author: FLY, C. J.

text:
    STRAIT BROS, et al. v. CHANEY.

    (No. 6156.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 5, 1919.
    Rehearing Denied Feb. 26, 1919.)
    1. Use and Occupation ⅞=>8 — Pleading — Petition.
    A petition, alleging that defendants, without plaintiff’s knowledge or consent, entered upon plaintiff’s land, which was inclosed with defendants’ land in large pasture, used and occupied it, and shared profits arising therefrom, and prevented plaintiff from renting the same, held not demurrable for failing to state that defendants were in exclusive possession thereof.

      2. Pleading &wkey;>34(3) — General Demurrer— Intendments.
    Every intendment must be resolved in favor of a pleading assailed by general demurrer.
    3. Use and Occupation <&wkey;l — ¡Rents.
    That plaintiff’s land was inclosed with that of defendants’ merely secured tlie right to each party to pasture cattle upon the land in proportion to the number of acres in the inclosure owned by him, but defendants could not lease plaintiff’s land to others for grazing and appropriate the rent money.
    4. Use and Occupation <®=?1 — Lease — Exclusive Use.
    Where plaintiff’s land was fenced in with that of defendants’, defendants’ leasing of all the land for'-pasture without plaintiff’s knowledge was an exclusive and special use of the land, and plaintiff can recover the rent money collected for use of his land.
    5. Venue <&wkey;22(3) — Oodeeendants.
    Where all the defendants residing within the county obtained a favorable judgment on plea of limitation, the court’s jurisdiction was not destroyed as to remaining defendants, where the first defendants were not fraudulently impleaded, for plaintiff was not bound to anticipate the interposing of the plea.
    Appeal from District Court, Bexar County ; S. G. Tayloe, Judge.
    Suit by W. S. Chaney against Strait Bros., as a partnership and as individuals, and others. Judgment for plaintiff against Strait Bros, and certain other defendants, from which they appeal.
    Affirmed.
    Jas. D. Crenshaw and Frank H. Booth, both of San Antonio, for appellants.
    J. F. Carl, P. H. Swearingen, Jr., L. Allen, and George G. Clifton, all of San Antonio, for appellee.

       writ of error denied April 2, 1919.

   FLY, C. J.

Appellee instituted this action against Strait Bros., as a partnership and as individuals, and Price, Ritchie & Buttles, as a partnership and as individuals, to recover for the use of appellee’s land, consisting of G40 acres, for the time beginning in 1908 and ending with 1917, alleging that the defendants had conspired to use his land without paying for the rent of the same, and had used the same for the time indicated, and had prevented appellee from renting the land to others. Strait Bros, and Joel Buttles filed pleas of privilege to be sued in other counties than Bexar counts’-, which were overruled, and all the defendants interposed pleas of limitation, which were sustained, except for the years 1915,1916, and 1917, and judgment was rendered in favor of appellee against Strait Bros. Jesse B. Strait, Yancy | Strait, and Joel Buttles, but the court rendered judgment for their costs in favor of J. E. Ritchie and Lucilius Price; it appearing that the partnership of Price, Ritchie & Buttles was dissolved in 1913.

The facts show that appellants took possession of appellee’s 640 acres of land in 1913, and appropriated it to their use and benefit until the end of 1917, renting it and receiving for its use the sum of 25 cents an acre, and they are justly indebted to appel-lee for the years 1915, 1916, and 1917 in the sum of $320, as found by the trial judge.

The first assignment of error complains of the action of the court in overruling a general demurrer to the amended petition on which the cause was tried. The following allegations are found in the petition:

“On the 1st day of January, 1908, defendants, without the knowledge and consent of your plaintiff, entered upon the said premises owned by your plaintiff, as above described, and used- and occupied the property for a period of nine years up to and including the 1st day of January, 1917, and the defendants each and all shared the profits and revenues accruing by reason of the said use and occupancy of the said land so owned by your plaintiff; that your plaintiff, during said period at various times, tried to rent the said premises to some of these defendants, as well as to others, but these defendants schemed and conspired together to prevent your plaintiff from securing a renter for the said premises, and concealed all of these facts from the knowledge of your petitioner, and by reason of the facts above alleged your plaintiff was unable to rent said land.
“Plaintiff further shows to the court that the land above described was in a larger inelosurc, and not fenced off separately, and for this, etc., he resides in a county distant from that in which this land is situated, among other reasons, he did not know that the defendants were deriving revenues from said land and using the same; and on divers occasions he attempted to rent said land to the defendants, or some of them, and particularly the firm of Price, Ritchie & Buttles, and they declined to rent the same from him either at that time or any other time. But, during all of the time herein alleged, the defendants were occupying said land, and using it together, and deriving large revenues therefrom; and plaintiff says that it became the duty of the defendants, when he interviewed them with reference to renting said land to them for pasturage purposes, and they declined to do so, to inform him that they were so occupying and using said land and deriving revenues therefrom, but this they absolutely failed to do, and the failure so to inform him of their use and occupancy of said land at a time when it became their duty to speak was equivalent to and was a fraud upon this plaintiff.”

The petition was not subject to attack through a general demurrer. If, as alleged, appellants entered upon appellee’s land without his knowledge or consent, and used and occupied it, and shared the px-ofits and revenues arising from it, and prevented appellee from renting the same, they would be liable to appellee for such revenues, no matter if the land was inclosed in a pasture with over 4,000 acres of land belonging to appellants. Every intendment being resolved in favor of a pleading assailed by general demurrer, it must be read into the petition that as appellants were obtaining all the profits and revenues from the use of the land, they were in exclusive possession of the same. We cannot accede to the proposition that a person can rent the property of another in the same inclosure and use the revenues to the exclusion of the owner. It may be that under the system in Texas the owner of a pasture in which another has land could pasture his own stock thereon without being liable to the other for such pasturage, but we cannot go to the extent of holding that the owner can rent the land of the other for farming or pasturage purposes and not be liable for the rents arising therefrom. By leasing the land the owner of the large portion in the pasture or farm is appropriating the property of another to his own use and benefit and depriving that other of the same. The open use of the land did not deprive ap-pellee of his rights, nor fortify any claim of appellants to the revenues arising from the property of another. While it has been the policy of this state to permit stock to run at large upon any one’s uninclosed land, it has never been held or imagined that a person could rent the uninclosed land to another to use by herding his cattle upon it. The land being inclosed with that of appellants merely secured the right to each party to pasture cattle upon the land In proportion to the number of acres owned by him, and while the doctrine might possibly be stretched so as to permit one party to pasture all the land, it could not in equity and justice permit leases to others and an appropriation of the lease money by one of the owners of the inclosed land. No such doctrine is advanced in Pace v. Potter, 85 Tex. 473, 22 S. W. 300, Lyons v. Slaughter, 87 -S. W. 182, and Durst v. Mann, 35 S. W. 950. The case of Pace v. Potter merely holds that cattle running on the uninclosed land of another does not constitute a trespass, and that where the lands of two or more persons are inclosed in the same pasture, each owner can pasture cattle in proportion to the number of acres he owns. It is also held that the exclusive possession of one owner would make him liable to the others. To the same effect is Lyons v. Slaughter, and it was also held that an owner would be liable for any stock pastured over and above his pro rata. In the case of Durst v. Mann it wás held that one who fences land with his own and uses the land as a pasture to the exclusion of others will be liable for the rental value of the land.

The -case of St. Louis Cattle Co. v. Vaught, 1 Tex. Civ. App. 388, 20 S. W. 855, clearly states the law as applied to this case under a similar but not so cogent a state of facts. The facts in that case were that Vaught owned a section of land, which was in an inclosure belonging to the cattle company. The inclosure was used as a pasture by the company to pasture its cattle. The company had from 75,000 to 100,000 acres in the pasture. Eree ingress to and egress-from the land was not denied the owner. The court said:

“In this state, on account of the condition-which has existed from time immemorial of the grazing lands, the owner of such property cannot complain, as long as it remains a portion of the ‘commons,; that the cattle of another should roam over it and graze upon it at will. * * * This doctrine, however, does not authorize the owner of cattle, by affirmative conduct on his part, to appropriate the use of such lands to his own benefit. He will not be permitted thus to ignore the truth that every one is entitled to-exclusive enjoyment of his own property. In this case, the appellant, by means of fences constructed or maintained by it, inclosed the land of the appellee in such manner as to reap-from it those benefits which, as a rule, are incident exclusively to ownership. The use and' enjoyment of the property under such circumstances import necessarily the idea of liability.”'

There is no conflict between that case and those cited by appellants. The facts of the ease differentiate it from the others because it did not appear that it was absolutely necessary to fence the land of appellee in-order to fence that of the cattle company. The authority of the decision has never been questioned, but it has been cited with approval by at least one other Court of Civil Appeals. Tandy v. Fowler, 150 S. W. 481; Jameson v. Board, 171 S. W. 1037. The Supreme Court has held that the case of Durst v. Mann, herein cited, is not in conflict with St. Louis Cattle Company, herein-cited, nor Abbey v. Shiner, 5 Tex. Civ. App. 287, 24 S. W. 91; Mann v. Durst, 90 Tex. 76,. 37 S. W. 311. The Vaught Case is approvingly cited by the Court of Civil Appeals in Durst v. Mann. The cited case of Abbey v. Shiner was decided by this court and sustains our decision in this case. This court held in that case that when two owners had land in a single inclosure, and one uses all of it, that:

“In order to render him liable, he must make-some exclusive or special use of the land hot. belonging to him.”

It cannot be said that it is not an exclusive or special use of land to rent it and collect and appropriate the rent money. No-case has so held, so far as we have been able to ascertain.

In this case it is unnecessary to go to the extent gone by the court in St. Louis Cattle Co. v. Vaught, for the facts in this case show a clear and unequivocal appropriation of the revenues arising from the rental of the land of appellee, and it is no ground to-deny Mm a recovery ol such revenues by proving that he might have gone in and possessed his land if he had so desired. It was shown that he did not know that his land was being rented by appellants. His land was appropriated and used for revenue without his consent.

