made the trip to Texas safely and was well when she arrived. The mental distress appellee suffered was on account of the fact that he was forced to separate himself from the child and leave her to later continue the journey to Texas by herself; she being young and inexperienced. The fact that the child later made the trip alone should not in the evidence, it is concluded, be held to be the direct and probable result of the failure to deliver the telegram, entitling appellee to recover. Knowing, as ap-pellee did, that the child would have to take the trip alone, it was incumbent upon him to take all reasonable steps to prevent that fact and guard against any mental distress in that respect. And it affirmatively appearing, as it did, that appellee himself did not return nor send any one else to accompany the child, and there being an absence of any evidence excusing appellee from the failure to take such steps to prevent the child from traveling alone, his own conduct, and not the failure to deliver the telegram, would be the proximate cause producing the mental anxiety suffered on account of the child’s traveling alone. It would so appear from the evidence of appellee, and therefore the burden was on him to show negligence proximately causing injury. And the mere fact, it is concluded, of mental agitation, in the circumstances of tlie case, at being separated from the child and continuing the journey without her, does not afford a proper basis for recovery of the damages allowed. Telegraph Co. v. Chamberlain, 169 S. W. 370; Morrison v. Telegraph Co., 24 Tex. Civ. App. 347, 59 S. W. 1127. This necessitates the reversal of the judgment and here rendering judgment for appellant, with all costs of appeal and of the trial court.

The writer is not inclined to agree to the conclusion of the majority that the situation shown in the evidence is, as a matter of law, not productive of such mental suffering, proximately caused by negligence of appellant, as would entitle appellee to the judgment.

We have considered the other assignments of error, and believe they should be overruled.
      ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes