text:
    CHICAGO, R. I. & G. RY. CO. v. LINGER.
    (Court of Civil Appeals of Texas. Amarillo.
    April 12, 1913.)
    1. Carriers (§ 218) — Carriage of Live Stock — Feeding and Watering.
    A provision of a contract for the- shipment of cattle that the shipper assumed all risks and expenses in connection with feeding and watering the cattle was void under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 13071) to the Interstate Commerce Act (Act Eeb. 4, 1887, c. 104, § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]).
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    2. Carriers (§ 218) — Carriage of Live Stock — Feeding and Watering.
    A provision of a contract for the shipment of cattle that the shipper assumed the risk and expense in connection with unloaaing, feeding, and watering the cattle was waived, where the carrier’s yardman undertook to perform the duty imposed thereby on the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.]
    3. Appeal and Error (§ 216) — Instructions —Necessity op Requests.
    A charge on the measure of damages which was too broad could not be complained of on appeal, where a correct charge was not requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. § •640.]
    4. Carrier’s (§ 180) — Limitation op Liability-Notice.
    Under the Carmack Amendment ÍAct June 29, 1906, c. 3591, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) to the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, I 20, 24 Stat. 386. [U. S. Comp. St. 1901, p! 3169]), making carriers liable for the negligence of connecting carriers, a stipulation in a contract of shipment requiring notice in writing of any damages to the shipment, to be given to the initial carrier within 90 days, was sufficiently complied with by giving notice to a connecting carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.]
    5. Carriers (§ 159) — Limitation op Liability — Notice—Waiver.
    Where a carrier, prior to the institution of a suit for damages, did, not refuse payment because notice was not given within 90 days, as required by the contract of shipment, and made no objection to the form or contents of a notice given to a connecting carrier, it waived that provision of the contract.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 668-671, 699-703y2, 711-714, 718, 718%; Dec. Dig. § 159.]
    Appeal from Oldham County Court; T. B. Jones, Judge.
    Action by A. F. Linger against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Gustavus & Jackson, of Amarillo, N. H. Lassiter and Robt. Harrison, both of Ft. Worth, for appellant. Veale & Davidson, of Amarillo, for appellee.

      Por other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALL, J.

The following statement of the ease is adopted from appellant’s brief: “A. F. Linger brought suit against the Chicago, Rock Island & Gulf Railway Company in the justice court, precinct No. 2, Oldham county, Tex., on April 8, 1911, to recover damages on account of a cattle shipment from Vega, Tex!, to Kansas City, Mo., October 1, 1910, in the sum of $200. This is a companion suit to No. 367, This Company v. Scott [156 S. W. 294], pending in this court. The shipment being carried in the same train and surrounded by the same conditions as Scott’s shipment. For the sake of brevity, we will not set out the facts elaborately in this suit because they are practically identical with the facts set out in the brief already before the court in the Scott Case. In the present case the plaintiff recovered a judgment for the amount sued for, $200 and interest and on appeal to the county court recovered a judgment for the same amount, and the case was duly appealed to this court. As above stated, there is no substantial difference between the facts of the present case and those of the Scott Case, except that the plaintiff here had more cattle than Scott had.”

Appellant’s fifth assignment of error complains of the admission of the testimony of A. F. Linger set out in bill of exception No. 5, to the effect that he instructed the yardman at Caldwell with reference to feeding and watering his cattle. The objection ufged is that the testimony was irrelevant and immaterial, since under the contract the plaintiff was bound to look after the unloading, feeding, and watering of the cattle himself. As said by us in the companion case, the Chicago, Rock Island & Gulf Ry. Co. v. Scott, this stipulation in the contract is void under the Carmack Amendment, and we think, further, that it has been waived by appellant’s yardman undertaking to perform the duty imposed thereby upon appellee; and again no consideration was either pleaded or proved for such an undertaking on the part of appellee.

The thirteenth assignment of error complains of the sixth paragraph of the general charge to the jury upon the measure of damages and particularly upon this portion of said charge: “You will find for the plaintiff such damages as you may find to be the result of such injuries and depreciation, if any.” This paragraph of the charge is too broad, but by reason of appellant’s failure to ask a correct charge upon the measure of damages no complaint can be made in this court by reason of the error.

The fifteenth assignment of error is based upon the refusal of the court to give a peremptory charge to find in favor of defendant, and it is insisted under this assignment that because the evidence shows there was no negligent delay in the transportation of the cattle to market, and the whole cause of action is based on an allegation of such delay, the peremptory instructions should have been given. As said in the Scott Case, the evidence is sufficient to support the verdict upon the issue of negligent- delay. Appellant was required to unload, feed, and water and hold the cattle at Caldwell, Kan., for 5 hours, but it was not justified according to the evidence in this record in holding them for 15 hours. This issue of fact has been determined adversely to appellant by the jury, and in our opinion their finding is correct.

Appellant’s brief contains two assignments of error numbered 18. The first is the only one of the two entitled to be considered, and that raises the question as to whether the failure of appellee to give notice in writing of his damages to some general officer, claim agent, or station agent of appellant within 90 days bars his right of recovery. Reference to the pleadings in this case shows that appellant does not deny that notice was given under this term of the contract, and that the allegation with reference to it is as follows: “And, further specially answering in this behalf, this defendant shows to the court that the written contract under which the shipment in question was made and which contract is referred to in the next preceding paragraph herein contained the following provision and stipulation: ‘That, as a condition precedent to the bringing of any suit for damages for any loss or injury to the person or persons or property covered by this contract, the claimant shall give notice in writing of the claim for such damages to some general officer, claim agent, or station agent of the said first party, not later than ninety days after the date of the loss or injury claimed and a failure to strictly comply with this provision shall be a bar to recovery of any and all damages occasioned to the person or persons or property embraced in this contract.’ Defendant shows to the court that W. M. Whittington is the vice president of and general manager of this defendant, and that Henry Lucas is its auditor, both of whom reside in Ft. Worth, Tex., and that H. E. Allen was its-division superintendent, residing at Amarillo, Tex., at the time said shipment was made and long afterwards, and that it had local agents at Vega, Adrian, Wildorado, Amarillo, and other stations along its line of railway, all of whom were known to plaintiff, or could have been known to him by the exercise of ordinary care, and that the written notice provided for in the said provision of said contract was reasonable, valid, and binding stipulations. Defendant shows that if any notice of any claim for damages on account of said shipment was ever given by plaintiff to any one that it was to the officers and agents of the Chicago, Rock Island & Pacific Railway, connecting carrier of this defendant, and not to any of its officers or agents; that the Chicago, Rock Island & Pacific Railway Company is a foreign corporation, chartered under the laws of the state of Illinois, and in the handling of the shipment referred to herein was not the agent of this defendant, and this defendant is not a partner of said Chicago, Rock Island & Pacific Railway Company, and is not bound by any notices given to or received -by it in reference to shipments, and is not bound by any notice given to it or its agents by the plaintiff herein, and this defendant here pleads said provision of said contract in bar of plaintiff’s right to recover herein.”

The effect of the Carmack Amendment (Act June 29, 1906, c. 35bl, § 7, 34 Stat. 595 [U. S. Comp. St. Supp. 1911, p. 1307]) is to abolish the stipulation for separate liability of connecting carriers of interstate freight, and to make any one carrier liable by action brought against it for the negligence of any or all of such carriers over which the shipment upon which the suit is based passed, and under the provisions of the act we think notice to either of the connecting carriers of loss or damage to the live stock in this case is notice to all. The purpose of a stipulation for notice has been to enable the carrier to investigate the claim and prepare its defense while‘'the circumstances attending the shipment are fresh in the memory of its employés, and while its employés are still with the company. It has not been shown by appellant in this ease that the claim was not fully investigated, or that prior to the institution of the suit it refused payment of the claim, because notice was not given within 90 • days. The record further discloses that, on the day after the cattle reached Kansas City plaintiff called on John Fox, whom he testified is the agent of the delivering carrier, and told him about the matter, and that Mr. Fox asked him to write him (Fox) when he got home. It is further shown that plaintiff cjid write Fox on October 22d, that he had 4y2 ears in' the shipment. This letter it seems also made complaint of injuries to other cattle, which plaintiff had undertaken to adjust with appellant company. No objection has been made by appellant to the form or contents of the notice, and we find that appellants have waived this provision of the contract.

The remaining assignments of error have not been prepared and briefed in accordance with the rules, and will therefore not be considered.

Finding no reversible error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    AMERICAN TYPE FOUNDER CO. v. FIRST NAT. BANK OF TEAGUE.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 22, 1913.
    On Motion for Rehearing, April 9, 1913.)
    1. Chattel Mortgages (§ 150) — Recordation — Notice.
    Under Rev. St. 1895, art. 3328, declaring that every chattel mortgage not forthwith recorded shall be void as to any subsequent purchaser, the record of a chattel mortgage as required by law is constructive' notice to all parties subsequently dealing with the property.
    [Ed. Note. — For ..other cases, see Chattel Mortgages, Cent. Dig. •§§ 246-252; Dec. Dig. § 150.].
    On Motion for Rehearing.
    2. Chattel Mortgages (§ 241) — Discharge —Payment of Debt.
    Where the buyer of personal property gives a chattel' mortgage for the purchase price, the giving of another mortgage to secure the identical debt, coupled with the execution of new notes and the cancellation of the old, does not discharge the original chattel mortgage, where the only consideration was an extension of time.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 503, 504; Dec. Dig. § 241.]
    3. Novation (§ 5) — Chattel Mortgage — Discharge.
    Where the nótes of the original debtor, secured by chattel mortgage, were marked paid and surrendered to a purchaser of the property on his giving his own notes and a new mortgage, with the intention on the part of the creditor to release the original debtor and look only to the buyer, the payment being intended to discharge the original, notes, there was a complete novation which discharged the first debt and the chattel mortgage given to secure it.
    [Ed. Note. — For other eases, see Novation, Cent. Dig. § 5; Dec. Dig. § 5.]
    4. Chattel Mortgages (§ 235) — Extin-guishment.
    A chattel mortgage being but an incident of the debt the payment of the debt for which it was given extinguishes the mortgage.
    [Ed.- Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 496-499, 507; Dec. Dig. § 235.]
    Appeal from District Court, Freestone County; H. B. Daviss, Judge.
    Action betwéen the American Type Founder Company and the First National Bank of Teague. From a judgment for the latter, the former appeals.
    Affirmed on rehearing.
    Baker, Botts, Parker & Garwood, of Houston, and W. E. Terrell, of Teague, for appellant.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Findings of Fact.

JENKINS, J.

On July 19, 1907, one L. O. Kirgin bought of appellant a complete outfit for a printing office, and in payment of the same executed his promissory notes, due from October 19, 1907, to January 19, 1909, respectively, and to secure said notes executed to appellant a mortgage on the property so purchased, particularly describing the same, which mortgage was duly recorded in Freestone county, where the property was situated, on July 31, 1907. A few months thereafter Kirgin sold said printing office outfit to T. B. Childs, who assumed the payment of said indebtedness, and did not pay any other consideration. On the 8th day of September, 1909, said Childs executed his note to the appellee, the First National Bank of Teague for $1,500, and to secure the same gave a mortgage on said property, which mortgage was filed in said Freestone county on September 9, 1909. On the 8th day of March, 1910, the Kirgin notes beihg due and unpaid, the said Childs, in consideration of an extension of time for the payment of same, executed to said Type Founder Company his three several notes for the sum of $423 each, due in one, two, and three years, and to secure the same executed to said Type Founder Company a mortgage on the same property, which was filed in said county on the 8th day of March, 1910. Thereupon appellant, the said Type Founder Company, delivered said Kirgin notes to said Childs, stamped “Paid.” There was no other consideration for the execution of the last notes mentioned, except the extension of time for the payment of the original debt evidenced by the Kirgin notes, and said debt has never been paid.

The issue in this case was as to the priority of said mortgages. The court below found in favor of appellee on said issue, and held that the mortgage given by said Childs to said bank was superior to thé other mortgages. The mortgage given by Kirgin was never released by appellant.

Opinion.

The record of a chattel mortgage, as required by law, is constructive notice to all parties: The giving of a second mortgage to secure the identical debt for which the first mortgage was given, the consideration therefor being merely the extension of time for the payment of said debt, does not amount to a payment of said debt, and does not release the property from the mortgage lien. The release of the original debtor Kirgin, by stamping the notes “Paid,” and surrendering them in lieu of new notes taken for the same debt, did not operate as an extinguishment of said debt, nor a cancellation of the mortgage lien given by Kirgin. Article 3328, R. S. 1895; Willis v. Sanger, 15 Tex. Civ. App. 655, 40 S. W. 233; Bank of Springfield v. Bank of Commerce, 139 S. W. 665; Ross v. Commission Co., 18 Tex. Civ. App. 698, 46 S. W. 398.

Por the reasons above given, the judgment of the trial court herein is reversed and here rendered for appellant.

Reversed and rendered.

On Motion for Rehearing.

Appellee in its motion for rehearing concedes the correctness of the proposition of law announced in our opinion herein that the execution of a new note and mortgage, if intended to secure or merely to extend the time of the payment of the original debt, will not amount to the payment of the debt nor to a release of the former mortgage; and further concedes that, where the transaction is between the same parties, it will be presumed as a matter of law, in the absence of evidence, to the contrary, that such new note and mortgage were not intended as a payment of the debt. '

Appellee advances a counter proposition which is also sound, that, where it is made to appear that the new note and mortgage was in fact intended by the parties as payment of the original debt, such new note and mortgage will amount to a novation, and the new mortgage will take effect only from the time of its execution. Appellee contends, with reason, that where, as in this case, the notes of the original debtor are marked paid and surrendered with the intention on the part of the creditor to release the original debtor and look only to the substituted debtor, this affords strong evidence of novation.

This case was tried before the court who filed findings of fact. These findings were not incorporated in the original record, but by certiorari were made part of the record herein. Said findings of fact not being in the original record, we overlooked the fact to which our attention has been called, that the court expressly found: “That the notes and mortgage of Tilden O. Childs were not executed and delivered in lieu of nor in renewal or extension of the notes and mortgage of L. C. Kirgen.” If such is the fact, the judgment of the trial court was correct. There is some evidence in the record, in addition to the fact that the Kirgen notes were marked paid and were surrendered and the notes of another party, to wit, Childs, were taken, to indicate that such transaction was intended by the parties as payment of the Kirgen debt. The mortgage being but an incident of the debt, of course, if the debt was paid, the mortgage was extinguished.

As the court made a special finding on this issue, and as we cannot say that finding is unsupported by the evidence, the motion for a rehearing is granted, the judgment of this court reversing and rendering judgment for appellant is set aside, and the judgment of the trial court affirmed.


text:
    THOMSON et al. v. FINDLATER HARDWARE CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    April 9, 1913.)
    1. GARNISHMENT (§ 70) — JURISDICTION.
    The county court has jurisdiction of a garnishment against the maker of a note retaining a vendor’s lien instituted by a judgment creditor of the payee of the note.
    [Ed. Note. — For other cases, see Garnishment, Dee. Dig. § 70.]
    2. Garnishment (§ 96) — Jurisdiction.
    A writ of garnishment is properly returned to the court rendering the judgment on which the writ is issued.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 189-195; Dec. Dig. § 96.]
    3. Pledges (§ 21) — Assignment oe Note as Collateral — Rights oe Parties — “Payee.”
    An assignment by the payee of a note as collateral for the payment of debts less than the amount of the note makes the assignee the owner thereof to the extent of the debts, but the payee is the equitable owner to the amount of the excess; the word “payee” meaning the person to whom the note shall be paid.
    [Ed. Note. — For other cases, see Pledges, Cent. Dig. § 45; Dee. Dig. § 21; Bills and Notes, Cent. Dig. § 494.
    For other definitions, see Words and Phrases, vol. 6, p. 5247.]
    4. Pledges (§ 46) — Assignment of Note as Collateral — Collection oe Note by As-signee-Liability.
    An assignee of a note as collateral for a debt less than the amount of the note is on his collection of the note a trustee for the payee of the excess.
    [Ed. Note. — For other cases, see Pledges, Cent Dig. §§ 109, 110; Dea Dig. § 46.]
    5. Attorney and Client (§ 182) — Lien oe Attorney.
    Where an assignee of a note as collateral for a debt less than the amount thereof collected the full amount of the note, he could appropriate the excess in satisfaction of his lien as an attorney for professional services rendered.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 315, 399-406; Dec. Dig. § 182.]
    6. Attorney and Client (§ 182) — Liens.
    At common law an attorney has a lien for the amount due him for professional services on all papers and money belonging to his client coming into his possession, but his lien on the papers is only passive, and cannot be enforced, and he may only retain them until his claim is paid.
    [Ed. Note. — For other cases, see Attorney and Client, Cent Dig. §§ 315, 399-406; Dec. Dig. § 182.]
    7. Attorney and Client (§ 182) — Liens.
    An attorney, though having a lien on money collected by him for his client for services rendered, has no lien for the debt in the hands of the debtor before the money has been collected.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 315, 399-406; Dec. Dig. § 182.]
    8. Garnishment (§ 41) — Maker oe Negotiable Note — Liability as Garnishee.
    A garnishee is not liable on a negotiable note before its maturity, and his voluntary payment thereof into court in answer to a garnishment does not defeat the claim of the holder thereof, but he is liable to the garnishor on the note after maturity, where the debtor against whom the garnishment is obtained is the owner of the note, and this is true whether the writ- was issued before maturity where the auswer of the garnishee is filed after maturity.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 78-81; Dec. Dig. § 41.]
    1). Garnishment (§ 114) — Maker op Note as Garnishee — Rights op Parties.
    Where a judgment creditor of the payee of a note assigned to a third person as collateral for a sum less than the amount of the note garnished the maker, he obtained a lien on the debt evidenced by the note for an amount in excess of the debt for which it was assigned as collateral, and the third person in possession of the note and entitled to an attorney’s lien to the extent of the payee’s interest had no lien on the money paid thereon, but the maker must pay the same to the garnishor.
    LEd. Note. — For other cases, see Garnishment, Cent. Dig. § 233; Dec. Dig. § 114; Banks and Banking, Cent. Dig. § 328.]
    Appeal from Tom Green County Court; Oscar Frink, Judge.
    Garnishment proceedings by the Findlater Hardware Company, a judgment creditor of Hugh Jackson, against George Allen, in which J. T. Thomson intervenes. From a judgment for plaintiff in garnishment, J. T. Thomson and another appeal.
    Affirmed.
    J. T. Thomson and I. J. Curtsinger, both of San Angelo, for appellants. Thomas & McCarty, of San Angelo, for appellees.

      For other casts see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For otner cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Findings of Fact.

JENKINS, J.

On March 23, 1909, 'appellee Geo. Allen purchased from O. B. Sampson certain real estate, and executed to said Sampson, in part payment, his promissory note for $300, due three years after date; a vendor’s lien being reserved to secure the payment of said note. On April 20, 1909, said Sampson indorsed said note without recourse to S. K. P. Jackson, the father of appellant Hugh Jackson. Hugh Jackson was in fact the owner of an undivided interest in said note. On January 6, 1912, Hugh Jackson indorsed said note in blank, and delivered same to appellant Thomson, with the express agreement that Thomson should hold the same as collateral security for a note of $50, which said Hugh Jackson owed to said Thomson; and with the further agreement that said Thomson should collect said note, and out of the proceeds of same pay one F. T. Scott the sum of $33 owing by said Jackson to said Scott. Prior to the delivery of said note to Thomson, $110 had been paid thereon, and applied on Hugh Jackson’s interest therein. At the time of the delivery of said note to Thomson, Hugh Jackson was indebted to Thomson for various legal services during the past two years, the amount of which he did not know, and he expected that Thomson, when he collected said note, would pay himself out of the proceeds of the same the amount so due him for' such services, though nothing was said in reference to this. The legal services theretofore rendered by said Thomson to said Jackson were of the reasonable value of $75. S. K. P. Jackson died during the year 1911, leaving as his heirs a surviving widow, a daughter, and his son Hugh Jackson. Said note was due March 23, 1912; the last day of grace being March 26, 1912. On that day appellees Findlater & Co., who had theretofore obtained a judgment in the county court of Tom Green county against Hugh Jackson for the sum of $317.17, sued out on said judgment, and had served on said Allen a writ of garnishment. On the 15th day of April, 1912, said Allen filed his answer in said garnishment proceedings, and thereafter, on- July 13, 1912, filed an amended answer, in which he admitted the execution of said note to said O. B. Sampson, and alleged the transfer of said note by said Sampson to S. K. P. Jackson, and the indorsement of said note by Hugh Jackson to appellant Thomson, alleging upon information and belief that said Hugh Jackson was the owner of a one-half interest in said note, and alleging the payment of $110 thereon; the death of said S. K. P. Jackson; the names of his heirs; the transfer by the heirs of said S. K. P. Jackson on April 16, 1912, of their interest in said note to said Thomson; also the transfer by indorsement in blank of said note to said Thomson; also alleging his willingness to pay the balance due on said note to whomsoever it might be due, and praying that said Hugh Jackson and said Thomson be made parties to this proceeding, and said Allen tendered into court the full amount due on said note. We should have stated that said Allen excepted to the jurisdiction of the county court on the ground that the note in question was a vendor’s lien note, and that a lien was retained in the deed to secure the payment of the same.

Appellant Thomson intervened in said suit, claiming that he was the legal and equitable owner of said note by reason of the facts hereinbefore stated, and that he had a lien on said note to secure the payment of the amount due him for attorney’s fees, as here-inbefore stated. He also excepted to the jurisdiction of the court, and protested against the payment of said money into court by said Allen, and denied the power of said court to make application of the funds so paid into court. Appellees Findlater & Co. contested the answer of said Allen and the claim of said Thomson for said $75 for legal services, alleging that said Thomson had no lien on the debt evidenced by said note for such services.

Upon trial of the case before the court judgment was rendered that one-half of the amount of the note, principal, and interest transferred by the heirs of S. K. P. Jackson, less the interest inherited by Hugh Jackson, be paid over to appellant Thomson, and also that he be paid the sum of $50 for which said note was held as collateral, and the sum of $33 due said Scott, and that the balance, principal, and interest of said note, amounting to the sum of $33.36, be paid to Eindlater Hardware Company, plaintiff in said garnishment proceedings.

Opinion.

1. As this was not a suit to foreclose the vendor’s lien retained in said note, the ob: jection to the jurisdiction of the court by reason of the vendor’s lien being so retained was not well taken.

2. The judgment upon which the writ of garnishment was issued having been obtained in the county court of Tom Green county, said writ was properly returned to 'said court. Simmang v. Ins. Co., 102 Tex. 39, 112 S. W. 1045, 132 Am. St. Rep. 846.

3. The assignment of the note to Thomson as collateral for the $50 note owing to him by Hugh Jackson, and for the payment of the $33 due by Jackson to Scott, was in the due course of trade, and to that extent Thomson was the owner of said note. Liddell v. Crain, 53 Tex. 555; Kauffman v. Robey, 60 Tex. 316, 48 Am. Rep. 264; Marx v. Dreyfus, 26 S. W. 232; Jackson v. Fawlks (Sup.) 20 S. W. 136.

4. But, where a note has been transferred as collateral security for a debt less than the amount of said note, the payee is still the equitable owner of said note to the amount of the excess over the debt for which the note had been transferred as collateral. Jackson v. Fawlks, supra; Stock Co. v. B. & T. Co., 111 S. W. 420; Huyler v. Dahoney, 48 Tex. 240.

5. By payee is meant the person to whom the debt should be paid. Seastrunk v. P. S. & L. Co., 34 S. W. 466.

6. Had Thomson collected the full amount of the note, he would have received the excess over said $50 and $33 as trustee for Hugh Jackson. Wright v. Hardie, 88 Tex. 657, 32 S. W. 885. But in such case, by virtue of the fact that an attorney has a lien on the money of his client coming in his hands for all amounts due him for professional services, he might have appropriated such excess to the payment of such services, which in this case is shown to be $75.

7. The court having allowed Thomson out of the money paid into court on said sums of $50 and $33, as well as all of said money due to the heirs of S. K. P. Jackson, other than said Hugh Jackson, and having disallowed Thomson’s claim for said $75, due him by Hugh Jackson, the only issue for us to decide is as to the action of the court in reference to . said $75. That is to say, did Thomson have a lien on said debt for the $75 due him by Hugh Jackson by virtue of said note having been placed in his hands for collection?

8. In many of the states attorney’s liens are regulated by statute; but, as we have no statute in this state on this subject, we must look to the common law for authority on this issue. At common law an attorney has a lien for the amount due him .for professional services on all papers and money belonging to his client coming into his possession. An attorney’s lien on the papers of his client is, however, only a passive lien, and cannot be actively enforced. That is to say, he cannot sell said papers under process to foreclose his lien, as may a pledgee or mortgagee in other cases, but his lien extends only to the right to retain such papers until his debt is paid. Casey v. March, 30 Tex. 181; 4 Cyc. 1005, and 1023; 3 Am. & Eng. Ency. Law, pp. 454, 464; Jones on Liens, § 132.

9. While an attorney has a lien on money collected by him for his client-, he has no such lien for the debt in the hands of the debtor before such money has been collected. Able v. Lee, 6 Tex. 431; Randolph v. Randolph, 34 Tex. 185; Casey v. March, supra; Sexton v. Pike, 13 Ark. 193; McDonald v. Napier, 14 Ga. 89; Tillman v. Reynolds, 48 Ala. 365; Jones on Liens, supra; Hargett v. McCadden, 107 Ga. 773, 33 S. E. 666.

10. While the garnishee is not liable on a negotiable promissory note before the same is due, and his voluntary payment of said note into court in answer to a writ of garnishment would not defeat the claim of the holder of such note, he is liable to the garnishor on such note after maturity, if it be shown that the debtor, against whom such writ of garnishment is obtained is still the owner of such note, and it makes no dilV ference that the writ was issued before the maturity of such note where the answer of the garnishee is filed after maturity. Thompson v. Bank, 66 Tex. 156, 18 S. W. 350.

11. By virtue of the writ of garnishment served on Allen, the maker of the note in question, Findlater & Co. obtained a lien on the debt evidenced by said note to the extent of Hugh Jackson’s interest therein, which, as we have stated, was the amount due him, less the $83 belonging to Thomson by virtue of said note’s having been assigned to him as collateral security for that amount, and the court properly rendered judgment in favor of Findlater & Co. for such amount.

12. Thomson was shown to have still been in possession of said note at the time of the trial, and by virtue of such possession he had a lien on said note as to whatever interest his client, Hugh Jackson, had therein. But Jackson could have no interest in said note after the payment of same; and Findlater & Co. having secured a lien on Jackson’s remaining interest in said note by virtue of the service of the writ of garnishment on Allen, the payor in said note, Allen was legally bound to pay the same to Find-later & Co., and the payment of the amount due on said note into court for the benefit of the parties entitled to the same was, in law, the full payment of said note.

Finding no error in the record, the judgment of the trial court is. affirmed.

Affirmed.


text:
    ALLEN v. THOMSON.
    (Court of Civil Appeals of Texas. Austin.
    April 9, 1913.)
    1. Pleading (§ 214) — Demurrer — Admissions by Demurrer.
    A demurrer admits the truth of the allegations for the purposes of the demurrer.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-584; Dec. Dig. § 214.]
    2. Evidence (§ 43) — Judicial Notice — Judgment — Judicial Proceedings and Records.
    The Court of Appeals takes official cognizance of the facts shown by its own records in another case between the same parties.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 62-65; Dec. Dig. § 43 ; Appeal and Error, Cent. Dig. § 2960.)
    3. Appeal and Error (§ 1175) — Disposition —Reversal—Rendering Final Judgment.
    Where the court, without a plea in abatement setting up such facts, by official cognizance of the facts shown by its own records in another case between the same parties, knows that the undisputed facts in reference to the note sued upon herein showed that appellee is not entitled to judgment thereon, it may reverse and render judgment for the' appellant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573 — 4587; Dec. Dig. § 1175.]
    Appeal from District Court, Tom Green County; J. W. Timmins, Judge.
    Action by J. T. Thomson against George Allen. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    . Dubois & Loveland, of San Angelo, for appellant. J. T. Thomson, of San Angelo, pro se.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   JENKINS, J.

We have to-day handed down an opinion in the case of J. T. Thomson et al. v. Findlater Hardware Co., 156 S. W. 301, appealed from the county court of Tom Green county, to which reference is here made for a statement of facts necessary to an understanding of this case.

On November 25, 1912, appellee Thomson, who was appellant in the ease above referred to, brought suit in the district court of Tom Green county against Geo. Allen on the note mentioned in said case of Thomson v. Find-later to recover the amount for which said note was executed, less $110 credited on same, and interest and attorney’s fees, and to foreclose the vendor’s lien reserved in said note. Appellant admitted the execution of said note, and pleaded in abatement all of the facts stated in the opinion in said case of Thomson v. Findlater, including the judgment of the court therein, and the further fact that said Thomson had appealed said case to this court, and that said appeal was still pending. Appellee excepted to said plea in abatement; said exception was sustained by the court, and, said plea being stricken out, the court gave judgment for the amount alleged by appellee to be due on said note, and for foreclosure of the vendor’s lien.

We have affirmed the judgment of the county court in said case of Thomson v. Findlater, the legal effect of which is to hold that appellant has paid said note to the parties entitled to the same, and that said money is in the register of the county court of Tom Green county, subject to the order of said parties. Such being the case, it follows that the district court erred in sustaining appellee’s exception to said plea in abatement, for which this ease must be reversed.

The only thing about which we have had any hesitancy in this case is as to whether we ought to reverse and remand or reverse and render judgment herein. Where a case has been tried upon its merits and the facts fully developed, and there is no dispute as to the facts, of course, it is our duty, if the case is reversed by us, to render such judgment as the court below should have rendered. But, as this case went off on demurrer, no facts were proven. A demurrer admits the truth of the allegations for the purposes of the demurrer. But if the facts of said plea in abatement be admitted to be true, not only should said suit have been abated until said appeal was disposed of, but, upon said judgment of the county court being affirmed, the facts so pleaded in abatement would become a complete bar to recoyery herein.

We take official cognizance of the facts shown by the records of our court in another case between the same parties. Consequently we have official knowledge from the record in said case of Thomson v. Findlater that the undisputed facts in reference to the note herein sued on show that appellee is not entitled to judgment thereon. Should we remand this case, it would be with instructions to the trial court to enter judgment for appellant upon proof of the facts alleged in the plea in abatement. As these facts are undisputed, it seems to us that to remand this ease would involve useless expense and unnecessary delay, for which reason we have concluded to reverse and render judgment for appellant, which is accordingly done.

Reversed' and rendered.


author: McMÉANS, .1.

text:
    HOUSTON & T. C. R. CO. v. BRIGHT.
    (Court of Civil Appeals of Texas. Galveston.
    March 25, 1913.
    Rehearing Denied April 17, 1913.)
    1. Master and Servant (§§ 87, 228*) — Liability for Injuries — Statutory Provisions — Contributory Negligence.
    Employer’s Liability Act 1909 (Rev. Civ. St. 1911, art. 6648) § 1, providing that every corporation, receiver, or other person operating a railroad shall be liable in damages to any person suffering injury while “employed by such carrier operating such railroad,” applies to all employés of railroad companies, and not to those only who are actually engaged. in the operation of railway trains or cars, since the words “operating any railroad” apply to the word “carrier” and hot to the word “employed,” and hence in an action for injuries to an employé of a railroad company sustained while working on a railroad bridge the court properly charged as' provided in section 2 (Rev. Civ. St. 1911, art. 6649) that contributory negligence would merely reduce and not defeat a recovery.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 138, 670, 671; Dec. Dig. §§ 87, 228.]
    2. Master and Servant (§ 87*) — Constitutional Law (§ 245) — Liability eor Injuries — Statutory Provisions.
    Employer’s Liability Act 1909 (Rev. Civ. St. 1911, art. 6648) § 1, providing that every corporation, receiver, or other person operating a railroad shall be liable in damages to any person injured while “employed by such carrier operating such railroad,” construed to apply to all employés of railroad companies whether engaged in the operation of trains or cars or not, does not deny railroad companies the equal protection of the laws in violation of Const. U. S. Amend. 14.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 138; Dec. Dig. § 87;* Constitutional Law. Cent. Dig. § 702; Dee. Dig. § 245.]
    3. Commerce (§ 8) — Railroads—Statutory Provisions.
    Employer’s Liability Act 1909 (Rev. Civ. St. 1911, art. 6648 et seq.), making corporations, receivers, or other persons operating railroads liable to employés for injuries received through the negligence of the employer or its officers, agents, or servants, is not an invalid interference with interstate commerce, that being a subject relative to which the states may act until Congress has acted, but is inoperative in so far as it affects interstate commerce while the federal statute remains in force.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. § 8.]
    4. Appeal and Error (§ 1003*) — Review-Questions oe Fact.
    The Court of Civil Appeals cannot set aside a verdict which is against the great preponderance of the testimony unless the preponderance is such as to indicate prejudice, passion, or other improper motive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. $ 1003.]
    5. Release (§ 58) — Evidence — Questions eor Jury.
    In an action for personal injuries, where the evidence tended to show that defendant’s chief surgeon in charge of a hospital to which it customarily sent its injured employés told plaintiff, at a time that defendant’s claim agent was trying to effect a settlement, that his injuries consisted only of a common sprain and that he would be as well as ever and able to work in three weeks or a month, that this statement was not true, plaintiff’s injuries being serious and permanent, but that it was believed by plaintiff and induced him to make the settlement, and that defendant’s claim agent used such statement to procure a release of plaintiff’s claim, although he knew from information furnished him by another physician that plaintiff’s injuries were more serious than stated by the chief surgeon, it was a question for the jury whether plaintiff was bound by the release, even though the chief surgeon believed his statement was true, since if the claim agent used it to effect a settlement with knowledge that it was not true he was guilty of fraud. .
    [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.]
    Appeal from District Court, Harris County; Chas. E. Ashe, Judge.
    Action by W. W. Bright against the Houston & Texas. Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, Lane, Wolters & Storey, and Wm. A. Vinson, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for ap-pellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   McMÉANS, .1.

W. W.. Bright brought this suit against the Houston & Texas Central Railroad Company to recover damages for personal injuries sustained by him While in the defendant’s employment as a bridge worker. Liability was predicated upon the alleged negligence of defendant in failing to furnish to plaintiff a elawbar that was reasonably safe for use, and in furnishing one that was defective. The defendant answered by general denial, pleas of' assumed risk and contributory negligence, and further specially alleged that on July 13, 1909, prior to the institution of this suit, the plaintiff and the defendant agreed upon a full settlement of plaintiff’s cause of action, and the defendant thereupon paid to the plaintiff the sum of $195, which he received and accepted in full settlement, satisfaction, and discharge of his cause of action set forth in the petition, and of all damages sustained by him; that on said date the plaintiff, .by written instrument, released the defendant from all claims, demands, and causes of action which had accrued, or might thereafter accrue, and for all damages of whatsoever nature received in or resulting -from the accident alleged to have been sustained by him. By supplemental petition the plaintiff alleged that the contract of settlement was not binding upon him, for the reason that Dr. S. G. Red, the defendant’s physician, represented to the plaintiff, the day after he was hurt, and prior to the settlement, that the injury suffered by him consisted simply of a common sprain of his ankle, and that he would be as well as ever, and out at work in a month, and that his injuries were not as great as they really were; that the representation was false, the fact being that the plaintiff was seriously and permanently injured, of which fact said physician knew, and ought, in the exercise of ordinary care and skill, to have known, but of which the plaintiff was ignorant; that as an inducement to plaintiff to make the release, the defendant’s claim agent repeated to the plaintiff, in substance, the representations made by said physician, and the plaintiff, believing such representations to be true, and relying thereon', was thereby induced to make the settlement which otherwise he would not have made; that said claim agent and said physician were acting together, and the claim agent used the physician to deceive the plaintiff as to his condition, in order to make an advantageous settlement with him. The plaintiff tendered into court and offered to restore the consideration received by him for the release, or to have it deducted from his recovery. A trial before a jury resulted in a verdict and judgment for plaintiff for $2,-500. Defendant’s mo lion for a new trial having been overruled, it has appealed.

The court in its general charge instructed the jury on the issue of contributory negligence as follows: “Should you find that defendant was negligent towards plaintiff as before submitted, and that such negligence was a proximate cause of alleged injuries to him, but' should you believe from the evidence that plaintiff failed in some manner to exercise ordinary care, as before defined, for his own safety in failing to properly place or adjust the clawbar under the head or about the spike, or in otherwise handling said clawbar, and that he thereby contributed to alleged injuries of which he complains, then you will diminish the damages, if any, in proportion to the amount of negligence you find attributable to the plaintiff.” This charge is assailed by appellant’s first assignment-, its first proposition thereunder being as follows: “It appearing from the undisputed evidence that the appellee, at the time of his injury, was' not engaged in operating appellant’s railroad, it was affirmative error to instruct the jury that if they found the plaintiff eontributorlly negligent to diminish the damages in proportion to the amount of negligence attributable' to him, instead of returning a verdict, in such event, for the defendant.”

The evidence raised the issue of plaintiff’s contributory negligence sufficiently to require the submission of that issue to the jury.

As we understand appellant’s contention, it is that the benefits of what is commonly known as the Employer’s Liability Act, under which the suit was brought (General Laws 1909, p. 279; Rev. St. 1911, art. 6648), are intended only for those _ servants of a corporation, receiver, or other person, operating a railroad, who at the time of injury are engaged in the operation of the railroad, and that as the plaintiff at the time he was injured was working on a bridge, and not engaged in the operation of the railroad, the benefits of the statute did not extend to him. The statute, in so far as it affects the question under consideration, is as follows: “That every corporation, receiver, or other person operating any railroad in this state, shall be liable in damages to any person suffering injury while he is employed by such carrier operating such railroad.”

Appellant contends that the word “such” before “carrier” fully describes the persons amenable to the act, and that if the words “operating such railroad” also refer to the carrier, and not to the class of employes, that such words are a needless tautology, an idle repetition, and perform no office whatsoever in the act. In support of the contrary contention, appellee urges that there is not even a claim of ambiguity in the act, but of redundancy only, and that appellant’s is answered by a recent ruling of the Supreme Court of the United States in Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, where, in considering the scope of the Federal Safety Appliance Act, a similar point was denied. We are saved the labor of discussing the question of construction of the statute, raised by the proposition, as that statute has already been construed in this state, and adversely to appellant’s contention. In Railway Company v. Jenkins, 137 S. W. 711, the Dallas Court of Civil Appeals, having before it the precise question here raised, says: “The undisputed evidence is that appellee was a boiler maker helper to C. A. Oglesby, a boiler maker, both being in the employ of appellant, and that Oglesby was intrusted with authority to direct and superintend ap-pellee in the work they were doing. * * * Section 1 of said act, so far as need be quoted, reads: ‘That every corporation, receiver or other person operating any railroad in this state shall be liable-in damages to any person suffering injury while he is employed by such carrier operating such railroad.’ Appellant contends that this section of the act indicates that its provisions are applicable only to those employés of a railway company who are, when injured, actually engaged in the operation of a railway train or cars. We do not concur in this construction of the statute. The statute does not make the railway company liable only for an injury suffered by the employé while he is engaged in the work of operating its trains or cars, but also for an injury received in the discharge of the duties required of him while employed by such company. It is manifest, we think, that it was the intention of the Legislature to apply the words ‘operating any railroad’ to the word ‘carrier,’ and not, as seems to be the contention of appellant’s counsel, to the word ‘employed.’ Indeed, as the sentence is constructed, it does apply to the word ‘carrier,’ and can have reference to no other word therein.” A writ of error was denied by the Supreme Court in that case.

By the authority of this decision we must overrule the proposition under discussion.

By its second proposition under the first assignment appellant asserts that: “If it be held that the statute in question applies to all employSs of a railroad company, in whatever department of its service they may be engaged, then the act is in violation of the fourteenth amendment to the Constitution of the United States, in that it denies to railroad companies the equal protection of the law, and is therefore void.”

This precise question was also ruled upon in the ease of Railway Company v. Jenkins, above cited, and a similar contention to that here made was denied; the court saying: “The statutes referred to are not violative of the equal protection clause of the fourteenth amendment of the federal Constitution. ‘They are applicable to all persons of a particular class, affecting alike the em-ployés of all corporations or persons owning or operating a railroad, when brought under their influence under like circumstances and conditions.’ Railway v. Bailey, 53 Tex. Civ. App. 295, 115 S. W. 606; Railway v. Smith, 45 Tex. Civ. App. 128, 99 S. W. 743; Railway v. Grothe, 88 Tex. 262, 31 S. W. 198; Railway v. Richardson, 125 S. W. 624; Railway v. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921; Railway v. Turnipseed, Adm’r., 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. * * * That said act is not void as being in violation of the fourteenth amendment to the Constitution of the United States, but, like the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, U. S. Comp. St. Supp. 1909, p. 1171), abrogates the common-law doctrine of fellow servant as to employés of a corporation operating a railroad, is well settled by the decisions above cited, of the courts of this state, and of the Supreme Court of the United States.”

The point presented by the second proposition cannot be sustained.

By a third proposition under its first assignment of error appellant contends that “the act of the Legislature of the state of Texas, approved April 13, 1909, entitled ‘An act declaring corporations, receivers, or other persons operating railroads in this state, to be liable to employés for injuries received through the negligence of such employer, officer, agent or servant,’ etc., upon which the paragraph of the court’s charge complained of is based, is void, because in conflict with the commerce clause of the Constitution of the United States, and the Federal Employer’s Liability Act upon the same subject.”

The petition alleges, and the proof shows, that the plaintiff was injured while engaged in repairing a bridge on a spur track on defendant’s railroad,, and in the course of his employment as a bridge carpenter. There is nothing in the pleadings or proof to indicate that the’ plaintiff was engaged in interstate commerce, or that he was employed in such commerce; but the evidence shows that he was not so engaged.

We are of the opinion that the contention raised by the third proposition must be overruled, for that precise question has also been settled in this state adversely to defendant’s contention. In Freeman v. Swan, 143 S. W. 724, the El Paso Court of Civil Appeals, in disposing of a simildr contention, says: “Said state statutes regulating the relation of master and servant are applicable to those engaged in interstate commerce until Congress has acted. Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; M. P. Ry. v. Mackey, 127 U. S. 208, 8 Sup. Ct. 1161, 32 L. Ed. 107; Railway v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed. 109. The state statute, then even if we construe it as undertaking to cover cars in every service, interstate as well as intrastate, is unquestionably valid, as against this objection, until Congress has acted. When Congress does act, as it has done, the result is simply to limit the application of the state statute to cars in intrastate service.” A writ of error was refused by the Supreme Court in that case. M., K. & T. Ry. Co. v. Turner, 138 S. W. 1126, is to the same effect; it being there held: “If it should be conceded that the state statute should be construed as an attempt, to regulate interstate commerce, we do not think it should for that reason be held to be invalid, but think it should be held to be merely inoperative — in so far as it affects interstate commerce— while the federal statute remains in force. In the absence of a federal statute covering the subject, the state would clearly have power to Cover it by enactments of its own. For the subject is not one over which it can be said the power of Congress in exclusive, in the sense that the states are without power to act with reference to it, notwithstanding inaction with reference thereto on the part of Congress. Covington v. Kentucky, 154 U. S. 209, 14 Sup. Ct. 1087, 38 L. Ed. 962; 7 Cyc. 422. If the federal statute should be repealed and the state statute should not be, clearly on the repeal of the former the latter would become operative. Henderson v. Spofford, 59 N. Y. 131; 7 Cyc. 421; 17 A. & E. Enc. Law (2d Ed.) 55; 57, 59. That such a result would follow under the circumstances stated proves that the state is not without power to enact, though for the time being it is without power to enforce, such a statute.”

It follows, therefore, that the court properly followed the second section of the statute here assailed in submitting the issue of contributory negligence. The statute is as follows: “Sec. 2. That in all actions hereafter brought against any such common carrier by (or) railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to any employé, * * * the fact that the employé may have been guilty of contributory, negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé. * * * ”

Appellant’s first assignment of error is overruled, as is also the second assignment, which complains of the refusal of the court ■to give the jury its special charge instructing the jury, in effect, that if they found from the evidence that appellee was contributorily negligent to return a verdict for defendant. By its third assignment of error appellant contends that the court erred in not granting to it a new trial because the undisputed proof shows that plaintiff for a valuable consideration executed a release of all claims for damages which he had or which might thereafter accrue, growing out of the injuries sustained by him, and which damages he was seeking to recover in this suit. By its several propositions under this assignment appellant contends that the great preponderance of the evidence establishes the following facts: That after the happening' of the accident the plaintiff voluntarily, and with the same means of knowledge as those possessed by appellant, executed a release of all claims for'damages which he had, or which might thereafter accrue; that the defendant’s physician did not, prior to the settlement make any statement or representation to plaintiff as to the nature and extent of his injuries, but that if said physician did make any statement or representation to him in regard to the extent of his injuries, then the same was made in good faith, and constituted the honest medical opinion of said physician, and was not made for the purpose of inducing a settlement; that defendant’s claim agent, at the time of making said settlement with plaintiff, made no representation or statement to plaintiff as to the opinion of defendant’s surgeon as to the nature and extent of his ■injuries, but that if he did, said statements were made in good faith, in the honest belief that the same were true.

The evidence shows that the plaintiff’s feet were1 seriously and permanently injured by a fall from a bridge upon which he was at work. He was at once taken to a hospital or infirmary where the appellant customarily sent its injured employés, and his wounds dressed and bandaged by Dr. Record, the hospital surgeon. Dr. O. S. Red was then the chief surgeon -of appellant, and together with Dr. Stuart had control of the hospital or infirmary. About 1 o’clock on the next day .appellant’s claim agent, J. W. Given, went to the hospital and opened negotiations with plaintiff for a settlement of his claim against appellant for his injuries, offering him a month’s time, $65,. which plaintiff refused. Plaintiff declined at that time to make any settlement, stating that he did not know how badly he was injured and had not been advised in this regard by the physician in charge, and that all he wanted was' what was right, and he thought it would be right to let his time run on until the doctor said he was able-to go to work, when Given, according to plaintiff’s testimony, replied: “The doctor says there is nothing the matter with your feet, only just a common sprain. You will be all right in a' little while.” The claim agent then left, and returned about 5 o’clock that afternoon and resumed the talk of settlement, when plaintiff repeated what he had said at the previous meeting, to which Given replied: “We would rather make a settlement and bé done with it.” Plaintiff testified that just about this time Dr. Red came into the room and asked him how his feet were getting along; that this was Dr. Red’s first visit to him; that Dr. Red felt of his feet, but did not unwrap them; and that when he got through feeling of them “it felt, like he was going to pull them off, it hurt so bad, and I asked him, ‘Doctor, what do you think about it? * * * ’ and he says,-‘Nothing but a common sprain, no broken bones, or anything of the kind,’ and I says, ‘How long do you think it will take them to get well?’ and he says, ‘About three weeks, possibly a month,’ and X says, ‘Do you really think they will, Doctor?’ and he says, ‘Yes, I know they will be all right.’ He says, ‘You will be able to go to work in a month’s time, do anything you ever done,’ and then he walked on.” iPIaintiff further testified: That Given was present while Dr. Red was making these statements. That when Dr. Red went out, Given said, “Excuse me a moment, I want to speak to Dr. Red,” and that he went out staying about possibly five minutes, and returned; witness not knowing what was said between them. • That when Given returned he increased his offer from $65 at the first conversation to $175, which plaintiff refused, but then agreed to take $195, being three months’ time, thinking under the doctor’s statements that he would certainly be well by that time. That when Given came back, he reminded plaintiff of what the doctor had just said about his being well in a month, being the same statement he made at the first conversation as to what the doctor had said. That if he had not believed the statement to be true he would not have made the settlement, would not have signed the release. That when Dr. Red made said statements to him, the bandages were not off, but that Dr. Red after-wards, during the same week, saw the wounds with- the bandages off. The statements testified to as made by Dr. Red and Given were reiterated on cross-examination.

Charles E. Carr, who was present when Given first called, testified: “Mr. Given told him the doctor did not think his injuries would amount to very much, as well as I remember” — on cross-examination the witness saying: “I said Mr. -Given said the doctor said he did not think his injuries would amount-to very much; he didn’t say what doctor said that; he just said the doctor said that.”

Dr. Red testified that he had no recollection of Bright’s case, only he knew from his face he had seen him somewhere, but stated that from his habit he would not give an opinion of a man’s injury without an examination, and that if he gave an opinion at all it would he an honest opinion, and not a false one, for the purpose of effecting a settlement. On cross-examination he testified: “It is true that on many occasions my assistants have told me about this or that patient, and his injuries, many times; that is a fact, and of course I would assume they had diagnosed their injuries correctly, in many eases. If they (my assistants) reported to me the injury was not serious, I would assume their report was correct.” He testified that, while he had no recollection of Bright’s ease, “I go in and talk to the patients, of course; that is my business. I remember of talking to patients in the presence of Mr. Given; I have talked to people in Mr. Given’s presence. That has not frequently happened; it has happened.” That he had no recollection of Given notifying him in plaintiff’s case to be at the hospital at a certain time, “but I have a recollection in other cases he has notified me he wanted me to be there; he has done that.” Again: “As to whether I have ever, 'in Given’s presence, told a patient what his condition was if the patient asked me, or if Given would ask me — if I was there, it was to give Mr. Given an opinion as to what was the condition of the patient; that is the idea, that is exactly what I was there for.” That the employés were paying 50 cents a month for hospital service, but that he did not consider himself as much their doctor as the railroad company’s doctor, and that he was employed by the railroad for the purpose of treating their sick and injured; and had nothing to do with the fund paid hy the employés, and that it was optional with him whether he would give a man lying there in the hospital any advice ór information, but that he would always tell him, though optional with him to do so, if he thought the information would not be injurious to him. That he would not have given plaintiff an opinion on such superficial examination as merely taking hold of and feeling and pulling at bandaged anklés and feet. Finally: “The day after he was hurt I could not have represented to him that he would be all right in a month, when that representation was false; I couldn’t give a man an opinion on something I didn’t know; if I hadn’t examined him, I wouldn’t have an opinion.”

Given testified, in contradiction of plaintiff’s testimony as to the statements upon which the release was obtained, that on his way to plaintiff’s ward at the hospital, he talked with Dr. Record, and asked about plaintiff’s condition, saying: “Before I went to see Bright, I already knew from Dr. Record what he thought about Bright’s injuries. I did not talk to any other doctor about his injuries. I did not see any other doctor about his injuries. Dr. Record told me Bright had a badly sprained ankle, and possibly a fractured bone, but he could not tell. I do not recall that I told Bright when I was talking to him about a settlement what the doctor had told me.” This was, in effect, reiterated on cross-examination; the witness saying: “I knew the condition of his (Bright’s) leg from what Dr. Record told me; I knew what he thought.”

Dr. Record was not called as a witness.

The release relied upon to defeat a recovery by plaintiff was introduced in evidence by defendant, and is as follows: “In consideration of the sum of one hundred and ninety-five dollars ($195.00) to me this day paid by the Houston & Texas Central Railroad Company, I hereby release said company from all claims, demands and causes of action against it which have accrued, or may hereafter accrue, to for all damages of every nature whatsoever, received in, and resulting from, an accident at or near Houston, Texas, on or about July 12, 1909, in which W. W. Bright was injured by falling from White Oak Bayou bridge, upon which I was working in the capacity of bridge carpenter. Said sum is accepted by the undersigned in settlement for all damages, injuries and disabilities, which may hereafter result from said accident, as well as for those now known to have been caused thereby. It is expressly understood and agreed that said sum is paid and accepted not only for time and wages lost, expenses incurred, and property damaged and destroyed, but also in full and final settlement of all claims of every nature caused by said accident. To secure this settlement and the payment of said sum I hereby represent to said company that I am twenty-one years of age, and- that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries,' disabilities and damages, and that no representations or statements about ‘them, made by said company’s surgeons or agents, have influenced me in making, nor induced me to make, this settlement. No promise of employment nor other agreement not herein expressed has been made by said company, nor by any of its officers, agents or employés. Witness my hand at Houston, Texas, July IS, 1909. [Signed] W. W. Bright.” This release was acknowledged by plaintiff,, the usual form of acknowledgment of a deed followed to which is added “that he has read it (the release), fully understands its meaning . and effect, and" konws that it is an unconditional release In full, and that he voluntarily executed it as such.” The plaintiff’s signature to the release was witnessed by Fred D. Carstens and R. A. Hudson, and these attesting witnesses made affidavit at the time that the release was read aloud by the notary in their presence and hearing, and that plaintiff “stated to us that he fully understood its meaning and effect, knew that it was an unconditional release in full, and voluntarily executed it for tlie purposes and consideration therein expressed.” It was shown that the release was prepared by .defendant’s claim agent, Given.

That the injuries from which plaintiff was suffering at the time of the negotiations for a settlement were pending were not a common sprain, from which he could have recovered in from three weeks to a month, but that they were serious and permanent, is shown by the testimony of Dr. Gavin Hamilton. “This foot here — he has got practically no arch to his foot at all — you can see here, comes right down almost fiat on the table; this one also; and this foot, the right foot, has the lesser of that, has diverted some, it is not in a proper line with the leg, so when he bears weight on that, the tendency of that foot is to pull out like that every time he steps on it; it draws on the ligaments and stretches them; that results from the breaking down of the ligaments and the dislocation of the small bones in the foot; I refer to the tarsal bone; those ligaments are simply broken down and dislocated to the point you can see the declivity, can see the deformity in the foot, and destroys the arch of the foot so he cannot stand on his foot any length of time without producing pain, and carrying heavy weight, anything like that, lifting, would tend to make the injury worse; it disables him from doing manual labor where he would have to be on his feet all the time; and an injury of that kind is permanent; it is an injury that cannot be remedied; it is a serious injury, so far as his ability to work is concerned; it has nothing to do with his life, anything of that kind.” This court has no authority to set aside a verdict against the great preponderance of the testimony unless the preponderance is such as to indicate prejudice, passion, or other improper motive. As said by this court in Railway v. Rowell, 45 S. W. 766: “It may be that the preponderance of the evidence is against the verdict; but, if so, it is not such preponderance as would authorize us to set it aside. Appellate courts should not substitute their judgment upon the facts for that of the jury unless the verdict be without legal support, or is so manifestly against the evidence as to show unmistakable prejudice or sympathy.” To the same effect are Railway v. Holland, 27 Tex. Civ. App. 397, 66 S. W. 68, and Railway v. Lee, 69 Tex. 560, 7 S. W. 324. In the case last cited our Supreme Court says: “It is not necessary for us to say what our conclusion would be as to the facts if called to pass upon them in the first instance. Where there is not sufficient evidence to sustain a verdict, this court will reverse the judgment; but, if there be sufficient evidence, it cannot interfere merely because we think the weight of the affirming testimony is against it.” The rule being as above stated, it is only necessary for this court to examine the record to ascertain whether the evidence was sufficient to sustain the verdict upon the issue raised, and, if sufficient, the verdict should be upheld, notwithstanding we might have reached a different conclusion had we been called to pass upon the facts in the first instance.

The jury had the right to conclude from the testimony of the plaintiff that Dr. Red, appellant’s chief surgeon, represented to plaintiff, at a time that Given, the claim agent, was present and trying to effect a settlement with him, that plaintiff’s injuries consisted of only a common sprain, and that he would be as well as ever and could do any work he had ever done in three weeks or a month, and that this statement was not true, because the injuries were serious and permanent, but the statement was believed by plaintiff to be true and he was induced thereby to make the settlement, which he otherwise would not have made. It may be conceded without in the least changing the result, that Dr. Red, if he made the statement, believed his diagnosis and prognosis were correct, but if he made the statement at all he did so after such a superficial examination as to not lead to a discovery of the real injury. It was after this statement was made to plaintiff and after the claim agent had retired from the room to consult further with Dr. Red, and had returned, that the plaintiff agreed to the settlement and signed the release offered in evidence. When Given returned to plaintiff, he repeated what Dr. Red had said, although at that time he knew from the statement of Dr. Record, the hospital physician, as he himself testified, that plaintiff had “a badly sprained ankle and possibly a fractured bone.” When Given, both before and after the visit of Dr. Red, knew that the statement made by Dr. Red, as testified by plaintiff, was not in fact true, he having been apprised by Dr. Record that the injuries were serious, yet nevertheless used Dr. Red’s statement as a means of deception to procure by the release an advantageous settlement in favor of the defendant, he practiced a fraud upon plaintiff which tainted the transaction and rendered the contract of settlement void. Railway v. Huyett, 49 Tex. Civ. App. 395, 108 S. W. 502; 20 Cyc. 31, 32.