We approve the findings of fact of the trial judge, which are supported by the statement of facts. The facts show exclusive possession upon the part of appellants.

The pleas of privilege were properly overruled. A portion of the defendants resided in Bexar county, and the fact that on the trial the Bexar county defendants obtained judgment in their favor on a plea of limitations did not destroy the jurisdiction of the court. When it once attached it remained in fórce throughout the pendency of the cause. There is no evidence whatever that the parties who pleaded limitation were fraudulently impleaded. Appellee was not called upon to anticipate that a plea of limitations would be interposed to his claim. When he sued the' claim was a valid one against all the parties, and was only destroyed as to some of them by defensive matter pleaded by them. /

■ Appellants, under their second assignment of error, advance the proposition that there is “no evidence or finding” that appellants excluded appellee from the land. The trial judge found that appellants “entered upon said premises and used and occupied it exclusively for about nine years,” and the evidence, as hereinbefore stated, fully justifies the finding. The appellants admitted that they rented the land in the pasture, and collected the rents, and appropriated them. Equity, honesty, conscience, and fair dealing cry out against the injustice of an appropriation of money rightfully belonging to another, as was done in this case.

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

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


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    HALLAM et al. v. DUCKWORTH.
    (No. 937.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 20, 1919.)
    1, Sales <&wkey;418(2) — Seller’s Failure to Deliver — -Measure of Damages.
    The measure of the buyer’s damages for seller’s breach of contract to deliver wheat f. o. b. cars at certain station within certain time is the difference between the contract price and the market price of the wheat f. o. b. cars at such station, at the time delivery was to have been made.
    2. Appeal and Error &wkey;>1054(l) — Review-Harmless Error — Inadmissible Evidence.
    In buyer’s action, tried before court without jury, for seller’s failure to deliver wheat at certain station within certain period, the admission of evidence of the market value of wheat at other stations was harmless, where no damage would be shown by accepting the market value at such other stations.
    3. Appeal and Error <&wkey;1054(l) — Review-Harmless Error.
    In trials before the court, the admission of improper evidence will not require reversal, where it clearly appears that it did not influence the judgment.
    4. Sales <&wkey;417 — Seller’s Failure to Deliver-Action by Buyer.
    Buyer, suing seller for breach of contract to deliver wheat f. o. b. cars at certain station within certain time, was not entitled to judgment for damages, where he introduced no evidence of the market value of -wheat at such station, notwithstanding evidence of market value at point of destination and at other stations.
    5. Appeal and Error <&wkey;1033(3) — Errors Favorable to Appellant — Right to Complain.
    Buyer, having recovered judgment against seller, and having introduced no relevant testimony entitling him thereto, cannot complain on appeal of the admission of inadmissible testimony, on which such judgment was based.
    6. Carriers &wkey;>4&wkey;FAiLURE to Deliver Car —Cancellation of Order — Liability.
    A railroad is not liable for damages for failure to furnish car on seller’s breach of contract requiring- him to deliver goods f. o. b. cars at certain station within certain time, where seller had canceled order for car prior to expiration of time within which he could have made delivery under his contract with buyer.
    Appeal from Young County Court; W. P. Stinson, Judge.
    Action by R. G. Hallam against W. Duck-worth, in which the defendant impleaded the Gulf, Texas & Western Railway Company. From a judgment for plaintiff, for less relief than demanded, plaintiff appeals; and from a judgment for .defendant against the Railway Company, the Railway Company appeals.
    Judgment for plaintiff affirmed, and judgment for defendant against the Railway Company reversed, and rendered for the Company.
    Ritchie & Cousins, of Mineral Wells, Ben B. Cain, of Dallas, and Fred T. Arnold, of Graham, for appellants.
    Marshall & King, of Graham, for appellee.
   HIGGINS, J.

Hallam sued Duckworth to recover the sum of $264 damages arising from breach of contract of sale. Duckworth impleaded the Gulf, Texas & Western Railway Company, and sought judgment against it for any amount which might be recovered, by Hallam. Upon trial before the .court without a jury, Hallam recovered judgment for .$54 against Duckworth. Duckworth recovered in like amount over against the Railway Company. Hallam and the Railway Company appeal. The appeal of Hallam will be first considered.

On October 9, 1916, Hallam purchased of Duckworth a carload of wheat, to contain not less than -600 bushels, to be delivered f. o. b. cars at Jean, Tex., a station on the line of said railway company. The agreed price wás $1.56 per bushel. Duckworth failed wholly to deliver the wheat. In his pleading, Hallam alleged that the wheat was to be delivered within 10 days from October 9th, but upon the trial testified that it was for immediate shipment, which in their trade meant from 10 to 15 days.

The trial court found that the market price ©f wheat on October 9th was $1.56 per bushel, and 10 days thereafter the market price was 9 cents per bushel higher which entitled the plaintiff to recover the sum of $54.

Appellant Hallam presents only one assignment, as follows:

“The court below erred in permitting the witnesses Chas. Hinson and George Terrell to testify, over the objection of plaintiff, that there was a market for wheat at Graham, Tex., and at New Castle, Tex., on October 19, 20, 21, and 22, 1910, and that wheat of the character of that in controversy was worth on the market at those places and at that time the sum of $1.56 per bushel, because it was shown by said witnesses that there was no open market for wheat at said points, and because said wheat was not to be sold on the market at New Castle or at Graham, but was to be shipped- to Ft. Worth and sold on the market at that place, and because said witnesses testified that they did not know what the market at Ft. Worth was on said dates, but estimated the same as being from 5 to 10 cents per bushel more than at Graham and Now Castle, and because said testimony was speculative, irrelevant, and immaterial, and based on the presumption of the witnesses from their previous experiences, in buying wheat at Graham and New Castle and Ft. Worth.”

The proper measure of damage in this case was the difference between the contract price and the market value of the wheat, f. o. b. cars at Jean, at the time the delivery was to be made. See cases cited, 15 Miehie, Digest, 517.

This being the measure of damage, the evidence was inadmissible; but, since the ease was tried before the court, its admission was harmless. In trials before the court the admission of improper evidence will not require reversal, where it clearly appears that it did not influence tbe judgment. See cases cited, 1 Miehie, 813. It is quite apparent the evidence did not influence the judgment, for, if the court had taken the market value at Graham and New Castle as a basis of calculation, it would not have shown any damage.

In fact, there was no evidence adduced of market value at Jean, and in this state of the record plaintiff failed to show any damage. Plaintiff testified to market values upon the open market at Ft. Worth at the time the wheat would have reached there, if delivered by Duckworth at Jean at the time agreed upon. But this was no more relevant ihan testimony of values at Graham and New Castle. In the state of the evidence, the court should have rendered judgment against plaintiff. But Duckworth did not appeal and is not complaining, and since plaintiff has gotten a judgment for $54, when, upon the evidence, he should have recovered nothing, we do not see how he can very well complain of the admission of immaterial evidence of the nature indicated and ask a reversal upon that ground.

Passing to the appeal of the railway company, only the eighth and ninth assignments need be considered. They are as follows:

Eighth: “The court erred in finding that the defendant, Duckworth, canceled the order for the car in question after the expiration- of 10 days from the date on which the order had been made, because such finding is contradictory to, and is not supported by, the evidence.”
Ninth: “The court erred in finding that the only reason defendant, Duckworth, failed to deliver the wheat in question to the plaintiff, Hal-lam, was on account of the alleged failure of this defendant to furnish a car, for the reason that it conclusively appeared from the evidence that the order for said car was canceled long prior to the expiration of the 10 days within which the defendant, Duckworth, was to deliver said wheat.”

Tbe' supporting proposition reads:

“Defendant Duckworth’s obligation being to deliver the wheat in 10 days, and having, according to the uncontradicted evidence, canceled the order for the car prior to the expiration of such time, he is not entitled to recover against this defendant.”

It is undisputed that tbe car was ordered October 9th. Duckworth’s pleading and tbe undisputed evidence shows be bad at least 10 days from October 9th within which he could make delivery of the wheat to Hallam. According to Hallam’s testimony, he had as much as 15 days to make delivery. Manifestly, if he canceled his order for the car prior to the expiration of the time within (whieh he could make delivery, and thereby placed it beyond his power to comply with his contract with Hallam, he should not recover of the railway company, upon the theory that the railway company had refused to furnish the car within the limited time. Certainly the railway was under no obligation to furnish the car after the order therefor had been canceled. Upon the contrary, it then became the duty of the railway not to furnish the ear. The car records of the railway company show that the order was canceled on October 11th. Its chief dispatcher and its agent at Jean testified that the cancellation was made on that date:

Duckworth, upon direct examination, testified that Mr. Brooks, from whom he had purchased the wheat, was in his store about 10 days after the purchase, and that the cancellation was made at that time; but later in his cross-examination he definitely fixed the date that Brooks was in his store, and the date of cancellation, as October 17th.

Brooks testified that the car was ordered on Monday, and about 10 days thereafter the cancellation was made by Duckworth in his presence. But later he definitely fixed the cancellation as on the following Friday, the 13th. So, according to the dates positively fixed, tire cancellation was made not later than the 17th, which was only 8 days after the. car was ordered. But, if it was as much as 10 days, it would make no difference, because according to Hallam’s testimony, under the terms of his contract with Duck-worth, the latter had from 10 to 15 days after October 9th within which to make delivery. Under the undisputed testimony, it thus appears that, prior to the expiration of the time within which he was required to make delivery, Duckworth by his own act had made it impossible to deliver the wheat f. o. b. car. His failure to obtain a car within the time required by his contract was directly caused by his own act, and the railway company was not responsible therefor.

The judgment in favor of Hallam is affirmed; that in favor of Duckworth against the railway company is reversed, and here rendered in favor of the company.
      <§zsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALKER, J. HIGHTOWER, C. J.

text:
    TRINITY VALDEY & N. RY. CO. et al. v. SCHOLZ et al.
    (No. 376.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 14, 1919.
    Rehearing Denied March 5, 1919.)
    1. Railroads <&wkey;>260 — Liability for Injuries — Permitting Use of Road by Others.
    A railway company, which permitted a lumber company to use its tracks under contract unauthorized by law, is responsible to third persons for negligence of lumber company.
    2. Master and Servant <&wkey;230(G) — Contributory Negligence — 'Volunteer.
    In action by infant for personal injuries received by reason of his acceptance of invitation of employe of defendant railway to help couple engines, in order to recover, it must be shown that the infant was not capable of appreciating the danger.
    Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.
    Suit by Paul Scholz and another against the Trinity Valley & Northern Railway Company and another. Judgment for plaintiffs, and defendants appeal.
    Reversed and remanded.
    Stevens & Stevens, of Houston, for appellants.
    H. E. Marshall and D. J. Harrison, both of Liberty, and Jno. M. Conley, of Beaumont, for appellees.
   WALKER, J.

This is a suit by Paul Scholz and his father, August Scholz, against the appellants, for personal injuries suffered by Paul Scholz on the line of the Trinity Valley & Northern Railway Company about the 1st of May, 1915. At that time Paul Scholz was a minor past 15 years of age, working occasionally for both of the defend-ants. On the day he was injured he was not in the employ of either of them. The Dayton Lumber Company had track privileges over the line of the railway company for the purpose of hauling logs. It had its own engines, cars, and employés. Under some kind of contract, the nature and terms of which are not shown by the pleadings or the proof, the lumber company had the right to the use of the tracks. The railway company also used the tracks, operating a daily passenger train, and hauling freight from one end of the line to the other; the line extending from Dayton, in Liberty county, to Fouts, in the same county. The defendant lumber company owned some side tracks at Fouts, and it was the custom of the company at night to take its engines from the main line onto these side tracks and keep them there until the next morning. The day engineers surrendered their engines to one T. E. Bishop, an employs of the lumber company, whose duty it was to take these engines from the main line to the side tracks and watch over them at night and fire them up the next morning. On the day Paul Scholz was injured, T. E. Bishop asked him to help couple two engines together, so he could carry both engines from the main .track at one time. In attempting to make this' coupling, Paul Scholz was injured.

Plaintiff’s cause of action is based upon the negligence of the defendants in extending to him, a minor of immature age and discretion, an invitation to do a hazardous thing, he being of immature age and discretion and 'not understanding or appreciating the danger incident thereto, and that the proximate cause of his injury was his being caught between the engines on account of the accumulation of cinders on the track, over which he tripped when his leg came in contact with the running board on the engine.

The defendants’ answer, in substance, is that the minor, Paul Scholz, was injured on account of his inexcusable and contributory negligence in riding on the cars and engines used upon the tracks by the defendants, and being sufficiently mature in years and intelligence to realize and understand the danger.

This case was submitted to the jury on special issues. On answers thereto, the trial court rendered judgment in favor of appel-lees, from which judgment both defendants have appealed to this court.

The railway company assigns as error the refusal of the court to instruct a verdict for it on the conclusion of the testimony. This contention is without merit. Under the undisputed facts in this case, the railway company was permitting the lumber company to use its tracks under some sort of contract unauthorized by law. This will make the railway company responsible for this tort of the lumber company. This proposition has been before the courts many times, and, as we understand the decisions, they uniformly hold the lessor company liable, under facts similar to the facts in this record.

In T. & N. O. R. R. Co. et al. v. Jones, 201 g. W. 1085, Judge Huff cites with approval the following statement from Railway Co. v. Horne, 197 Ill. 250, 64 N. E. 331:

“The law is well settled that when an injury results from the negligence or unlawful operation of a railway, whether by the corporation to which the franchise is granted or by another corporation which the px-oprietary company authorized or permits to use its tracks, both the lessor and the lessee are liable to respond in damages to the party injured.”

We understand this to be the holding of our courts. T. & S. Ry. Co. v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18; G., C. & S. P. Ry. Co. v. Miller, 98 Tex. 270, 83 S. W. 182; Ray v. Pecos Ry. Co., 35 Tex. Civ. App. 123, 80 S. W. 112; G., C. & S. P. Ry. Co. v. Bryant, 30 Tex. Civ. App. 4, 66 S. W. 804; Railway Co. v. Underwood, 67 Tex. 592, 4 S. W. 216; Railway Co. v. Moody, 71 Tex. 616, 9 S. W. 465 ; Railway Co. v. Owens, 75 S. W. 582; Woodhouse v. Railway Co., 67 Tex. 420, 3 S. W. 323; Railway Co. v. Morris & Crawford, 68 Tex. 59, 3 S. W. 457; Collins v. Railway Co., 15 Tex. Civ. App. 169, 39 S. W. 643; Railway Co. v. McGrath, 160 S. W. 444. In E. L. & R. R. Ry. Co. v. Culberson, 72 Tex. 377, 10 S. W. 707, 3 L. R. A. 567, 13 Am. St. Rep. 805, Associate Justice Gaines says:

“There have been numerous decisions in other states holding the lessor liable when the lease is unauthorized for injuries to live stock and to persons crossing the track caused by the negligence of its lessees. So that it may now be considered the accepted and settled doctrine that in all cases where one railroad company is operating trains upon the road of another without authority of law, the owner of the road remains responsible for the discharge of its duties to the public and becomes liable for injuries resulting from the lessees’ failure to perform their duties. The lessor by accepting its charter assumes the obligation to carry passengers safely over its line. If it intrusts that duty to another company and a passenger is injured it is responsible.”

In G., C. & S. F. Ry. Co. v. Miller, 98 Tex. 270, 83. S. W. 182, Associate Justice Williams says:

“It is a sound proposition, often applied, that the corporation, shown to be owner of a railroad in the operation of which a wrong has been done, is presumed to be in the possession and operation of its road.”

By the thirteenth assignment of error, appellants complain of the refusal of the court to give thé following charge:

“Would a person of ordinary prudence similarly circumstanced and of the age and discretion of the plaintiff Paul Scholz have attempted to make the coupling? Answer ‘Yes’ or ‘No.’”

The trial court submitted this case to the jury on four questions, as follows:

Question No. 1: “Was Paul Scholz, at the time he was injured, of such immature judgment, and so wanting in discretion on account of his youth, as to render him incapable of understanding and realizing the danger he assumed in attempting to couple the engines together at the request and invitation of the night watchman or engineer? Answer ‘Yes’ or ‘No.’ ”
Question No. 2: “If you have answered the preceding question in the affirmative, the court then propounds to yoji the following question: Were the defendants guilty of negligence, here-inabove defined, in permitting and allowing cin-dei-s to accumulate on their railroad track, and if they did accumulate on said track, at the time and place where said Paul Scholz was injured? Answer ‘Yes’ or ‘No.’ ”
Question No. 3: “If you have answered the foregoing-question in the affirmative, then the coui-t propounds to you the following question: Did the cinders that had accumulated upon the defendant’s track, if they were accumulated thereon, directly and proximately cause said Paul Scholz to trip and fall in undertaking to effect the coupling of said two engines? Answer ‘Yes’ or ‘No.’ ”
Question No. 4: “Were the defendants guilty of negligence as hereinabove defined, through the acts of the night watchman or engineer in inviting and í-equesting said Paul Scholz to assist said night watchman or engineer in making a coupling of the two engines at the time and place and in the manner that the evidence shows the said Paul Scholz undertook to make such coupling? Answer ‘Yes’ or ‘No.’ ”

The fifth and last question determined the amount of damages. We think the refusal of this charge was error. Question No. 1 is the only issue submitting to the jury the contributory negligence of Paul Scholz. An affirmative answer to this question does not authorize the court to find that Paul Scholz was not guilty of contributory negligence.

In M., K. & T. Ry. Co. v. Rogers, 89 Tex. 675, 36 S. W. 243, Judge Brown says:

‘Whether or not the plaintiff was of immature years and so wanting in intelligence that he could not appreciate the danger of getting upon the car is a question of fact, to be found by the jury under the evidence that may be adduced on another trial. Cook v. Navigation Co., 76 Texas, 353 [13 S. W. 475, 18 Am. St. Rep. 52]; Evansich v. Railway, 57 Texas, 128 [44 Am. Rep. 586]. Upon this issue of fact the defendant has the right to have the law given to the jury as applicable to both phases of the case. If the jury should find that the plaintiff, by rea'son of his age and want of intelligence, was not capable of appreciating the danger of getting upon the car, and that the employes of the railway company invited or permitted him to get upon it, and if it should appear that to ride upon such a car was dangerous for a child of his age, and further that the act of getting upon the same under the circumstances was such as might have been done by a child of his age and intelligence, the defendant would be liable to him for the injuries inflicted, although its employés may have been forbidden to permit any one to ride upon said car.”

Applying! the rule above announced to the facts in this case, the jury must find: First, that Paul Scholz was not capable of appreciating the danger of coupling the engines; second, that he was invited by an employs of either the railway company or the sawmill company to couple the engines; third, that to couple the engines was dangerous for a child of his age; and, fourth, that the act of coupling the engines under the circumstances was such as might have been done by a child of his age and intelligence. Only the first of these issues was submitted to the jury.

In G. E. Company v. Antohini, 152 S. W. 841, the jury was charged:

• “By the term ‘contributory negligence,’ as applied to the plaintiff, Adriano Antonini, is meant a failure on his part to use and exercise ordinary care, by which, in this connection, is meant that degree of care which a person of ordinary prudence of his age, intelligence, and discretion would have used or exercised under the same or similar circumstances.”

In discussing this charge, Chief Justice Pleasants said:

“The question is not simply whether the ap-pellee had sufficient capacity to know that it was dangerous to cross a track ip. front of an approaching car, but whether a boy of his age, intelligence, and discretion would ordinarily have sufficient prudence or care for his safety not to take the chance that he did of getting across the track before the car would reach the place of his crossing.”

In Dowlen v. T. P. & B. Co., 174 S. W. 674, the court charged the jury:

“Tou are charged that the plaintiff, V. A. Dowlen, was required to exercise such care and caution as a child of his age, intelligence, and experience would ordinarily use under similar circumstances.”

In discussing this charge, Judge Hodges said:

“Did the court in this instance apply the proper test? The language both of the main charge and of the special charge makes it clear that the prudence required of the plaintiff in this case was to be measured by what a child of his age, intelligence, and experience would ordinarily do under such circumstances. The following cases support that test: Cook v. Houston Direct Nav. Co., 76 Tex. 353, 13 S. W. 475, 18 Am. St. Rep. 52; Evansich v. G., C. & S. F. Ry. Co., 57 Tex. 126, 44 Am. Rep. 586; H. & T. C. Ry. Co. v. Simpson, 60 Tex. 103; Mitchell v. T. R. & M. Co., 9 Wash. 120, 37 Pac. 341; Railway Co. v. Hall, 83 Tex. 675, 19 S. W. 121; Haynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. E, 344, 26 L. R. A. 810, 41 Am. St. Rep. 786.”

We add the following citations to those given by Judge Hodges, supra: Railway Co. v. Boozer, 70 Tex. 537, 8 S. W. 119, 8 Am. St. Rep. 615; Railway Co. v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 81; Railway Co. v. Voss, 159 S. W. 65.

This boy being almost 16 years old at the time he was injured, and having worked around engines for some time, it was error to fail to submit this charge.

All other special charges requested by appellants were properly refused. Special issue No. 1 was correctly submitted, but it should have been followed by the submission of the issue herein discussed.

We have carefully examined all other assignments made by appellants, and find no merit in them.

For the error indicated, this,cause is reversed and remanded.

HIGHTOWER, C. J.

I concur in the opin-

ion reversing the judgment of the lower court because of the error of that court in refusing the submission of the special issud discussed. I am not certain, however, that .the facts as reflected by the record show any liability as against appellant railway company. But I am not sufficiently advised at this time to dissent from the view expressed on that point.
      <gz=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    HALL v. WILLMERING.
    (No. 1456.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1919.
    On Motion for Rehearing, March 5, 1919.)
    1. Injunction <&wkey;108 — Condition Peece-dent— Oontract-4Removal oe Geavel.
    The removal-by defendant of the surface dirt preparatory to removal of gravel, under a con-' tract whereby plaintiff gave defendant exclusive right, for a certain period, to remove gravel, and defendant agreed to perform all labor necessary for its removal, and to pay plaintiff for gravel removed, even if not making the contract irrevocable, at least gave defendant. some equities in the premises, so that plaintiff, making no •offer of compensation for such work, may not have injunction against removal of gravel, on •the theory of the contract being terminable as unilateral and without consideration.
    2. Contracts <&wkey;217 — Removal of Gravel-Option to Continue — Notice.
    Contract whereby plaintiff gave defendant right to remove gravel for three years, providing that if at expiration thereof, plaintiff should fail to give defendant 30 days’ written notice prior to expiration, defendant should at his option have right to continue it on same terms for another such period, does not require any notice of .election to continue, other than that imported from continued exercise of the privilege.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by J. F. Hall against C. E. Will-mering. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Hendricks & Mood, of Amarillo, for appellant.
    Ben H. Stone and Miller & Guleke, all of Amarillo, for appellee.
   BOYCE, J.

Appellant, Hall, brought this suit against appellee, Willmering for injunction to restrain the said Willmering from hauling gravel and sand from a gravel pit, located on section 12, block 9, B. S. & E., Potter county, owned by Hall. The contest between the parties grows out of a contract entered into between them on September 14, 1914, in reference to this matter. This contract, so far as material to this decision, imposed the following obligations upon the respective parties: Hall granted to Willmer-ing the exclusive right to enter on that part of section No. 12, used for gravel pits, and to remove therefrom sand and gravel as he might see fit, granting such “privilege for a period of three years from the date of this contract, it being agreed and understood that at the expiration of this contract if the party of the first part (Hall) should fail to give the party of the second part (Willmering) thirty days’ written notice prior to the expiration of this contract then the party of the second part shall, at his option, have the right to continue said contract on the same terms and conditions as are set out in this contract for a period of three more years, said party of the first part granting to said party of the second part the right of way to the above premises for the purpose of hauling sand and gravel therefrom.” Will-mering agreed “to perform all labor necessary for the removal of said sand and gravel from the above-described premises,” and to pay to the said Hall ten cents per yard for the sand and gravel taken, “the royalty due” to be paid at the expiration of each 30 days. After the execution of this contract and in pursuance to its terms Willmering entered upon said premises and did a substantial amount of work at a substantial expense in stripping off the surface soil covering the gravel in order to be able to obtain the gravel from the pit, and proceeded to haul gravel therefrom during the three years mentioned in said contract, paying to Hall the amounts due therefor under the terms of the contract. It was admitted in the pleading that Hall did not give any notice to Willmering 30 days prior to the expiration of the three-year period of an intention on his part to terminate the contract. Willmering continued to take gravel from said pit after the expiration of the three-year, period, tendering Hall monthly the amounts due therefor, which payments were rejected, except one payment made in November, 1917, which was accepted by Hall, though he offered to testify that he had, prior to such acceptance, given Willmering notice that the contract had terminated. Hall, on the trial, offered to testify to the effect that Willmering did not give him any notice, either written or oral,- that he desired to continue the use of said gravel pit prior to. about November 7, 1917; that he, Hall, lived about three-fourths of a mile from the gravel pit, and did not see Willmering hauling any gravel therefrom during September, 1917, the last hauling before September 14, 1917, he noticed being doné in July or August, and the first hauling after the said date observed by him being some time in October, 1917 .f that he called on Willmering on Novembe' 7, 1917, and informed him that the leasi1 had expired, at which time Willmering claimed that it lasted three years longer, from which time forth each party understood the claim of the other. This testimony was rejected, and the court gave a peremptory instruction for appellee, Willmering. The three assignments presented are to the action of the court in giving the peremptory instruction under this state of facts.

Appellant, on this appeal, relies on two propositions, which are, in substance: First, that the contract lacked mutuality and was without consideration, and was thus subject to termination at any time at the option of either party; second, that the provision for the three-year extension was an option which, to be available, must have been accepted and such acceptance communicated to Hall in some way prior to the expiration of the three-year period. We will discuss these propositions in the order named.

The contract contained no absolute agreement on the part of Willmering to do anything; the agreement to pay for the gravel which he might take and to perform the labor necessary to its taking coming into operation only as he might see fit from time to time to exercise the privilege of taking gravel, and being an incident thereto. It is clear, therefore, that prior to the time that he stripped the ground preparatory to esercising the privilege the contract was unilateral, and might have been terminated by either party, and we are to decide the effect upon the situation that the expenditures made by Will-mering in. so preparing the ground for the taking of the gravel would have upon the rights of the parties. We are referred, in support of the first proposition, to cases dealing with contracts for the sale of personal property, such as Campbell v. American, Handle Co., 117 Mo. App. 19, 94 S. W. 815, H. & T. C. Ry. Co. v. Mitchell, 38 Tes. 94, Cold Blast Transportation Co. v. K. C. Bolt & N. Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696, and Fontaine v. Basley, 90 Ga. 416, 17 S. E. 1015. The line of authorities is, of course, valuable as establishing principles of law that might be appropriately applied to every character of case. But the contract under consideration is more in the nature of a lease or license to mine or to do similar acts on the premises of the grantor, which may result in mutual benefit to both the grantor and grantee of the right, and there are authorities in this branch of the law which we think are more directly in point, and which will control the decision of this case. A mere license under earlier law decisions might be revoked at the will of the grantor, so the right of the licensee was analogous to that of Willmering in this case, in that it was subject to termination at the will of the grantor of the right or privilege. In many jurisdictions, however, courts of equity have interposed to protect such licensee against the arbitrary exercise of this right of revocation, where on the faith of its grant the grantee thereof had made expenditures on the land for the purpose of exercising the privilege. R. C. L. vol. 17, pp. 576-585; Washburn on Law of Real Property, vol. 1, pp. 661-673; R. C. L. vol. 18, p. 1189; 25 Cyc. pp. 645-649; Hazelton v. Putnam, 3 Pin. (Wis.l 107, 54 Am. Dec. 158; Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Flickinger v. Shaw, 87 Cal. 126, 25 Pac. 268, 11 L. R. A. 135, 22 Am. St. Rep. 234; Munsch v. Stelter, 109 Minn. 403, 124 N. W. 14, 25 L. R. A. (N. S.) 727, 134 Am. St. Rep. 785, and notes. The tendency of the decisions of this state is evidently to follow this general principle of protecting the licensee under such circumstances. Risien v.Brown, 73 Tex. 135, 10 S. W. 661; J. M. Guffey Petroleum Co. v. Oliver, 79 S. W. 884; Owens v. Corsicana Petroleum Co., 169 S. W. 192; Thomas v. Junction City Irrigation Co., 80 Tex. 550, 16 S. W. 325 (expression in first column of page referred to); Ft. Worth & N. C. Ry. Co. v. Sweatt, 20 Tex. Civ. App. 543, 50 S. W. 162; C., R. I. & G. Ry. Co. v. Johnson, 156 S. W. 256. It is true that the particular questions being discussed in a great many of the authorities cited did.not concern the question of consideration or mutuality of the contracts. The purpose of our reference to such authorities is to show that such decisions establish a rule which our courts seem disposed to follow, that expenditures made on the land under grant of a license may modify and in some instances abrogate the right of revocation by the grantor that would otherwise exist. It will appear also by reference to the authorities, that there is considerable confusion as to just what the rights of the licensee or lessee are under the circumstances stated. Some of the authorities seem to proceed on the theory that the expenditure become a consideration for the grant, and it thereupon becomes irrevocable; for instance, it is said by the Supreme Court of Pennsylvania, in the case of Rerick v. Kern, 14 Serg. & R. 271, and quoted in the case of Flickinger v. Shaw, supra, that:

“A license may become an agreement on valuable consideration; as, where the enjoyment of it must necessarily be preceded by the expenditure of money; and when the grantee has made improvements or invested capital in consequence of it, he has become a purchaser for a valuable consideration. Such a grant is a direct encouragement to expend money, and it would be against all conscience to annul it as soon as the benefit expected from the expenditure is beginning to be perceived.”