The case of El Paso & Southwestern Co. v. Kramer, 141 S. W. 122, relied upon by appel-lent, is not in conflict with the opinion here expressed. In that case the court expressly held that the evidence showed that the statements made by the defendant’s physician to Kramer upon which he relied in making settlement were not tainted with fraud, not made for the purpose of inducing a settlement, but were medical opinions delivered in good faith. That ease, upon the reasoning of the court, in fact upholds the conclusions we have here reached.

The record disclosing no reversible error, the judgment of thé court below must be affirmed.

Affirmed.


author: CONNER, C. J.

text:
    EMERY et al. v. BARFIELD et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 8, 1913.
    Rehearing Denied April 4, 1913.)
    1. Appeal and Error (§ 1165) — Conclusions or Fact and Law — Duty to File-Effect ob Failure.
    The failure of the trial judge to file findings of fact and conclusions of law within ten days after the adjournment of the term, as required by Rev. Civ. St. 1911, art. 2075, necessitates a reversal unless there is a statement of facts in the record from which it appears that appellant could not reasonably have been prejudiced by the failure.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4522; Dec. Dig. § 1165.]
    2. Appeal and Error (§ 527) — Record — Findings and Conclusions — Time to File.
    The. attempt of the trial judge to file findings of fact and conclusions of law after the time prescribed by Rev. Civ. St. 1911, art. 2075, does not make the findings and conclusions a part of the record on áppeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2381-2383; Dec. Dig. § 527.]
    3. Husband and Wipe (§ 262) — Property— Burden op Proob.
    The rule that the burden of proof is on him who asserts the separate character of property does not apply where defendant denies the allegations of plaintiff who asserts the community character of the property, and plaintiff has the burden of proving the community character.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. § 262.].
    4. Husband and Wife (§ 119) — Conveyances — Validity.
    A conveyance by a husband to his wife vests the separate estate in her as between the parties .and their heirs, and this' is true whether the conveyance so limits the estate or not.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. § 119.]
    5. Husband and Wife (§ 131) — Conveyances — Separate Estate — Evidence.
    Proof that a husband caused k conveyance to he taken in his wife’s name tends to show that it was the intention of the parties that the property should be her separate property, and this is true whether the consideration was paid from her separate property or from the community.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 426, 471-483; Dec. Dig. § 131.]
    6. Fraudulent Conveyances (§ 174) — Validity — Parties Entitled to Attack.
    A deed fraudulent as to creditors of the grantor is binding on him and his heirs.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 530, 531, 533-536, 542; Dee. Dig. § 174.]
    7. Appeal and Error (§ 1165) — Findings of Fact and Conclusions of Law — Failure to File — Effect.
    Where, in a suit by children to recover an undivided community interest of their deceased father in real estate, the children had the burden of proving the community character of the property on various issues, the failure of the court to file findings of fact necessitated a reversal of a judgment for the children for the failure notwithstanding a statement of facts probably prevented defendant from making a proper presentation of the case to the appellate court within court rule 62a (149 S. W. x).
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4522; Dec. Dig. § 1165.]
    Conner, C. J;, dissenting.
    Appeal from District Court, Taylor County; T. L. Blanton', Judge.
    Action by F. H. Barfield and others against S. E. Emery and another. From a judgment for plaintiffs, defendants, appeal.
    Reversed and remanded.
    Ben L. Cox and Eugene De Bogory, both of Abilene, for appellants. J. M. Wagstaff, of Abilene, for appellees.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

For the second time appellants present to this court for revision an adverse judgment in a suit against them by appellees F. H. Barfield and others, who are the children and children-in-law of Susan Sullivan and J. M. Sullivan, deceased, to recover the alleged undivided community interest of their father, J. M. Sullivan, in a part of the Samuel Andrews survey situated in Jones county. See 138 S. W. 419. On the former appeal the judgment was reversed because of an erroneous charge. The issue upon which the case turns is whether at the date of the death of J. M. Sullivan the land in controversy was community property or the separate property of Susan Sullivan, the surviving wife under whom appellants claim. The trial now presented for review was before the court without a jury, and the plaintiffs again secured a. judgment in their favor, from which this appeal is prosecuted.

The first question presented is one of practice. Within due time after the trial appellants filed their written motion under the statute requesting the court to file his findings of fact and conclusions of law, and this motion was called to the court’s attention in due time and order. The court failed to file his conclusions within ten days after- the adjournment of the term, as required by article 2075, Revised Statutes 1911, although he did do so later, which, however,. have not been brought up in the record. The court in his explanation to the bill of exceptions presenting the matter undertakes to excuse his failure on the ground that he and his home were quarantined by duly constituted health officers during the period necessary for the preparation of the conclusions, and this explanation is controverted by a number of affidavits of contrary import. We, however, are of opinion that the issue presented by the explanation and controverting affidavits must be disregarded as immaterial, for the effect of a failure to file such conclusions upon the rights of the losing party is necessarily the same whether the court’s failure be culpable or wholly blameless. The question then- is: Shall the judgment be reversed because of the failure of the court to file his conclusions of fact and law as requested? The majority think it must be so ordered, while the writer entertains a contrary view. In explanation of the difference-of opinion among us, it should be stated that a statement of facts was duly made out and filed in the court below which was agreed to by all parties and approved by the court, and that therefrom, omitting transmutation of title not thought to be necessary to give, it in effect appears that the land involved in controversy became vested in J. M. Sullivan in 1882 as the community property of himself and wife, Susan Sullivan. It is undisputed that on the 17th day of September, 1891, one R. H. Parker instituted his suit,against J. M. Sullivan in a justice’s court upon a promissory note for $34.52; that on October 26, 1891, judgment was rendered for the plaintiff against the defendant J. M. Sullivan for the sum of $23.50, together with costs, and that execution issued upon such judgment on November 10, 1891, which was returned showing a levy upon a small- amount of cash in the hands of a constable; that an alias execution by virtue of said judgment was issued December 9, 1891, which at an hour not shown was levied upon land including that in controversy on December 10, 1891, by virtue of which levy the land in controversy was later sold to R. H. Parker for $25. The regularity of these proceedings is in no wise questioned. On the day of the levy of the alias execution, to wit, on December 10; 1891, at an hour not shown, J. M. Sullivan made a quitclaim deed to his wife, Susan Sullivan, conveying 1,150 acres of the Samuel Andrews survey (including the land in controversy) for a recited consideration of $10 paid and Susan Sullivan’s assumption of a mortgage indebtedness of $2,500. The evidence is silent as to whether this deed was executed before or after the Parker levy. It was not,recorded, however, until February 23, 1892, some time after the levy and return of the execution. Later, viz., on March 29, 1892, the said R. H. Parker executed a quitclaim deed to Susan Sullivan for a consideration of $75 paid, conveying 951 acres of the Samuel Andrews survey which included the land in controversy. J. M. Sullivan died intestate on September 7, 1892, and this suit was instituted on April 19, 1909.

There is further evidence showing later conveyances from Susan Sullivan to her son, S. E. Emery, one of the appellants herein, upon the consideration of caring for her during the remainder of her life, and from S. E. Emery conveying 100 acres to the appellant W. L. Grogan; but, as the particulars relating to these conveyances are not deemed pertinent to the present inquiry they need not be further noticed.

Susan Sullivan at the time of the trial was about 88 years of age, and the only substantial controversy in the evidence is whether the $75- paid to R. H. Parker for his conveyance on March 29, 1892, was of the separate estate of Susan Sullivan. On the last trial she testified on this subject: “I gave him (J. M. Sullivan) the money to redeem the land. I gave him 85 or 87 dollars, somewhere. The money that I gave him at that time I got from my father, Samuel Andrews. * * * I have got some of that original money now that I got from my father’s estate. It is gold. I have got a right smart of it now. I came from Karnes county up here on the Clear Fork. My father did not live in Karnes county. He lived in De Witt county. There is where he died. My recollection is that it must have been something like three or four years before my husband’s death that I gave him that 85 or 87 dollars. He came to town right straight the day I gave him the money. I guess he came. He said he did. That $85 was a part of the original money that I got from my father’s estate.” The plaintiffs however, introduced Susan Sullivan’s testimony upon a former trial, which on the same subject is as-follows: “The money I let Mr. Sullivan have was to redeem the property from taxes. I thought I told you when that was. I could not say positively when that was. I do not know anything about anybody going there and selling the land. I never saw anybody come in there and sell the land that I know of. Nobody ever told me that the sheriff sold the land. It never was that I know of. I have no recollection of it. I gave him that money, of course, to recover the land. I got that money from my father. It came from my father. I had stock and I had money. I always have money and I always did have it. I had stock and horses, of course, wasn’t that something coming to me? I had the money and I always had it, I told you. That came off of the place- there and I had money besides. Just so I had it, that is sufficient. It came from the increase of the stock my father gave me.” There -was also testimony by the children plaintiffs to the effect that, if their mother had on hand at the time of the sale of the land to Parker any original, money received from her father, they had no knowledge of it, and that continuously for a number of years after their father’s death their mother, Susan Sullivan, frequently referred to and acknowledged their interest in the land in controversy. This, however, was denied by Mrs. Sullivan. The foregoing presents all of the evidence deemed necessary to present, and substantially all relating to, the question under consideration, unless perhaps reference should be made to the fact that there was some testimony tending to show that J. M. Sullivan had become insolvent before the date of the Parker judgment.

Under this state of facts, as before stated, the majority think the judgment must be reversed; their viéw being presented in the language of Mr. Justice SPEER as follows:

“It is conceded, as indeed it must be under the authorities, that an error has been committed by the trial judge which ordinarily would require a reversal of the judgment. We refer to the failure of the trial judge to file his findings of fact after having been duly requested to do so by the appellants.

“The fact that ‘after ten days have elapsed from the adjournment of the court the power of the trial judge to file conclusions of fact and law ceases’ (Wandry v. Williams [Sup.] 124 S. W. 85), and the attempt of the trial judge to file such conclusions after that time did not constitute that paper ány part of the record on this appeal, and the failure of appellant to incorporate the same into the transcript is to be commended rather than criticised. It would have been stricken out on motion. See Bradford v. Knowles, 11 Tex. Civ. App. 572, 33 S. W. 149. We approve the rule as quoted from Mr. Justice Reese of the First district to the effect that the error in this case should work a reversal ‘unless there is a statement of facts in the record from which it appears that the party appealing could not reasonably have been prejudiced by such failure and refusal.’ There is a statement of facts in the record, but it is impossible to say that from the evidence the trial judge was forced to find in a way to support the judgment rendered by him in this ease.

“If the statement that the single issue presented was whether the land involved in controversy was at the date of the death of j. M. Sullivan the separate property of Susan Sullivan or the community property of J. M. Sullivan and his wife be accepted as correct, nevertheless, in determining whether or not the error is reversible and probably injuriously affected the appellant, it must be borne in mind that the burden of proof on the whole case was on appellees to prove that the property was the community property of J. M. Sullivan and Susan Sullivan. The rule that the burden of proof is on him who asserts the separate character of property to prove it can have no possible application in this case for the reason that appellants are not making any such assertion in their pleadings. They are merely denying the allegations of the plaintiffs, who themselves by their action have asserted the community character of the property and on whom, therefore, the burden rests to prove it. A recognition of this universal rule of evidence necessarily will result in a reversal of the case.

“Let it be conceded that the conveyance of the property by Sarah E. Barfield and Mrs. Murray to J. M. Sullivan in 1882 constituted the same the community property of the Sullivans, yet on December 10, 1891, J. M. Sullivan by his deed conveyed the property to his wife, Susan Sullivan, which conveyance, as held by us on the former appeal of this ease (Emery v. Barfield, 138 S. W. 419), ‘as between husband and wife and necessarily their heirs,’ had 1 ‘the effect of vesting a separate estate in the wife; and this, too, whether the instrument so limits the estate or not. The deed could have no other effect.’ The fact that on the same day the land was levied on by an execution creditor of J. M. Sullivan, and that ‘the evidence is silent as to whether this deed (from Sullivan to his wife) was executed before or after the Parker levy,’ is all the more reason why the cause should be reversed. The burden of proof being on appellees to show the community character of the property, it necessarily devolved upon them to show,-in order to overcome the conveyance from J. M. Sullivan to his wife, that at the time he executed it he had no title by reason of the prior levy of the Parker execution. Failing in this, the title passed by Sullivan’s deed to his wife and the defendants would be entitled' to a finding and judgment.

“Again, the evidence shows that after the execution sale to Parker he reconveyed the property to Susan Sullivan, and it is admitted that there is a substantial controversy in the evidence as to whether the consideration for this reconveyance was paid from the separate estate of Susan Sullivan. Mrs. Sullivan testified that it was. She also testified in addition that it was not true that she and her husband, after he executed the deed to her, considered the land as community property, nor was it true that she and her children had treated and considered it as community property after J. M. Sullivan’s death. This testimony, in • connection with evidence tending to show that J. M. Sullivan caused the conveyance to be taken in his wife’s name, even though the instrument did not convey to her separate use, tended to show that it was the intention of the parties that the property should be the separate property of Mrs. Sullivan, and this would be the tendency whether the consideration was paid from Mrs. Sullivan’s separate-property or from the community. Story v. Marshall, 24 Tex. 306, 76 Am. Dec. 106; Peters v. Clements, 46 Tex. 114; Tison v. Gass, 46 Tex. Civ. App. 163, 1Ó2 S. W. 751. Upon this last question also the burden of proof was upon appellees to show the community character of the property.

“It avails appellees nothing if the deed from J. M. Sullivan to his wife was fraudulent as to the creditor Parker or any others for several reasons: First, they have not attacked this deed for fraud; second, they are not claiming under it; and, third, claiming as heirs necessarily they are in no better position than their ancestor, and clearly he could not assert the invalidity of the conveyance. It was binding on him and necessarily on his heirs.

“So that it is impossible to say the failure of the trial court to make his findings of fact has not ‘probably prevented the appellant from making a proper presentation of the case to the appellate court.’ Rule 62a (149 S. W. x). The majority, therefore, think the judgment should be reversed and the cause remanded for another trial.”

Prom the view so presented the writer respectfully dissents. Several of the decisions indicate that in no ease where there is a full statement of facts will the judgment be reversed merely because of the failure of the trial judge to file his conclusions of fact and law as requested. See Sullivan v. Fant, 51 Tex. Civ., App. 6, 110 S. W. 521, in which writ of error was refused (114 S. W. xiii); Haywood v. Scarborough, 102 S. W. 470; City Nat. Bank of F. W. v. Stout, 61 Tex. 567. In other cases the rule is not stated so broadly. In Huffman Imp. Co. v. Templeton, 14 S. W. 1015, there was a failure of the trial judge to file his conclusions of fact and law, demand therefor having been made in due time, and the court said: “It is not always that the failure of the judge to perform this duty will be ground for reversing the judgment, and we do not think it constitutes ground for reversal in this instance. There is a full statement of facts in the record and it does not appear that appellant has been injured or could be injured by reason of the nonperformance of such duty by the judge.” To the same effect is the decision in the ease of Crocker v. Crocker, 19 Tex. Civ. App. 296, 46 S. W. 870, and Umscheid v. Scholz, 84 Tex. 265, 16 S. W. 1065, and Sutherland v. Kirkland, 134 S. W. 851. A still later case, viz., Shepherd & Davenport v. McEvoy, 144 S. W. 285, is to the same effect, though .perhaps apparently placing the burden upon the appellee to show that the failure of the trial judge to file his conclusions was without prejudice. Amended rule 62a by our Supreme Court, published since the opinion last .cited (149 S. W. x) provides, among other things, that: “No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court,” etc. It is also expressly declared by a statute having direct reference to Courts of Civil Appeals, that there shall be “no reversal on appeal or writ of error *. * * for want of form, providing sufficient matter or substance be contained in the record to enable the court to decide the cause upon its merits.” It seems ■perfectly clear to the mind of the writer that the trend of all of these decisions and provisions, as well as of modem thought, is undoubtedly against reversals where it is plainly apparent that the error complained of could have been of no material injury to the complaining party. The writer has been unable to see, after most careful consideration, in what respects the failure of the trial judge now complained of has in any way prevented appellants from a proper presentation of their case here or in any other way operated to their prejudice. As stated, we have before us a complete statement of facts. It is duly certified by the official reporter of the district to be “a full, • true and correct transcript of all the testimony which was admitted in evidence by the court upon the trial of the case.” It is so agreed to by counsel for both appellants and appellees and so duly approved by the trial court. And in appellants’ brief relating to the merits, error is assigned to the judgment of the court as “wholly contrary to the law and the evidence and not supported hy law or evidence” upon the grounds: First, that “Susan Sullivan acquired the land in controversy b'y inheritance from her father which constituted it her separate property, and that she acquired whatever interest J. M. Sullivan might have had in said lands by deed of said J. M. Sullivan dated December 10, 1891, * * * which constituted said lands the separate .property of the said Susan Sullivan, and plaintiffs, being heirs of J. M. Sullivan, deceased, are not entitled to recover any of said lands by inheritance from said J. M. Sullivan.” Second, “that the deed from R. H. Parker to defendant Susan Sullivan dated March 29, 1892, made and delivered by said Parker to said Susan Sullivan under the direction of her husband, J. M. Sullivan, now deceased, was a gift from said J. M. Sullivan to his wife, Susan Sullivan, of whatever interest J. M. Sullivan had in said lands and constituted said lands the separate property of the said Susan Sullivan as against plaintiffs who are heirs of the said J. M. Sullivan.”

To these contentions it is in substance replied that neither the deed of December 10, 1891, nor of March 29, 1892, to Mrs. Sullivan recited that the land was conveyed to her separate use and that the evidence was at least of conflicting tendency on the issue of J. M. Sullivan’s intent or purpose in making the one deed to Mrs. Sullivan and in directing (if he did so) the other to be made to her by Parker.

But the force of these conflicting contentions need not now be discussed. Whatever view may be taken of the evidence relating to the merits of the case, it is not perceived how appellants could more certainly invoke our revisory power. As it seems to the writer no issue of either law or fact is raised by the statement of facts in this case that could have been decided by the trial judge that may not be now passed upon under the statement of facts and assignments of error before us, and while it is doubtless true that conclusions filed without the ten days provided by the statute would not be considered, possibly even in tbe absence of a motion to strike tbe same from tbe record, yet it seems significant that appellants have not exhibited in the transcript tbe conclusions of fact and law actually filed by tbe court so as to at least illustrate some possible way, if any, in which tbe judge’s failure operates to their prejudice. As before stated, this suit was instituted in April, 1909, and has been twice prosecuted to a favorable conclusion in tbe trial court by appellees, and in tbe judgment of tbe writer without further discussion we ought now to disregard tbe mere technical error discussed and proceed to a determination of tbe merits. Tbe conclusion of tbe majority, however, must prevail, and, accordingly, it is ordered that tbe judgment be reversed and tbe cause remanded for tbe error of the trial court in failing to file bis conclusions of fact and law within tbe proper time.

Reversed and remanded.

CONNER^ O. J., dissents.