Other authorities merely hold that the license cannot be revoked without compensation in some way for the expenditures. In the case of Guffey Petroleum Co. v. Oliver, supra, the court construed an oil lease to be terminable at the will of either party because it was not mutual, and allowed the lessor to cancel it upon “doing equity,” which consisted in payment to the lessee of the amount expended upon the land. The plaintiff in that case sued for a cancellation of the lease, and offered in his pleading to pay the. lessee for such expenditures. The plaintiff’s petition in this case admitted that the defendant had removed the surface dirt from a portion of the gravel pit at some expense to himself, preparatory to hauling sand and gravel therefrom, but did not offer to compensate defendant in any way for such expense. .It was alleged in this connection that ten cents per yard was a low price for the gravel at the pit, and that in consideration of such low price the said Willmering agreed to perform all labor necessary for the removal of said sand and gravel from the premises, and that the removal of the surface soil was made under such agreement. It fairly appears from these allegations that the value of the gravel pit would be increased by the acts of Willmering, as whoever might thereafter take the gravel would reap the benefit of his work in preparing it for removal. .It thus appears from the pleading and the evidence offered in support thereof that Will-mering, under the authorities referred to, at least lias some equities in the premises. We do not think it becomes necessary to determine whether upon the making oí the expenditures the contract became irrevocable during the term provided by it or whether it might be terminated upon compensation in some way, such as a court of equity might determine, to Willmering for the expense incurred in removing the surface soil from the gravel beds that he had not yet exhausted. Since plaintiff sought relief of equity by injunction to prevent any further use of the privilege without making any offer of compensation, we do not think he was entitled to a judgment under either theory of Willmering’s rights.

As to the second proposition, it is conceded that if the option to continue is properly a contract for an option, notice of acceptance before termination of the three years would be necessary. Appellee contends that the contract is not strictly one for an option, but is analogous to stipulations in lease contracts which provide for extension for an additional time upon expiration of the term provided for in the contract. Our examination of the authorities leaves us in considerable doubt as to whether the contract is a lease or merely creates a license. We are convinced, however, that under our decisions we may safely hold that the contract upon entry by Willmering upon the lands for the purpose of exercising the privilege created some interest in the land. Parsons v. Hunt, 98 Tex. 420, 84 S. W. 646; Benavides v. Hunt, 79 Tex. 883, 15 S. W. 398. If this be true, then there is a fairly close analogy between this contract, which provides for a continuance of this right or interest and those lease contracts which provide for extension, as referred to. In the lease contracts containing such provisions for extension, no formal notice by the lessee of his election to exercise the option is required, his continued occupancy of the premises after the expiration of the term being sufficient indication of his election to extend the term for the additional time stipulated in the contract. Street-Whittington & Co. v. Sayres, 172 S. W. 775; Tiffany on Landlord and Tenant, § 222; Underhill on Landlord and Tenant, § 803. The contract in this case, after expressly providing the character of notice that Hall should give in the event he desired to end the contract at the expiration of three years, merely provides that Willmering at his option shall have the right to continue the contract, if Hall shall fail to give the notice provided for, and does not provide for any notice, or the method of giving it, of Willmering’s election to “continue the contract.” Under these circumstances we think that the parties did not contemplate that any notice by Wttllmering was necessary other than that imported from the continued exercise of the privilege at the end of three years, and this was all that was necessary to indicate his acceptance of the so-called option.

We are of the opinion that the judgment should be affirmed.

On Motion for Kehearing.

Appellant strongly assails our conclusions in this case, particularly as to the second proposition discussed in the opinion. His position thereon is, in substance, that under the terms of the contract notice of election to continue the contract is required at the expiration of the three-year period, and that the analogy between this contract and the provisions in lease contracts for extensions of leases cannot be applied because in the landlord and tenant cases the tenant is in actual possession of the premises leased, so that this continued occupancy is notice, while in this case there was no possession or other overt act at the time of the expiration of the lease that would convey notice of election at the time required by the contract. The only questionable assertion in this proposition is in the first postulate; if that is correct, we would accept the proposition as proven. We cannot accept this postulate, however, without question. The authorities, as we understand them, regard a lease, providing for an extension, not as an offer to enter into a contract, but as conferring a right on the part of the lessee, subject to the conditions of the contract, to continue the enjoyment of a right already granted and being enjoyed. It is said in Tiffany’s Landlord and Tenant, § 218, that:

“Such a lease for a certain term, giving the lessee a right of extension for another term named, may be regarded in either one of two ways: (1) As creating a leasehold estate in the lessee of a duration measured by the sum of the two terms, with an option in the lessee to terminate it at the end of the first-named term, either by relinquishing possession, or failing to give notice of a desire to continue possession, or otherwise, according as the language conferring the privilege may provide; or (2) as creating two estates in the lessee, one to commence upon the termination of the other, provided all conditions precedent as to election and notice are satisfied.”

It is generally stated by the authorities that unless it is required by a term in the lease contract, no notice of the election by the lessee to have the term continued is required, this holding being on the assumption that such a contract contemplates that the only thing the lessee is required to do as a condition or as evidencing his election to continue the contract is to continue in possession of the premises. Montgomery v. Hamilton County, 76 Ind. 362, 40 Am. Rep. 250; Heffron v. Treber, 21 S. D. 194, 110 N. W. 781, 130 Am. St. Rep. 711; Chandler v. McGinning, 8 Kan. App. 421, 55 Pac. 103; Sheppard v. Rosenkrans, 109 Wis. 58, 85 N. W. 199, 83 Am. St. Rep. 886; Quinn v. Valiquette, 80 Vt. 434, 68 Atl. 515, 14 L. R. A. (N. S.) 965; 16 R. C. L. 885. Possession is thus not considered as satisfying a condition of notice, but as evidence of the prolongation of the term of the lease. If the exercise of the right consists in something other than possession, we see no reason why the doing of such acts after the termination of the first term in the same manner as before does not by the terms of the contract constitute the means of the indication by the grantee of his election to continue the contract for the additional term. A contract for renewal of a lease is ordinarily regarded differently. It is an option to contract, and notice of its acceptance is required, and many authorities assert that retention of possession in such case is not notice. Andrews v. Marshall Creamery Co., 118 Iowa, 595, 92 N. W. 706, 60 L. R. A. 399, 96 Am. St. Rep. 412, as well as authorities already referred to. This distinction we think destroys in a large measure the force as authority of the case of Wright v. Kaynor, 150 Mich. 7, 113 N. W. 781, referred to by appellant in his argument on motion for rehearing. The case of Falley v. Giles, 29 Ind. 115, also cited by appellant, is not on its facts in point, though some of the expressions in the opinion support appellant’s position.

While the conclusion may not be free from doubt, we adhere to our construction of the contract as announced in the original opinion, and the motion for rehearing will be overruled.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HALL, J.

text:
    BANKERS’ HEALTH & ACCIDENT ASS’N v. WIDKES.
    (No. 1464.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 5, 1919.
    Rehearing Denied March 5,1919.)
    1. Continuance <&wkey;26(l) — Absence of Witness — Diligence.
    Where circumstances surrounding death of insured on December 19th was investigated 10 days thereafter, suit on policy filed April 24th following, and defendant cited April 30th, court did not err in overruling defendant’s application for continuance filed June 3d, because of absence of four witnesses; the witnesses not having been subpcenaed, no effort having been made to take their depositions, and application not stating that due diligence had been used.
    2. Insurance <&wkey;646(7) — Death by Suicide —Presumption—Burden of Proof.
    Where it is shown that deceased met his death as the result of external and violent means, there arises a presumption against suicide, the force of which is to place upon the insurer the burden of establishing that insured’s death was caused by his own hand, or by voluntarily exposing himself to danger.
    3. Insurance <&wkey;668(12) — Accident Insurance — Suicide—Question for Jury.
    In action on accident policy whether insured’s death was due to suicide, held, under the evidence, for the jury.
    4. Insurance &wkey;>665 (5) — Accidental Death —“Eyewitness.”
    Plaintiff, who was in the room with insured, her husband, when he was shot, and who described minutely circumstances immediately preceding the occurrence, was an “eyewitness,” within terms of policy requiring claimant to establish accidental character of injury by testimony of at least one eyewitness.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Eyewitness.]
    5. Insurance <&wkey;602 — Accident Insurance —Recovery of Attorney’s Fees.
    Defendant held not a mutual assessment, health, and accident association, organized under Rev. St. 1911, arts. 4794-4808, but an accident insurance company, to which article 4746, providing that failure to pay loss within 30 days shall subject insurer to additional damages and attorney’s fees, applies.
    6. Insurance <&wkey;668(ll) — Voluntary Exposure to Danger — Evidence-
    In action on accident policy, evidence held not to require court to submit issue whether death of insured was caused by his own voluntary exposure to unnecessary danger.
    7. Insurance <&wkey;466 — Voluntary Exposure to Danger — Proximate Cause.
    That insured voluntarily exposed himself to unnecessary danger would not defeat recovery, unless his act in so doing was the proximate cause of the accident.
    Appeal from District Court, Garza County ; W. R. Spencer, Judge.
    Suit by Mrs; Lillie Wilkes against the Bankers’ Health & Accident Association. Verdict and judgment for plaintiff, and defendant appeals.
    Judgment affirmed.
    Samuel Schwartz, of Houston, and W. F. Kelly, of Post, for appellant.
    Shurtleff & Cummings, of Waco, and Chas. L. Black, of Austin, for appellee.
   HALL, J.

This suit was filed against appellant upon a policy of insurance issued to the husband of appellee, William A. Wilkes. Appellee prayed for judgment for ?5.000, the face of the policy, and for the statutory penalties provided by Rev. St. 1911, art. 4746. The trial was before a jury, resulting in a verdict in favor of appellee for the full amount claimed in the petition.

Under the first assignment appellant says there is error in the court’s action in overruling its motion for a continuance. The suit was filed April 24, 1918. Appellant was - cited April 30th. The motion was filed on June 3d. The statement of facts shows that appellee’s husband died December 19, 1917, as a result of a gunshot wound which appel-lee claims was accidental, entitling her to recover under the policy. Appellant’s contention is that appellee is not entitled to recover because her husband suicided, or that his. death was caused by the voluntary exposure of himself to danger. Immediately after the pistol which hilled Wilhes was fired, appellee fled to the home of a neighbor, and it appears from the statement of facts under intense excitement and while frantic with grief made statements to a number of witnesses concerning the occurrence. The application for continuance is filed on account of the absence of four of the witnesses, all females, who heard her mahe the statements. About 10 days after the death of the husband, on December 19, 1917, a representative of the company went to the town of Post, where appellee resided, and made an investigation oí the circumstances surrounding the death, and after the investigation declined to pay appellee anything under the policy. These witnesses were never subpoenaed, nor has any effort ever been made by appellant to take their depositions, it was not shown that Miss White, who it is alleged was sick, was too ill during the entire 30 days to answer interrogatories. Appellant has shown no diligence whatever to procure the testimony of the witnesses, and its application fails to state that it has used due diligence. Not being a statutory application under all the circumstances, it was addressed to the sound discretion of the trial court, who qualified the bill by stating that the testimony, if secured, would bo cumulative. We think the court did not err in overruling the application.

Appellant asked the court to direct a verdict in its favor, and the court’s refusal is made the basis of the third and several subsequent assignments. It is contended under this assignment that there is nothing in the record to sustain the theory of an accidental shooting, and that the overwhelming weight of the testimony indicates clearly that Wilkes’ death was the result of voluntary exposure to danger or suicide. In the first place, where it is shown that the deceased met his death as the result of external and violent means, there arises a presumption against suicide. The force of this presumption is to place upon the appellant the burden of establishing in this case that Wilkes’ death was caused by his own hand, or by voluntarily exposing himself to danger. It was shown by the testimony of appellee that she had arranged with her husband to do some Christmas shopping on the afternoon of December 19th, and he told her to ring him up at his place of business after she reached the business district and he would join her there and assist her in her shopping, that she went to town about 6:45 p. m., called him from Dowdy’s store to meet her at Warren’s Drug Store, and that he came in to the drug store in a few moments. She left their children at home in charge of two girls who lived in the neighborhood, and who had agreed to care for them during her absence. She says they were shopping for more than an hour; made several purchases in the way of Christmas presents for the children, and it appears that he took an active interest in the matter. She testified: '

“As we went home that afternoon William [deceased] and I talked quite a little bit about what we would do Christmas. We were planning to have a little houseparty. We planned what we would do when the girls, and boys came and discussed what we would do Christmas Eve night and Christmas Day. William made the remark to me that evening going home that he thought our children were old enough to appreciate Christmas at home. We had been in the habit of going to mother’s for Christmas Eve, and had never spent Christmas Eve at home. So we discussed it, and he thought it was best to start Christmas Eve at home, and have Santa Claus at home, and -we could go to my mother’s the next day for dinner, and I agreed with him, and said that I thought it would be nice for he and I and the babies to be at home together. There was no discussion between he and I other than an agreeable conversation that afternoon. My mother lived here in Post. The little girls were there [home] when we got there. When we got there we had quite a few bundles, and we went in and laid them on the dining room table. * * * William had carried a gun practically - ever since I had known him, and it had been his habit and custom the few months preceding his death, while we were using the dining room as our living room, to always put his pistol on the dining room table when he came in the room. That evening when we came in we went into the dining room, and the little girls that we left there were in the dining room. William talked to the little girls, and joked with them, talked with them, and teased them. * ⅜ ⅞ We had a victrola there in the living room, large double doors between the living room and dining room, and it set right inside, around the door from the dining room. In the' room I refer to as the living room, we were not keeping up a stovo in there at that time; we were using the dining room-for the living room at that time. The victrola was in the room where there was no fire. When William came from the bathroom he went into the dining room, and the little girls were sitting by the fire, and he said something to them, and went and wound the victrola, and turned it on. The little girls left directly after he began playing the victrola. ⅝ * * ,⅛⅛61- t"he girls left of course William was standing in the dining room by the side of the dining room table. I was in the bedroom, fixing the light. I was in the act of taking off my hat, and when I came back through I went to attend to the victrola and William was standing like this on this side of the dining room table, standing there by the table. I don’t know what he was doing. I don’t think it was an unusual thing for him to do. I didn’t notice what he was doiifg, but while I was there he told me he was going to Judge Dursts, and didn’t know how long he would be gone, but would not be gone very long. Something had previously been said by us about him going to Judge DurSts to get some books. We had been swapping books backward and forwards, and when we were up town Judge Dursts made the remark that he had some good books; he remarked that it seemed like he had been doing all of the borrowing of books; we had not borrowed as many as he, and he said to William to come over and get some books, and we made mention of it going home. When I got there at the victrola, he was still standing by the dining table. When he said something about going to Judge Dursts, and when he said that — I don’t recall that I said anything in answer to that — I said, ‘All right;’ that is what I usually said. I don’t know what the next thing was that attracted my attention, but something attracted my attention, and I wondered what it was that did attract my attention. Q. Didn’t it sound like a click or something? A. X don’t know what it was arrested my attention, but when X turned I just saw the gun flash. I saw just a fire. I never saw the gun at all. I don’t remember seeing it in William’s hand. I don’t remember seeing it in his hand that night, and I know I didn’t see it when I turned. All I could see was just a fire. I don’t know whether I saw him fall or not. I went to Mrs. Williams the minute I saw the flash.”

John R. Williams, who had been associated with the deceased in business, saw him late in the afternoon, and testified:

“He didn’t appear to be drinking at all. I didn’t think he was drinking at all. He was away from the store about an hour that evening; went up town and stayed awhile, I suppose, about an hour, and came back, but I didn’t smell any whisky on his breath, and he didn’t act like a man who had had a drink.”

Vida Hunter, one of the little girls who kept the children while appellee was shopping, testified:

“I recall the evening when Mr. Wilkes was killed; I had been over to Mrs. Wilkes’ home that evening to keep her children. Stella Terrell, another little gbfl, was there with me. We were there when Mr. Wilkes and his wife returned, and there was nothing unusual in the appearance or conduct of either. Mr. Wilkes came in there and spoke to us, and then he turned around and went back in there and started the victrola. He had something to say to me. tie was just as jolly as he ever was, cutting up like he always did. I left soon after he came in. Before I left I didn’t see him put a pistol up to his breast and stagger around over the room. I didn’t s^e him with a, pistol at all.”

The appellee had testified that her husband was drinking on the afternoon in question, and on cross-examination testified:

“I didn’t have any trouble with Mr. Wilkes that night; no quarrel with him or anything about his condition, about him being drunk. I didn’t upbraid him for it. Our married life had always been happy. I certainly didn’t have any trouble with him at any time. I don’t mean to say that we never fussed or quarreled. I think it Would be an unusual married life for people not to have disagreements. We never had a ' fuss that we didn’t make up. Never had a fuss with him in my life that was not perfectly all right before it was over. That is as far as domestic troubles went with us. He appeared very happy at home. He certainly did love his children; also loved me. I had never asked him for anything I didn’t have.”

Appellant further insists as evidence tending to prove suicide that the deceased, at the time of his death, was embarrassed financially, and that he had been losing considerable money. Upon this point the evidence shows that he was a bad manager and careless to the extent of being neglectful of his financial interest, but there is nothing to show that this condition worried him. J. P. Crowder testified concerning the pistol which caused the death of Wilkes:

“The pistol that I let Mr. Wilkes have and which was afterwards stolen from me was pretty easy on the trigger. All that you had to do was to touch the trigger and it would go off. It seemed like it was sort of a weak spring. I didn’t tell Mr. Wilkes about that when lie borrowed the gun. I don’t know that I had ever had the gun to go off accidentally. I know it would not hardly stand, etc. * * * It is true that people ordinarily carry these Colt’s pistols of that make on an empty, and that is the rule in ease it drops or hits anything it would not go off. The hammer of this gun now in this position I guess would be called on half cock. The cylinder will not turn when the hammer is down. It is not necessary to put it in that position in order to turn the cylinder. When a pistol is in perfect working order it cannot be pulled by the trigger from that position there halfcocked. When the pistol is all right, in good working order, that is supposed to be safety. Colt’s pistols sometimes get in a position where-they can be pulled from a half cock. That pistol looks to be in that condition now where it can be pulled. If this hammer is down on a shell, and if it falls that way, the cartridge can be exploded. It.must be made to explode by hitting on something hard like that.”

Sheriff Robinson testified with respect to going to the residence after the occurrence as follows:

“I examined the pistol I found there under the edge of the table. There were four loaded shells, one empty shell, and one empty chamber in the gun. It was a six-shooter. There was a loaded shell between the empty one and the empty chamber. Most people who carry guns of that type carry the hammer on an empty chamber to prevent it from exploding if they happen to drop it. If a Colt’s of that kind is on an empty chamber-, and a person pulls it [the hammer] back to fire it, it will, under those circumstances, fire the cartridge that is next to the empty chamber because the cylinder turns to the right.”

The fact that when the pistol was found by the sheriff it had a loaded shell between the empty chamber and the empty shell upon which the hammer rested is urged by appel-lee as a circumstance to rebut the idea of suicide, and it is insisted that this fact tends to show that he was trying to adjust it or examining it in some way wlien if he had intended to kill himself the first shell to the left of the empty chamber would have been exploded. We think the jury were entitled to consider this fact with the others herein-before mentioned. Another circumstance which appellant insists shows that Wilkes died by his own hand is that there was found on the muzzle of the pistol burned cloth, and the deceased’s flesh was powder burned to some extent where the bullet entered his body. The doctor’s testimony shows that the bullet entered between the third and fourth ribs, and was found lodged under the skin about an inch above a direct line through the body. J. R. Williams testified:

“I have set rags on fire from the flash of a pistol at 8 to 12 inches. I don’t remember of ever holding a pistol up to within 2 inches of an article and experimenting to see how big a space it will discolor with the powder. I have never tried it at all to see how big a space it would cover; just tried it to set cloth afire because I didn’t have any matches. I can build a fire with a pistol. It can be done, and has been done.”

Several witnesses testified with reference to the condition of appellee immediately after the occurrence. Mrs. Ben Williams said:

“She was excited. I guess you would call it hysterical. She had hold of me all the time. The condition that I speak of, the hysterical condition, continued when these other ladies and gentlemen came. She continued to be hysterical, and cried out at times that T begged and plead with him not to do it.’ ”

Mrs. Lee Duckworth said:

“As to whether or not she was excited and distressed, will say that she seemed to be perfectly insane; very hysterical.”

V. A. Robinson said:

“She was very excited during the time she was making these statements to me that I have mentioned. She fell time after time on the stair steps while she was in that frantic condition.”

John R. Williams testified:

“I talked with Mrs. Wilkes that night, and she was talking about William Wilkes’ death, of course. I don’t believe she undertook to detail to me just the exact circumstances the way it all happened. She was crying and taking on, and telling a good many things, and talking about it, and I don’t think she described, as well as I remember now. In the first place, I know she was in no frame of mind to be responsible for a great many things she was saying; she was very much excited. She would start in to tell it and go off in a frenzy, screaming and hollering, and you could not get any satisfaction or sense out of anything .she was saying. She did not tell me that she had tried to keep him from doing it; she said she tried to keep him from going to Judge Dursts.”

Whatever statements the appellee may have made during the time immediately after the shooting, we think this testimony would require the court to submit the issue of suicide to the jury, and, under such evidence, if the court had directed a verdict for appellant we would have felt it our duty to reverse the judgment.

What is here said disposes of the fourth and fifth assignments.

Under the sixth assignment appellant , insists that the court erred in not submitting this special issue to the jury:

“Was there an eyewitness to the death of William Wilkes by whom the accidental character of the shot that caused his death has been established ?”

As shown by the testimony hereinbefore quoted, appellee had been shopping with her husband for more than an hour before returning home; that she was in the room with him at the time the pistol was fired; that she had turned and was looking toward him or at him when she heard the report of the pistol and saw the flash. She describes minutely the circumstances immediately preceding the occurrence, stating that he was standing at the table in the dining room where he kept his pistol when he was at home, and we think this is a sufficient compliance with the condition in the policy pleaded by appellant, and which provides:

“If the insured receives bodily injuries, fatal or otherwise,, by the discharge of firearms, » * * the claimant shall establish the accidental character of the injury by the testimony of at least one eyewitness to the accident other than the insured himself,” etc..

A similar clause in insurance policies lias been considered several times, and in the case of Roeh v. Business Men’s Protective Association, 164 Iowa, 199, 145 N. W. 479, 51 L. R. A. (N. S.) 221, Ann. Oas. 1915C, 813, has been declared to be valid and binding. Inasmuch as this clause endeavors by contract to fix rules of evidence binding upon courts of justice, and to control judicial proceedings, we are inclined to doubt its validity. Rules of evidence are established by law, and contracts of this character have frequently been declared contrary to public policy and void. Utter v. Travelers' Insurance Co., 65 Mich. 545, 32 N. W. 812, 8 Am. St. Rep. 913; Travelers’ Insurance Co. v. Sheppard, 85 Ga. 751, 12 S. E. 18; Reynolds v. Insurance Co., 49 Hun, 605, 59 Hun, 13, 1 N. Y. Supp. 738; Hannon v. Grand Lodge, 99 Kan. 734, 163 Pac. 169, L. R. A. 1917C, 1029; W. O. W. v. Robinson, 187 S. W. 216. It is not, however, necessary for us to determine the validity of this stipulation, since we think, under the few decisions in which this provision has been construed, appellee was an eyewitness within its terms. 14 R. C. L. p. 1265, § 441. The first case, in which such a provision was discussed, is Lewis v. Brotherhood, 194 Mass. 1, 79 N. E. 802, 17 L. R. A. (N. S.) 714. The Supreme Court of Iowa, in Ellis v. Interstate Business Men’s Accident Association (Iowa) 168 N. W. 212, reviewed the authorities to some extent, and quoted from the Roeh Case, supra, in part as follows:

“In the case at bar the event, that is to say, the accidental character of the discharge of firearms resulting in death, must be established by at least one person other than the insured, and 'who was an eyewitness,’ does not necessarily mean that the witness should have seen the exact manner of the discharge; but it seems to us that it does comprehend the presence of the witness at or near the scene, and his direct observation of such facts and circumstances connected with the immediate transaction, as of themselves, and without any aid from presumption or inference arising from love of life, or the instincts of self-preservation, indicate that the shooting was accidental.”

In the Ellis Case it appears that the deceased, prior to the accident, was working on his automobile. His wife heard him come into the kitchen, and as he entered he called to her: “Come here, Nita; I am hurt.” She found him standing in the room dressed in his overalls, and had a monkey-wrench in his hand. She inquired.: “How are you hurt?” He replied: “I feel as if something hit me. I was reaching on the shelf for the grease gun when something knocked me over. I think it must have been the .22; I did not know it was there.” It appears that the gun was lying on the shelf, covered so he could not see it; that the safety device was operated by slipping it to the side, and it would slip with the slightest, touch. He told the doctor that he thought it was an electric shock at first that knocked him down, but when he got up he saw some smoking rags and the end of the rifle sticking out. The effect of the court’s holding in the Ellis Case is that his wife, having seen him before his death three minutes after the injury, was an eyewitness, within that clause of the policy. In the opinion the following quotation from Lewis v. Brotherhood, supra, is made with approval:

“An eyewitness is a person who testifies to what he has seen. By the terms of this policy the facts and circumstances of the accident and injury are to be established by. those who saw' them. Not only are the facts and circumstances of the injury to be established by an eyewitness, but also of the accident, that is, the operating cause of the injury. Enough must be testified to by eyewitnesses to show the operating cause of the injury, or at least to show that at the time of the injury there was an operating cause to which the accident may fairly be attributed, and to indicate in a general way the nature of that cause and the manner of its working.”

As shown, the Lewis Case arose from the fact that the' insured was drowned while out boating with a young lady. It appears that Lewis and his companion were seen on the river in a canoe. A little later the empty canoe-was found floating upon the river, and still later the bodies of Lewis and his companion were recovered. No one saw the canoe capsize, and in fact there was no eyewitness of the immediate facts of the drowning. It further appears from the statement of facts made in the opinion in the Ellis Case that two witnesses who were on the river about five minutes before 4 o’clock in the afternoon met Lewis and the lady going in the opposite direction. One of the witnesses testified that three or four minutes after this meeting and after rounding a point of land which shut the canoe and its occupants from his view he heard a cry or scream, but did not return to see what had happened. Another witness, who said he was on the river about 4 o’clock, discovered the upturned canoe and some articles of clothing floating on the surface of the water. This seems to have been about ten or fifteen minutes after 4 o’clock. Quoting from the opinion, it is said:

“The jury might have found on the evidence of actual eyewitnesses that shortly before the time when the accident -happened Lewis and Miss Hurley were upon the river in what might be called a ‘cranky’ canoe, liable to overturn at any moment, unless unusual care was exercised both by Lewis and his companion; that within, five (perhaps fewer) minutes of the time at which they were last seen alive the canoe was overturned and the bodies were under water. Here, then, is shown upon the testimony of eyewitnesses an operating cause, viz. the imminent liability of the capsizing of the boat by reason of its cranky nature, taken in connection with the fact that it had two occupants of whom one was a young woman not shown to have been experienced in aiding to keep the canoe in balance. It is not the case of a boat which is of such size and construction as to be not liable to be upset by the movement of persons in it, but it is a case of a cranky canoe having two persons in it where a not unusual movement, even of one of them, may result in the capsizing of it. An operating cause * * ⅜ is ever present under such circumstances, and that cause is disclosed by * * * eyewitnesses. Moreover, upon the evidence the jury might have found that the movements of the canoe and its occupants were shown by eyewitnesses up to a time within three or four minutes of the accident, and that every operating cause of the accident except the one shown to have been present was fairly excluded by the testimony of these same eye-witnesses. It must be held that in the case before us the facts and circumstances of the accident and injury were established by eyewitnesses within the moaning Of the policy.”

- After this quotation from the Lewis Case the court proceeds: *

“If a ‘cranky canoe’ is an ever-present cause of accident to. those riding therein, is it not-equally clear that a loaded gun with very delicate trigger action, in a position where it may be disturbed by a careless or thoughtless movement, is an ever-present operating cause of peril to those who may be employed within its reach?”

Without quoting further from the authorities, suffice it to say we think under the record the evidence did not raise the issue which appellant requested the court to submit.

Special issue No. 2, submitted to the jury, is:

“What would be a reasonable compensation, as attorney’s fees, for representing the plaintiff in this case?”

The submission of this issue is the basis of the seventh, ninth, and eleventh assign-, ments, under which it is contended that because appellant is organized under chapjjer 5, title 71, of the Revised Oivil Statutes of Texas, the penalty provided by article 4746, Rev. St. 1911, does not apply. Appellant alleged that it was a mutual assessment, health and accident association, organized under said chapter and title, but there is no proof in the record of that fact. The only, evidence we find which e.ven remotely bears on the issue is the policy itself, which provides for the payment of $1 monthly. This payment is termed both a premium and an assessment. It is stipulated that a failure to pay this monthly premium before the day fixed for payment will result in the assured being in default, and the termination of his membership. As far as we are able to determine from the record, appellant is in that class of accident insurance companies to which article 4746, providing that a failure to pay a loss within 30 days renders it liable to pay the holder of the policy an additional sum of 12 per cent, damages on the amount of the loss, together with attorney’s fees, applies. National Life Insurance Co. v. Parsons, 170 S. W. 1038; International Travelers’ Association v. Branum, 169 S. W. 389.

Appellant requested the court to submit this special issue to the jury, viz.:

“Was the death of William Wilkes caused or occasioned by his voluntary exposure of himself to an unnecessary danger?”

We think the issue was sufficiently raised by the pleadings, but there is no evidence which required the court to submit it. The testimony relied upon by appellant as tending to sustain this contention is from the ap-pellee and Mrs. Lee Huckworth. Appellee testified:

“A few moments ago, when counsel asked me if there was anything unusual .there about William, and I started to say something, and then said I could not be certain, that was something about him staggering, that was when he staggered across a chair, and it seemed to me like I saw the little girl smile and snicker, and it came over me that maybe he was drinking ; that was what I hesitated about.”

This clearly does not raise the issue, because it does not appear that deceased was in possession of the pistol at that time, or, if so, that it had been táken out of its scabbard. The little girl testified there was nothing unusual occurred, and that Wilkes was jolly and joking them like he always did. Mrs. Lee Duckworth, in reciting the statement made by appellee immediately after the shooting, said:

“She said the children was here, and I didn’t want them to see such a tragedy, and I made them leave. I thought at the time' that .she was referiing to her children but I know now her children were asleep at the time; and she and William had just returned from town, and these other children that were there had been watching and minding her children while she was gone; that is what I was told. She didn’t tell me what children it was, and I don’t know what children it was. I was told it was some other children there watching hers. I heard her say that she begged him not to do it, and she said he had a gun right up this way, just staggering around all over the room, and the children were laughing at him (just had a gun up against his left breast), and said he was staggering around, and that is why she told me about the children that were laughing at him.”

We think it is clear from the testimony of the little girl tha't this occurrence, an account of which appellee gave while in her semicrazed condition, did not transpire, and if we admit that he did place the muzzle of the pistol against his left breast, and stagger around the room for the purpose of amusing the children, this performance had evidently ended before they left the house. The evidence shows that the little girls left immediately after the return of appellee and her husband, and were not present when the shot was fired. The jury would not be authorized to presume that he continued such antics indulged in evidently to amuse the children, if Mrs. Duckworth is to be believed, after the children themselves had left the house.

Even though the evidence required the .court to submit the issue, as presented, it was improper. The fact that Wilkes voluntarily exposed himself to unnecessary danger would not defeat appellee’s recovery unless his act in so doing was the proximate cause of the accident, and the issue ignores that necessary element. Ætna Life Insurance Co. v. Hicks, 123 Tex. Civ. App. 74, 56 S. W. 87, 99; 1 C. J. 450, § 122; Fuller on Accident Insurance, pp. 241, 242. Any evidence other than that quoted, which tended to show the voluntary exposure by deceased to a known danger, is evidence bearing more directly upon the theory of suicide, and since the jury has found against that contention, the inquiry in that direction is foreclosed.

We think the judgment is the only one which could be properly entered under the pleadings and evidence, and it is affirmed.
      <i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    Tucker v. McCullough.
    (No. 2061.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 20, 1919.)
    1. Appeal and Error <®==>1011(1) — Review-Findings — Conflicting Evidence.
    Court’s finding on conflicting evidence will not be disturbed on appeal, though mere preponderance of the evidence points to a different conclusion.
    2. Vendor and Purchaser <®=>170 — Tender —Compliance with Contract.
    When purchaser tendered less than the consideration named upon the assumption that there was a shortage, he made such deduction at his peril, even if contract did give him the right to make deduction for shortage.
    3. Vendor and Purchaser <s=>185 — Performance — Tender.

      ' Where contract provided that it should become void upon purchaser’s failure to perform within certain date, vendor was not required to make conveyance where purchaser tendered less than the full consideration during such period, though after expiration of period the full consideration was tendered.
    Appeal from District Court, Red River County; H. H. Denton, Judge.
    Action by J. T. Tucker against George McCullough. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Moore & Hardison, of Paris, for appellant.
    Lennox & Lennox, of Clarksville, for ap-pellee.
   HODGES, J.

The appellant sued the ap-pellee to recover damages resulting from an alleged breach of a contract to convey land. In a trial before the court without a jury a judgment was rendered in favor of the defendant.

The court filed findings of fact, of which the following is the substance: On January 11, 1917, the parties to the suit entered into a written contract by the terms of which McCullough agreed to sell to Tucker his farm, consisting of 137 acres near Clarks-ville, in Red River county, on the basis of $70 per acre. There was also included in this sale some stock and farming implements at a specified additional consideration. The aggregate price of all the property was $10,590. Tucker agreed to purchase the property at the price named, and to give in part payment his home in Clarksville at an agreed value of $7,020; the remainder, $3,570, was to be paid by him in cash. Each party was to furnish the other with a complete abstract of title down to the date of the contract. It was also agreed between the parties that Tucker’s contract to purchase was conditioned upon his being able to borrow the sum of $5,500, upon terms named,

from D. H. Scott & Son of Paris, Tex., with the 137 acres as security therefor. It was agreed that if Tucker failed to secure the loan from Scott & Son, or from any other person, by January 15th, the contract was to become void. Another stipulation, however, was added, which provided that if from ■any cause Tucker could not secure the loan from Scott & Son he was to have until the 1st of February following to procure a loan from some other source. The contract was reduced to writing by D. A. Parker, the agent of Scott & Son at Clarksville, Tex. In pursuance of that agreement McCullough furnished the abstract of title, which was examined by Scott & Son, and returned by them with the statement that the title was satisfactory, but they desired that one of the tracts of land be surveyed in order to make-file field notes more definite. On January 15th McCullough called at the office of Parker in Clarksville for the purpose of completing the trade, provided Tucker’s abstract to his city property proved to be good. He was then informed by Parker that Scott & Son were satisfied with the title and were ready ito make the loan to Tucker, but desired a survey of a 32-acre tract in order to make the field notes more definite. According to the findings of the court based upon the testimony of McCullough, he made no agreement for a survey, but demanded a performance of the contract according to its terms. On January 21st McCullough notified Tucker, through Parker, that he considered their negotiations at an end, and demanded the surrender of his abstract and title papers. On January 27th the county surveyor, at the instance of Tucker, and without the knowledge of McCullough, made a survey of McCullough’s land, and found a shortage of 8¼ acres; and on January 30, 1917, through Parker, tendered McCullough a warranty deed, signed by himself and wife to his town property, and the sum of $2,992.-50 in cash in full payment of McCullough’s property, and demanded a conveyance of the farm, claiming credit for the shortage of 8⅛ acres. This offer was refused by McCullough, for the reason that the contract had by its terms expired on January 15th, and for the further reason that the sum of money tendered was not the full amount due under the contract. He denied that’ there was a shortage in the land as claimed by Tucker. There was no abstract of title tendered at that time by Tucker of his homestead property in the city. That property was then incumbered by a lien to secure the sum of $2,000. The court finds, however, that it was the purpose of Tucker to use the money secured from Scott & Son to pay off this lien, but at that time this had not been done. The court further finds that by surveys thereafter rn^de there was no shortage in the acreage of McCullough’s land, and that the sum tendered hy Tucker at the time above mentioned was not the full amount agreed upon as the purchase price. On February 8th, the day on which this suit was filed, Tucker proposed to waive the shortage claimed by him and to pay the full amount of the purchase price according to the original agreement. This offer was refused by McCullough.

The court concluded that under the circumstances time was the essence of the contract, and that McCullough had a right to treat the negotiations as at an end. The record shows that the cash market value of the land at the time the tender was made by Tucker was $85 per acre, and at the time •of the trial was $100 per acre. '

Under the first assignment of error the appellant contends that the court erred in finding that on the 15th day of January McCullough did not agree to have the 32-acre tract of land surveyed in order to comply with the requirements of Scott & Son. It is true that there was ample evidence to support a finding that McCullough, when informed of the requirement of Scott & Son, did agree to thereafter have the 32-aere tract surveyed. The testimony showed that McCullough did within a few days thereafter employ a surveyor and have the land surveyed. But according to his testimony, when the matter of surveying the land was first mentioned to him by Parker, Tucker was not present, and no agreement was made. He further testified that he did thereafter have the land surveyed in order to satisfy himself as to the distance he would have to go upon an adjoining tract of land to get the amount called for in his deed. The court had a right to settle the conflict in the evidence in the manner he did; and we cannot say, as a matter of law, that he erred. The fact that the mere preponderance of the evidence points to a different conclusion is not sufficient to warrant this court in setting aside a finding made hy the trial court.

It is also contended that the conclusion of law arrived at by the court was not warranted by the facts. It appears that the parties had named their terms very specifically, and had also named the time within which the conditions upon which the contract was to be finally consummated should be performed. It devolved upon Tucker, before he could demand a conveyance from McCullough, to tender the full amount of the consideration which he had bound himself to pay. When he offered less than the aggregate value of the land, upon the assumption that there was a shortage, he made that deduction at his peril, even if under the terms of the contract he had a right .to make such a deduction in the event of .a shortage. Under the findings of the court, according to the surveys thereafter made there was no shortage, and McCullough had a right to claim every dollar which his contract called for. Moreover, it appears from the findings of the court that at the time Tucker first made that tender he had not presented the abstract of title which he had bound himself to furnish, showing that he had a clear title to his property to be taken in part payment. It is true that after the expiration of the last date named in the contract as the limit of the time allowed Tucker did tender the full amount which he agreed to pay, and offered to waive any shortage of the land, but that was too late. The record shows that the value of the land was increasing, and he had no right to claim a privilege which his contract did not accord.

We have carefully examined all of the assignments of error, and conclude that the judgment should be affirmed; and it is so ordered.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes