author: MOURSUND, J.

text:
    WESTERN ASSUR. CO. v. HILLYERDEUTSCH-JARRATT CO.
    (No. 5258.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. Reformation of Instruments (§ 45)— Sufficiency of Evidence — Insurance Policy-Mistake.
    Evidence in- an action for the reformation of an insurance policy, naming L. as the insured and K. as mortgagee and payee in case of loss, held sufficient to support a judgment reforming the policy by inserting plaintiff’s name in the mortgage clause, on the ground of the insurer’s mistake in not making that clause in favor of plaintiff.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. .Dig. § 45.]
    2. Pleading (§ 69) — Petition—Admissions.
    In an action to reform an insurance policy, made out to L. as the insured and to K. as mortgagee and payee, by inserting the name of plaintiff as mortgagee and payee, an allegation of the petition that L. was the contractor who was building on the premises, and that at the time of the loss he had no interest therein and never had any interest therein, related to the premises described and, being true, was not an admission that L. never had any interest in the building, so as to show that, according to its express terms, the policy was void for want of insurable interest.
    [Ed. Note. — For other cases, see Pleading, . Dec. Dig. § 69.]
    3. Insurance (§ 378) — Estoppel—Delivery of Policy.
    An insurance company, whose agent was fully informed of the interest of the party named as the insured, who in fact had an insurable interest, and that the party mistakenly named as mortgagee and payee was in fact the owner, could not be heard to say that it delivered what it then knew to be an invalid policy, so as to defeat recovery by the party designated as the insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. § 378.]
    4. Reformation of Instruments (§ 45)— Evidence — Presumption and Burden of Proof.
    In an action to reform an insurance policy, the evidence must be clear and convincing to overcome the presumption that the policy embodies the real intention of the parties.
    [Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 157-193; Dec. Dig. § 45.]
    5. Trial (§ 194) — Instructions—Weight of Evidence.
    The rule that in a particular case the evidence must be clear and convincing to justify equitable relief by reformation of an instrument should not be given in the charge to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439 — 441, 446-454, 456-466; Dec. Dig. § 194.]
    6. Appeal and Error (§ 1001) — Review— Verdict.
    A verdict for plaintiff in an action to reform a fire policy by inserting its name as mortgagee and payee, brought on the ground of mistake in the writing of the policy, and in which the rules of evidence required that the evidence be clear and convincing, could not be set aside, without invading the province of the jury, merely because the Court of Civil Appeals would have judged differently as to the credibility of the witnesses.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    7. Contracts (§ 155) — C onstruction against Party Drawing up Contract.
    A contract drawn by one party is always construed most strictly against such party.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 736; Dec. Dig. § 155.]
    8. Insurance (§ 322) — Conditions—Occupancy.
    A provision, in a so-called union mortgage clause, that the mortgagee should notify the insurer of a change in occupancy was not violated by failing to notify the insurer of the owner’s neglect to occupy the house when completed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 760; Dec. Dig. § .322.]
    9. Insurance (§ 115) — Insurable Interest —Contractor.
    A contractor for a building may have an insurable interest sufficient to sustain a fire policy on the building under construction to the extent of whatever is due him, even though he is to be paid by the week and has no rights other than the statutory one of filing a mechanic’s lien.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 139-157, 177; Dec. Dig. § 115.]
    10. Insurance (§ 146) — Construction—Forfeiture.
    A forfeiture clause in an insurance policy should be strictly construed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 294-298; Dec. Dig. § 146.]
    11. Insurance (§ 328) — Conditions — Change of Ownership.
    Under a policy on a building under construction, naming L. as the insured and K. as mortgagee and payee, with a rate analysis slip attached naming K. as “owner or occupant” of the premises, and with a mortgage clause providing that the mortgagee should notify the insurer of any change of ownership or occupancy known to him, and that, unless such change was permitted, the policy should be void, the ownership was that of K., as mentioned in the analysis slip, and not the interest of L., so that, when the insurable interest passed from L., it did not necessitate a report by plaintiff, the mortgagee named in the policy as reformed.
    •[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 794-822, 825; Dec. Dig. § 328.]
    12. Witnesses (§ 345) — Impeachment—Accusation of Crime.
    It is not competent to impeach a witness by proving that he has been indicted for a felony or other crime, but the inquiry should be confined to proof of general reputation for truth.
    [Ed. Note.- — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    Error from District Court, Bexar County; R. H. Ward, Judge.
    Action by the Hillyer-Deutsch-Jarratt Company against the Western Assurance Company, C. L. King, and another. Dismissed as to King, and judgment for plaintiff, subrogat-ing defendant Western Assurance Company to its liens against King, and the defendant company brings error.
    Affirmed.
    Wm. Thompson and Jno. S. Patterson, both of Dallas, for plaintiff in error. M. J. Arnold, R. S. Cozby, and W. S. Peyton, all of San Antonio, for defendant in error.

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

   MOURSUND, J.

Hillyer-Deutsch-Jarratt Company, a corporation, sued the Western Assurance Company, R. H. Lindville, and C. L. King, seeking to reform an insurance policy for $2,750 and recover thereon. The policy was issued by Nicholson, Furnish & Smith upon a building in the course of erection upon a lot owned by C. L. King, and named R. H. Lindville as the insured and C. L. King as the mortgagee. It also named King as beneficiary in a loss payable clause, and contained no mention of plaintiff. It was alleged that Lindville had never owned any interest in the building, and that by a mutual mistake his name was inserted as owner instead of that of C. L. King, and the name of King in the mortgage clause instead of that of Hill-yer-Deutsch-Jarratt Company. King owed plaintiff $2,450, evidenced by a note dated December 27, 1911, and secured by a builder’s and contractor’s lien, as well as a deed of trust upon the insured premises, and plaintiff prayed that it recover of Western Assurance Company the amount due upon said note.

The Western Assurance Company answered by general demurrer, various special exceptions, a general denial, and a special answer, in which, at considerable length, various provisions of the policy are pleaded and their violation alleged, and it is contended that each of such violations, under the terms of the policy, rendered the same void. Said defendant prayed, if any judgment be rendered against it, then that it be subrogated to the rights held by plaintiff, and that it have judgment over against Lindville or King or upon any security held by plaintiff herein, and for general relief.

Plaintiff, by first amended supplemental petition, denied the allegations of the answer, and alleged various matters in avoidance of the defenses pleaded by defendant.

The case was dismissed as to C. L. King, because he was not a resident of the state of Texas, and could not be located. The trial resulted in a verdict and judgment for plaintiff against the insurance company for $2,450, rvith 8 per cent, interest from December 27, 1911, and that Lindville take nothing, and further that the insurance company be subrogat-ed to the liens held by plaintiff against King.

By the first assignment of error complaint is made of the court’s refusal to give a peremptory-instruction to find for appellant; it being contended that the evidence is insufficient to support a judgment reforming the written contract.

C. L. King purchased a lot at Alamo Heights, and employed G. E. Haney, an architect, to draw plans for a house to be erected thereon. King then made a contract with R. H. Lindville to build the house for $2,750; $300 being paid by King, and $2,450 was to be paid by Hillyer-Deutsch-Jarratt Company, plaintiff below, pursuant to arrangements made by King. King gave his note to plaintiff for the amount, and executed a builder’s and mechanic’s lien in its favor, and also a deed of trust, both upon the lot upon which the house was to be erected, and in each covenanted to keep such house insured in a company to be approved by plaintiff, with mortgage clause in favor of plaintiff, and in the deed of trust it was provided that King should deliver the policy to plaintiff. King went to Mexico, but authorized Haney to sign his name to orders upon plaintiff in favor of Lindville at the end of each week. Haney received no pay for such service, but agreed to inspect the work as an act of friendship for King. The house was completed February 3, 1912, and remained vacant up to March 20, 1912, upon which date it was destroyed by fire, flaney gave Lindville an order upon plaintiff for the final payment upon the house, and such payment was made on February 3, 1912, at which time Lindville informed plaintiff of the completion of the house, but did not deliver the keys to them. King did not take out any insurance before he left, and there is no evidence that he requested Haney to do so or discussed the matter with Lindville or plaintiff. On January 2, 1912, Haney called at the office of Nicholson, Furnish & Smith, defendant’s agents at San Antonio, for the purpose of procuring an insurance policy to be written upon the King house, being impelled to give the business to said firm because he had promised some business of that kind to an acquaintance of his by the name of McNeal who was an employe of Nicholson, Furnish & Smith, authorized by them to solicit and write insurance, and Haney testified that he represented the interested parties, King and Hillyer-Deutsch-Jarratt Company. He also testified:

“Mr. McNeal was there, and I gave him the data, told him I wanted an insurance policy on this building, that Mr. King was the owner; and, as I remember, he asked me if there was a mortgage clause on it, and I told him yes. That Hillyer-Deutsch-Jarratt Company was to furnish the money, and Mr. Lindville was the contractor.”

He told McNeal the amount was to be $2,-750, gave him the lot and block number, and told him C. L. King was the owner. Upon being asked what was said about the length of the policy, he stated: “It was written for one year.” He was asked: “What, if anything, was to be done with this data that you gave him?” 1-Ie testified: “Write a policy at once covering this property.” He was then asked: “Write it different or the same as you had instructed him?” And he answered: “Just as I had instructed him to write it.” He .testified further that McNeal said he would attend to it at once, would write the policy in accordance with the data he had furnished him; that the building had just been started; that it was afterwards completed and was destroyed by fire; that he did not see the policy after it was written. Upon cross-examination he admitted that Hillyer-Deutsch-Jarratt Company did not send him to get the insurance, and that Lindville did send him; also that he told McNeal that Lindville had a contract for $2,750, and that he (Haney) wanted $2,750 insurance. Me-Neal, testifying about the transaction with Haney, said:

“I do not remember his exact words, but he went on to say that he had Mi'.. Lindville building a house for Mr. King out in Alamo Heights, and that lie wanted insurance on. it of $2,750, and wanted it to take effect that night. I wrote the information on a slip of paper on my desk. Both of us were standing up, and X was writing on the leaf of the desk. I wrote on that slip, ‘R. H. Lindville, $2,750,’ and the address of the place. * * * I had a description of the property, with the lot and block number, and I also had Mr. O. L. King’s name. I put R. H. Lindville on that slip of paper according to instructions from Mr. fianey. He told me to; told me he> wanted the policy written for Mr. Lindville. He said Mr. King was the owner, and that he wanted a mortgage clause showing that Mr. King had an interest. I do not think there was anything more on the slip. Mr. Rice came to the door, and I called him in and introduced him to Mr. Haney, and told him that I had been trying for a good while to get the business. I gave him the slip of paper, and he asked Mr. Haney into his office, and, as I had work to do, I went on back to my desk. * * * I had heard of Hillyer-Dentsch-Jar-ratt, but had never solicited insurance from them. X had written policies in which their name appeared while working for Ewing & Go., and had written policies with mortgage clauses in their favor attached. I am reasonably sure the Hillyer-Deutsch-Jarratt Company was not mentioned by Mr. Haney while he was in the office. If Hillyer-Deutsch-Jarratt Company’s name was supposed to be in the policy, I would want it put in to protect them and to make the policy read right. G. E. Haney did not request me to put a mortgage clause on this policy to Hillyer-Deutsch-Jarratt Company. Mr. fianey did not request their name in the policy in any,way. I am positive about that. I am not interested in this case, and am not associated with the insurance company in any position whatever. Mr. Haney was looking over my shoulder at the slip of paper on which I made my notations; and I do not see how he could help but see it. Hillyer-Deutsch-Jar-ratt’s name did not appear upon that slip of paper. There is quite a business between Hill-yer-Deutsch-Jarratt and Nicholson, Furnish & Smith, and Mr. Hillyer often comes up there. The firm did not write so much business for Hillyer-Deutsch-Jarratt Company, but attached many mortgage clauses in favor of that company. * * * X made an entry in the journal at the time. That entry is in my handwriting and is ‘R. H. Lindville, dated January 3, 1912, 5624897, $38.50.’ The amount was the amount of the premium; the big number is the number of the policy. I charged the premium to Mr. Lindville because the policy is made out that way. * * * . After the policy was written by me, I handed it to Mr. Rice for his signature.. I do not know what he did with it. I wrote the name of Mr. Lindville as assured, following the instructions of Mr. Rice and Mr. fianey, and put the name of Mr. King in as mortgagee, and in the loss payable clause for the same reason, following the instructions of Mr. Rice and Mr. Haney. I did not put in the name of Hillyer-Deutsch-Jarratt Company because Lwas not instructed to, by either Mr. Rice or Mr. Haney. I am positive Mr. Haney did not tell me to put on a mortgage clause for Hillyer-Deutsch-Jarratt. * * * ”

Upon cross-examination lie testified:

“Mr. Haney did not tell me where to put Mr. Lindville’s name in the policy — -any particular line. What he did was to give me the data on which I was afterwards to write the policy. Mr. Haney said something about a mortgage. The word ‘mortgage’ was used by him. fie told me that Mr. Lindville was the contractor who was building or rather said that Mr. Lindville was building the house for the owner, King. I did not put Mr. King’s name in as the owner on account of the direction given me by Mr. Haney and Mr. Rice. Mr. Haney told me that Mr. King. was the owner. He told me that he wanted the insurance according to the data that was given me. Mr. Haney told me that Mr. King was the owner of the ground. I made Lindville the insured in the policy. Mr. Haney mentioned the question of a mortgage. Mr. Haney did not tell me that Mr. King had a mortgage on the property. He did not tell me that Mr. Lindville had a mortgage on the property. I have Mr. Lindville in the policy as the assured. I do not think I made that rate analysis attached to the policy. Mr. King’s name is on the rate analysis slip as owner or occupant. At that time, I did not know that he was not the occupant of the building; therefore I put his name there as being owner. I put his name on the front page as having a mortgage on the property. I put the contractor’s name in as being the assured. * * * I told you, Mr. Arnold, that, if Mr. fianey had mentioned the name of Hillyer-Deutsch-Jarratt Company, it was mentioned at a time and in a way that it made no impression on my memory. I am willing to testify that Mr. Haney didn’t tell me to put a. mortgage clause on that policy in favor of Hillyer-Deutsch-Jarratt. He didn’t tell me to put Mr. Lindville’s name in there as owner either; but he did tell me to write the policy for Mr. Lind-ville. He told me that Mr. King was the owner. I put Lindville in there as the assured. He told me that Lindville was the contractor. The word ‘mortgage’ was mentioned in this conversation.”

He testified further that he wanted the policy written so that it would protect all the people, and thought it was good; that he put in everything Haney told him to, and saw nothing in it contrary to the instructions given him by Haney; that, knowing King had an interest in the building, he put his name in as mortgagee, so that he would be protected; that he (McNeal) was new to the business of writing policies, and for that reason passed the policy up to Rice for approval after writing it.

J. T. Rice, manager of the insurance department of Nicholson, Furnish & Smith, testified that Hillyer-Deutsch-Jarratt Company were good customers of his employers at the time the policy was written and at the time of the trial; that McNeal brought Haney into witness’ office on January 2, 1912, and the policy was written on January 3d; that Mc-Neal introduced Haney, stating that Haney wanted to give them an insurance policy, and that McNeal gave witness a pencil memorandum, containing the names of the parties, the amount and class of policy desired, namely, a builder’s risk upon a building in process of construction; that he read the memorandum and asked Haney if the “Loss Payable ’Clause” should be made to King, and ’ he said yes; that on the memorandum was the name of the assured, R. H. Lind-ville, the lot and block number, the name of the street, the amount, $2,750, and the name of him whom Haney claimed to be the mortgagee, C. L. King; that Haney said Lind-ville was a contractor, and they had just started the building and wanted a builder’s risk; that witness kept the memorandum on his desk; that Haney said nothing about King except that the mortgage clause should be written in his name; that they were careful to protect lumber yards and mortgagees when their names were mentioned, and he believed they had prior to that time written or “fixed” policies for plaintiff in that way, but that plaintiff’s name was not mentioned upon this occasion; that witness inspected the house the next day, before the policy was written, and talked to a man there whom he took to be a carpenter, and he did not think it was Lindville, but asked only one question for the purpose of ascertaining whether he had located the property he wanted to inspect, which question was whether it was the house King was building, or perhaps whether it was the house Lindville was building; that no reason existed why he would not have inserted plaintiff’s name in a mortgage clause if he had been requested to do so; that, if Lindville’s name was placed in the wrong place, it should have been placed in the loss payable clause, when witness was told that he was the contractor; that he was told by Haney that Lindville was the contractor and King the owner, and to make the loss payable clause to King; that, when a man takes a contract to build a house, he has an insurable interest in the building until it is completed, even if he is paid at the end of each week; that no one paid the premium on the policy, or called to see about it, or gave notice that the house was vacant; that he asked Haney on March 5th, and again on March 12th, if the house was completed, and each time Haney replied that he did not know, but would ascertain iron) Lindville and let him know, but that Haney failed to furnish the information to witness; that witness wanted to cancel the builder’s risk upon completion of the house; that the house was completed on February 3, 1912, but neither plaintiff nor any one else notified Nicholson, Furnish & Smith of such completion ; that he learned, for the first time, after the house was destroyed, that it had been vacant from the day it was completed until it was destroyed; that Haney said to send the policy to Lindville’s address, which witness could find in the telephone book, and said he was placing the order for insurance for Mr. Lindville, and the premium was charged to Lindville; that credit was extended to Lindville for the amount of the premium, and appellant’s part was remitted to it by Nicholson, Furnish & Smith on February 1st, and was returned, but witness could not say whether it was before or after the fire; that Lindville offered to pay the premium after the fire; that Haney told him upon a certain occasion he did not remember saying anything about plaintiff’s name being mentioned, and was quite sure he did not, and that it was probably a mistake on his part in not naming plaintiff as mortgagee. Haney was recalled and denied such conversation, and testified he gave the data upon which the policy was written to McNeal, and • not to Rice.

Lindville testified that, when Rice inspected the house, he asked Lindville if it was a Hillyer-Deutsch-Jarratt job, and that Lind-ville told him it was; that he got the policy at Wagner’s Drug Store and at once turned it over to Mr. Zebo at Hillyer-Deutsch-Jar-ratt’s, without looking over it. He did not fix the date when he got it. He testified further that, if the lumber had burned up before he completed the house, it would have been his loss; that his interest in the house ceased on February 3d, when he was paid for it. He was asked, “You had the insurance policy written on that house and on that extra lumber, material on the ground to build that house?” to which he replied, “Yes, sir.” ¡

Rice, being recalled, testified that the name of plaintiff was not mentioned by any one in the conversation he had at the King house when he inspected the same.

Zebo, cashier for plaintiff, did not testify.

Hillyer, who was the general manager, testified that the policy was delivered to their cashier, who put it in the safe without looking at it, and that it stayed there a couple of months, and was not examined by them until after the fire. Hillyer saw the King house on March 16,1912, and found no one at home; he did not go into the house, but looked into the front windows and a window on the side, and so far as he could see the front room was unoccupied; he saw no furniture, but did not know what they had in the house because he did not get in the room; he tried to find out immediately, but before he did the house burned. He saw nothing to indicate that the house was occupied.

The rate and analysis slip attached to the policy names King as “owner or occupant” of the property, but Lindville is named in the policy' as the insured. The policy provides that it shall be void if the interest of the insured be not truly stated therein, or in case of fraud by the insured touching any matter relating to the insurance, or, unless otherwise provided by agreement indorsed thereon or added thereto, if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple. There is no indorsement upon the policy or agreement attached which defines Lindville’s interest in the building. The slip attached, wherein the property is described, is headed “Building in Process,” and contains no language which would not apply to insurance by the owner of the building, and nothing which can be construed as a recognition of the fact that a contractor was insuring his interest in the building. The mortgage clause provided, among other things, that, as to the interest of the mortgagee, the policy shall not be invalidated by any act or neglect of the mortgagor or owner of the property, nor by any change in the title or ownership of the property, and it further provided:

“ * * * That the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee), and, unless permitted by this policy, it shall be noted thereon, and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void.”

The assignment of error states two grounds upon which it is contended that the peremptory instruction should have been given, and they are urged by appropriate propositions.

One is that Hillyer-Deutsch-Jarratt were not parties to the contract, had no interest therein, and were not entitled to have the same reformed. In considering whether the parties made a verbal contract, with the terms as contended for by plaintiff, the conversation between Haney and McNeal is of the first importance. If any contract was made (that is, if the minds of the parties met), such contract was agreed upon by them. Let us see what instructions were given by Haney to McNeal. He told McNeal he wanted an insurance policy on the building, that King was the owner, and, as he remembered, McNeal asked him if there was a mortgage clause on it, and he said yes; that Hillyer-Deutsch-Jarratt Company was to furnish the money, and Mr. Lindville was the contractor. Taking Haney’s recollection as true, he instructed McNeal to place a mortgage clause upon the policy, and McNeal must have known that it was to be in favor of plaintiff, because he was told that it furnished the money. So, taking that statement as true, and finding that, in spite of his testimony to the contrary, McNeal must have understood and acceded to such request, the conclusion follows that McNeal made a mistake in failing to incorporate such agreement in the policy. McNeal could not have understood that Lindville’s name was to go into the mortgage clause, because he did not place same therein, nor does the testimony warrant a construction that King’s name should be inserted therein. A circumstance relied upon 'by appellant is that McNeal testified that Haney was looking over McNeal’s shoulder while the latter was writing down the information communicated by Haney. Haney, though recalled, was not questioned upon this point. The memorandum was not introduced in evidence, but McNeal and Rice testified to its contents. They did not undertake to state exactly how the memorandum was written.' It does not appear that Lind-ville was described in the memorandum as the insured,, but that his name was mentioned, followed by the amount, and that King’s name was also mentioned, but not that of Hillyer-Deutsch-Jarratt Company. Neither McNeal nor Rice testified that the memorandum contained words indicating that King’s name was to be put in the loss payable clause or in a mortgage clause. It is evident from Rice’s testimony that he inferred King’s name was to go into the loss payable clause, because he at once, after reading the memorandum, asked Haney if such clause should be made to King. Neither McNeal nor Rice testified that Haney said to put King’s name in the loss payable clause and in a separate mortgage clause, and we think the jury was justified in concluding that both witnesses used the term “mortgage clause” in portions of their testimony when they meant loss payable clause. McNeal did not go into Rice’s office with Haney, and it appears that Haney was not led into Rice’s presence to make a contract, but merely to evidence the value of McNeal’s services to his employers. McNeal, being new to the business, deferred to Rice in writing the policy, as he testified that he undertook to follow the instructions of Mr. Rice and Mr. Haney. Haney’s visit was upon a busy day for Rice and McNeal, and errors were likely to occur. McNeal, though very positive about some matters, admitted that something was said about' a mortgage, yet never undertook to state just what was said in regard thereto, thus leaving the jury to infer that some conversation took place about a mortgage, which he understood at the time and agreed to, hut which had slipped his memory. If they believed Haney, they must have found that Mc-Neal understood and agreed to the request for a mortgage clause in favor of plaintiff, but neglected to write plaintiff’s name in the memorandum, and in the rush of business and preparation of policies forgot that the clause was to be in favor of plaintiff, and wrote the policy according to Rice’s instructions, which were based upon the memorandum.

The other ground relied upon by appellant is that the evidence shows the policy was null and ■ void as to R. H. Lindville, and therefore plaintiff could not recover. In this connection, appellant seeks to construe plaintiff’s petition as an admission that Lind-ville never had any interest in the house built for King, and makes several contentions based upon such construction, one being that Lindville, therefore, had no insurable interest and.the policy was void; another that, such being the case, Haney misrepresented a material fact in stating that Lind-ville was the contractor and did not truly state the interest of the insured. Plaintiff alleged that Lindville “was merely the contractor who was building the improvements upon the above-described property and had no interest therein at the time of the fire as hereinafter set forth, and has never had any interest in the property above described.” It may be that the allegation that Lindville had no interest at the time of the fire relates to the improvements as well as the “above-described property”; hut it is clear that the allegation that he has never had any interest relates to the property above described, meaning the property upon which the building was erected. Said allegation is true and cannot be construed as any admission that Lindville, as contractor, had no insurable interest in the building.

The evidence shows that Lindville had an insurable interest in the building as contractor, and appellant admits it in its brief, and while there are clauses which, if given effect, would render the policy void if Lind-ville be the insured, yet as the evidence shows that appellant’s agent was fully informed of the interest Lindville had, and that King was the owner, we do not hesitate to say that Lindville could have recovered upon the policy as the insured, if in fact the contract provided that he was the insured. The company could not be heard to say that it delivered what it knew at the time to be an invalid policy. Wagner & Chabot v. Westchester Fire Ins. Co., 92 Tex. 549, 50 S. W. 569; Ins. Co. v. Cummings, 98 Tex. 115, 81 S. W. 705; Fire Association v. Compress Co., 150 Tex. Civ. App. 172, 109 S. W. 1134.

As we construe the court’s charge, the issue was not submitted whether it was agreed between Haney and McNeal that King would be the insured and Lindville the beneficiary in the loss payable clause, but merely whether it was agreed that plaintiff’s name should be placed in the mortgage clause. Appellant does not complain of the charge, nor does it contend by proposition that the evidence must be sufficient to reform the policy so as to make King the insured. We will therefore not discuss the evidence with respect to that issue.

Appellant contends, however, that the evidence must be clear and convincing to overcome the presumption that the policy embodies the real intention of the parties, citing Delaware Ins. Co. v. Hill, 127 S. W. 286, and other cases.- True, this case falls within one of the classes of eases in which the courts have undertaken to specify that certain evidence is required to justify equitable relief. Recognition has frequently, and we may say uniformly, been accorded to the rule that evidence in certain cases must be “clear and satisfactory” or “clear and convincing.” See the cases cited in Simpkins on Equity, pp. 158, 244 and 526.

However, our courts have often stated that such rules are not to be given in charge to the jury. Stubblefield v. Stubblefield, 45 S. W. 965; Miller v. Yturria, 69 Tex. 554, 7 S. W. 206; Land Mortgage Co. v. Page, 23 Tex. Civ. App. 269, 56 S. W. 377; Feist v. Boothe, 27 S. W. 33; Barnet v. Houston, 18 Tex. Civ. App. 134, 44 S. W. 690; Baines v. Ullmann, 71 Tex. 537, 9 S. W. 543; Howard v. Zimpleman, 14 S. W. 62; Mitchell v. Mitchell, 80 Tex. 113, 15 S. W. 705; Irvin v. Johnson, 44 Tex. Civ. App. 436, 98 S. W. 405; Smalley v. Paine, 130 S. W. 742; Baylor v. Hopf, 81 Tex. 637, 17 S. W. 230. Whether such charges should be held to be upon the weight of the evidence was a question for our Supreme Court, and the holding is referred to merely for the purpose of showing how difficult it is to apply the rule that the evidence must be clear and convincing. It cannot' be gainsaid that primarily it should be clear and convincing to the jury, not to us, and that we must view it with the eyes of the jury, yet with the use of a light not in their possession.

Great care must be exercised not to invade the province of the jury, and it cannot be held that the evidence is not clear and convincing because we would have judged differently as to the credibility of the -witnesses or on the ground that we would not know which of them to believe, and therefore consider the testimony unconvincing. All questions of credibility must be solved in favor of the verdict, and every legitimate inference favorable to the verdict drawn from the testimony and the circumstances in evidence, and when this is done, if such testimony and inferences satisfy the mind that a mistake was made to the effect contended for by plaintiff, it is our duty to uphold the verdict. Leaving out of consideration questions of credibility .arising upon the testimony of Haney, which testimony we must take as true in deference to the verdict, we cannot agree with appellant as to the effect of the evidence. The real intent of the parties need not be shown by direct and positive testimony, but is it sufficient if it be established satisfactorily by the testimony of what did occur and the legitimate inferences deduced from the manner in which' the policy was drawn. We conclude that we cannot say, without invading the province of the jury, that evidence in this case did not meet the requirements of the law in order to justify the reforming of the policy so as to place plaintiff’s name in the mortgage clause instead of King’s name. The first assignment of error is overruled.

By the second assignment it is contended that the undisputed evidence shows that Hillyer discovered that the house was vacant and unoccupied, and that it was his duty to notify appellant of such fact, and that he failed to do so. Hillyer’s testimony is the only evidence upon this point. It has hereinbefore been stated, and does not show knowledge on the part of Hillyer of the house being vacant or unoccupied, as it shows that he was unable to see into all the rooms. A contract drawn by one party is always construed most strictly against such party, and a provision, in what is known as a “union mortgage clause,” that the mortgagee shall notify the insurer of a change in occupancy, we think, is not 'violated by failing to notify the insurer of the neglect of the owner to occupy the house when completed. The assignment is Overruled.

By the third assignment it is contended that the undisputed evidence shows that a change of ownership occurred in that Liudville’s interest ceased when he was paid off, and passed to King, and that, as plaintiff knew of such, change and failed to report it to the insurer, it could not recover. There is no evidence that plaintiff knew that Lind-ville was the owner of the building until it was completed, if such-ownership can be deduced from Lindville’s testimony. True, if Lindville be the insured, plaintiff would be chargeable with notice that he had an insurable interest in the building, and the same might be said if his name had appeared in the loss payable cause, but he could have such an interest for whatever was due him, even though he was to be paid by the week and had no rights other than the statutory one of filing a mechanic’s lien. Cooley’s Briefs on the Law of Ins. pp. 172, 183. Plaintiff would not be chargeable with notice that the contractor had a contract to deliver a completed' building. However, as a forfeiture clause should be strictly construed, we think the word “ownership,” in the mortgage clause, should not be held- to refer to the interest owned by Lindville, but to the ownership of King. The rate analysis attached to the policy names King as the “owner or occupant.” Lindville was not named as the owner anywhere in the policy, and, as it provided that the house was to be erected, it is plain that King was being named as the owner, and not as the occupant. Therefore, if appellant treated King in the policy as the owner, it is but fair that his ownership should be construed to be that referred to in the mortgage clause,, and, as no change occurred therein, plaintiff did not violate the provision of said clause. The clause was not asi broad as those which require a change in interest to be reported. If the mere fact that Lindville was named as the insured necessitated a report by plaintiff when the insurable interest passed from Lindville, then the issue whether King was agreed upon as the insured was very material and should have been submitted to the jury. We conclude, however, that the ownership referred to in the mortgage clause was that mentioned in the rate analysis, and that, before a forfeiture could be declared, it must be plainly stated in the mortgage clause that any change of the interest held by the insured should be reported by the mortgagee. The assignment is overruled.

By the fourth and fifth assignments of error complaint is made of the court’s refusal to permit appellant to prove that Haney and Lindville had been indicted upon the charge of burning the building covered by the policy sought to be reformed in this suit. There is nothing in the record to show that appellant was concerned in the prosecution of Haney and Lindville, and therefore the fact that a prosecution was had or indictments returned would not show prejudice against appellant upon their part, nor does appellant so contend, but contends that the indictments were admissible to impeach the witnesses. The Supreme Court has established the rule that it is not competent to impeach a witness by proving that he has been indicted for a felony or other crime, and that the inquiry should be confined to proof of general reputation for truth. Railway v. Creason, 101 Tex. 335, 107 S. W. 527. We think that decision controls in this case, and that the assignments are therefore without merit.

The sixth assignment is without merit, and is overruled.

The seventh assignment is overruled for the reasons given in overruling the first assignment.

The judgment is affirmed.

CARL, J., did not sit in this case.


source: Caselaw Access Project

author: EICE, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. STATE.
    (No. 5159.)
    (Court of Civil Appeals of Texas. Austin.
    April 9, 1913.
    On Motion for Rehearing, May 13, 1914.
    Rehearing Denied June 10, 1914.)
    .On Rehearing.
    1., Commerce (§ 27) — Regulation — Intrastate Commerce.
    Under Const, art. 10, § 1, empowering a railroad corporation to construct and operate a railroad within the state, and to connect at the state line with railroads of other states, a passenger train operated by a Texas railroad company under a contract with a foreign company, from whom it received the train at the state line and then hauled it to other points within the state, was an instrument of intrastate and not interstate commerce, since the Texas company had no powers outside of the state, and the company was liable, under Railroad Commission Circular 18, for failure to start such train from its point of origin at the time scheduled; the point of origin being the point where the train was received from the connecting company.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.]
    2. Carriers (§ 18) — Regulation—Enforcement oe Orders oe Commission — Court Action — Condition Precedent.
    Railroad Commission Circular 18, requiring railroads to start passenger trains from their points of origin on schedule time, is a general order applying to all roads in the state, and can be enforced by the courts, without the road having first been cited by the commission to show cause why it did not comply with the order, notwithstanding that the order was passed in 1907, and the alleged violations occurred in 1908.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24; Dec. Dig. 3 18.]

      3. Carriers (§ 20) — Regulation—Enforcement of Orders — Penalties—Separate Offenses.
    Under Rev. St. 1911, art. 6672, providing that for every act of violation of the orders of the Eailroad Commission the railroad shall pay a penalty to the state, each failure of a railroad to start its trains from their points of origin on schedule time, as required by Eailroad Commission Circular 18, is a separate offense, and subjects the railroad to liability for the penalty.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 83-49, 133, 927; Dee. Dig. § 20.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by the State of Texas against the Missouri, Kansas & Texas Eailway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed on rehearing.
    A. S. Coke and A. H. McKnight, both of Dallas, and Fiset & McClendon, of Austin, for appellant. B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.

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

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

   EICE, J.

As appellant’s statement of the nature and result of the suit is concurred in by appellee, the same will be adopted, and is as follows: This suit was instituted by the state of Texas against appellant to recover penalties aggregating $400,000, on account of 80 alleged violations of passenger circular No. 18, issued by the Eailroad Commission of Texas, relating to the running of passenger trains on schedule time, commonly called “the thirty-minute order”; said violations occurring between September 8, 1910, and November 8, 1910. A trial before the court resulted in a judgment against appellant for $14,000, from which this appeal is prosecuted.

Said circular 18 reads as follows:

“Each and every railroad company operating a railroad in this state shall start its passenger trains from the points of origin in accordance with advertised schedule, and said trains, except from unavoidable accidents thereto en route, shall observe and conform to the published schedule as to arrival and departure at the several stations on the line: Provided, that trains may be held not to exceed thirty (30) minutes at origin or at junction points with other lines to make connection with trains on such other lines. If, at the expiration of said thirty minutes, connecting trains are in sight, ten minutes, in addition to said thirty minutes, will be allowed in which to make the connection. Where connecting trains arrive within the time above allowed, a reasonable time, in addition to that provided for, will be allowed for transfer of passengers, mail, express, and baggage. Where connections are reliably reported to be more than thirty minutes late, no wait will be made.”

Article 6552, Revised Statutes of 1911 (article 4494, E. S. 1895), upon which said order is predicated, reads:

“Every such corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice, and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall, with a reasonable time previous thereto, offer or be offered for transportation at the place of starting and at junctions of other roads and at sidings and stopping places established for receiving and discharging way passengers and freights, and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the tolls, freight or fare legally authorized therefor. Failure on the part of the railroad companies to comply with the requirements of this article shall be deemed an abuse of their rights and privileges and subject to regulation and correction by the Eail-road Commission.”

Article 6672, R. S. 1911, provides that:

“If any railroad company doing business in this state shall hereafter violate any other provision of this chapter, or shall do any other act herein prohibited, or shall fail or refuse to perform any other duty enjoined upon it for which a penalty has not been provided by law, or shall fail, neglect or refuse to obey any lawful requirement, order, judgment or decree made by the Eailroad Commission of Texas, for every such act of violation it shall pay to the state of Texas a penalty of not more than five thousand dollars.”

Appellee charged that it was appellant’s duty to operate its passenger trains Nos. 9 and 209, commonly called the “Katy Limited,” in accordance with said circular, and that upon 80 different occasions, specifically set out, it had failed to do so, praying for penalty against it in the sum of $5,000 for each alleged violation.

Replying, appellant urged a general demurrer ; likewise admitted certain facts alleged, and a general denial of others, and pleaded specially that the circular of said Eailroad Commission did not apply to it by reason of the fact that it was engaged in interstate commerce, carrying passengers and freight between points in .said state and points in Oklahoma, Kansas, Missouri, and other states of the United States and foreign countries, and that as such common carrier was subject to and controlled by the Interstate Commerce Act of February 4, 1887, and amendments thereto, that trains Nos. 9 and 209 are composed of trains made up in St. Louis and Kansas City, Mo., and operated by the Missouri, Kansas & Texas Railway Company to Parsons, iKan., where they were consolidated and operated as one train to Deni-son, Tex., from which point it was, without change except of engines and crews, operated by defendant under contract with the last-named railroad company as trains Nos. 9 and 209, via Dallas and Ft. Worth to Hillsboro, and thence as one train to Granger, where it separated, one branch going to Galveston, and the other to San Antonio. A corresponding north-bound train, also popularly called the “Katy Limited,” and designated by defendant and said railway company as train No. 10, except the part thereof operated between Hillsboro and Denison, via Ft. Worth, which is called train No. 210, has also since said date been daily operated by them to points outside of Texas on the line of the Missouri, Kansas & Texas Railway.

It was likewise alleged and shown that appellant furnished ample accommodation for intrastate traffic independent of said trains Nos. 9 and 209 on and over its line south of Denison, and that, while said trains 9 and 209 stopped and took on and discharged passengers at various points along its line from Denison south, still that about 70 per cent, of the passenger traffic was interstate; that they also published and advertised said trains as being through trains, affording continuous passage from St. Louis and Kansas City to San Antonio and other points in Texas, and as such being engaged in interstate commerce. The material facts of said plea were sustained by the record.

It is contended on the part of appellant that circular No. 18 is not applicable to trains Nos. 9 and 209, for the reason that the same would be a regulation of, a burden upon, and an interference with interstate commerce. It clearly appears that the trains involved in this case were operated between St. Louis and Kansas City, Mo., and San Antonio, Tex., under an agreement between áppellant and the Missouri, Kansas & Texas Railway Company, whose lines connected at Red river, five miles north of Denison. These trains were intended to and did accommodate interstate traffic, and, under the agreement and contract between appellant and the Missouri, Kansas & Texas Railway Company, the latter was obligated to deliver the south-bound trains to appellant at Red river, and appellant was. obligated to handle them through to destination; and appellant was obligated to deliver the north-bound trains to said company at Red river, and the other was bound to handle them through to St. Louis and Kansas City.

By its proposition under its several assignments appellant insists that a through passenger train, operated by two railway companies under an agreement, between points in different states, is an instrumentality and facility of carriage within the meaning of the act to regulate commerce, the jurisdiction to regulate and control which lies with the Interstate Commerce Commission, and not with the Railroad Commission of Texas. We agree with this contention, and hold that, since it clearly appears from the record that the trains involved in this contention were engaged in interstate commerce at the times in question, the order of the commission was not applicable to them, and sustain appellant’s several assignments raising this question. See Interstate Commerce Act, §§ 1 and 15, as amended (Act Feb. 4, 1887, c. 104, 24 Stat. 379, 384 [U. S. Comp. St. 1901, pp. 3154, 3165], as amended by Act June 29, 1906, c. 3591, §§ 1, 4, 34 Stat. 584, 589 [U. S. Comp. St. Supp. 1911, pp. 1284, 1297]); 1 Drinker; Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; B. & O. R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878; Southern Railway Co. v. Reid, 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257; Southern Railway Company v. Reed & Beam, 222 U. S. 444, 32 Sup. Ct. 145, 56 L. Ed. 263; 2 Employers’ Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, decided January 6, 1913; C., B. & Q. Ry. Co. v. Miller, 226 U. S. 513, 33 Sup. Ct. 155, 57 L. Ed. 323, decided January 6, 1913; C., R. I. & P. Ry. Co. v. Hardwick Farmers’ Elevator Co., 226 U. S. 426, 33 Sup. Ct. 174, 57 L. Ed. 284, 46 L. R. A. (N. S.) 203, decided January 6, 1913; also, United States v. Union Stock Yards & Transit Co., and Chicago Junction Railway Co. v. United States, 226 U. S. 286, 33 Sup. Ct. 83, 57 L. Ed. 226, decided January 15, 1913.

Appellant likewise contends by its several propositions that, where a railroad company has already provided ample facilities for the adequate accommodation of the traveling public, such as may be proper and reasonable at any given point, and operates, in addition thereto, through trains for the accommodation of interstate passengers, an act of the state Legislature or Railroad Commission affecting the operation of said through trains is a burden upon and an interference with interstate commerce, and this contention seems to be supported by the authorities. See Herndon v. C., R. I. & P. Ry. Co., 218 U. S. 135, 30 Sup. Ct. 633, 54 L. Ed. 970; Atlantic Coast Line v. Wharton, 207 U. S. 328, 28 Sup. Ct. 121, 52 L. Ed. 230; Mississippi Railroad Commission v. Illinois Central R. R., 203 U. S. 335, 27 Sup. Ct. 90, 51 L. Ed. 209; Big 4 v. Illinois, 177 U. S. 514, 20 Sup. Ct. 722, 44 L. Ed. 868; L. S. & M. S. Railway Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702; Gladson v. Minnesota, 166 U. S. 427, 17 Sup. Ct. 627, 41 L. Ed. 1064; Illinois Central R. R. Co. v. Illinois, 163 U. S. 142, 16 Sup. Ct. 1096, 41 L. Ed. 107.

The uncontradicted evidence, we think, amply sustains appellant’s contention that during the period in controversy it furnished ample facilities, independent of said through trains, for the accommodation of its passenger traffic on its lines south of Denison, in that it had three passenger trains each way daily between Denison and Hillsboro, via Dallas and Ft. Worth, three passenger trains each way daily between Hillsboro and Gran-ger, and two passenger trains each way daily between Granger and San Antonio, in addition to said trains .Nos. 9 and 209, or a total of four trains daily each way between Deni-son and Granger, and three trains each way daily between Granger and San Antonio; two of the additional trains between Denison and Granger stopping each way daily at all regular stations, and one of them between Granger and San Antonio.

The chief complaint on the part of appel-lee was that appellant failed to run said trains Nos. 9 and 209 out of Denison on schedule time. It will be observed that the order of the commission only requires railroad companies operating in this state to start their passenger trains from the points of origin in accordance with their advertised schediües. Can it he said that Denison was the point of origin of said trains above referred to? We think not. These trains, it clearly appears from the evidence, were made np and started from Kansas City and St. Louis, respectively, and thence operated and delivered to appellant by said Missouri, Kansas & Texas Railway Company at Denison, from which point appellant forwarded them, as through trains, under contract, over its lines, so that we think it must be regarded as one continuous train, with its point of origin at Kansas City and St. Louis, and that appellant was merely forwarding same upon its arrival at Denison, in accordance with and by virtue of its contract, and that the failure of said trains to arrive and depart from Denison in accordance with schedule time was not a violation either of the letter or spirit of said order No. IS.

These holdings render it, we think, unnecessary to discuss the various other assignments presented in appellant’s brief.

Believing, as we do, that the findings of the court to the effect that appellant had failed to comply with the order of the commission, as set forth in circular No. 18, cannot be sustained, for the reasons heretofore set forth, and that appellant is not subject to the penalty imposed upon it, because at the time of the alleged violations of said order it was engaged in interstate commerce, which is not the subject of regulation by said commission, it becomes our duty to reverse and render the judgment of the trial court in favor of appellant, which is accordingly done.

Reversed and rendered.

On Motion for Rehearing.

A very interesting, able, and elaborate motion for rehearing, embracing all the questions involved in this appeal, supported and enriched by numerous authorities evincing great industry and research, has been filed by the Attorney General and his assistant in behalf of the state, urging that the court erred in its original opinion reversing this case.

Among other reasons so assigned is that the court erred in holding that the order of the commission discussed in the original opinion was void, and not enforceable, because the trains in question originated in St. Louis and Kansas City, and not at Denison, Tex., and hence were instrumentalities of interstate commerce, and could not be regulated and controlled by the Railroad Commission of Texas. After a careful consideration of the matter, we are impressed with the correctness of appellee’s contention. It is true that original train No. 9 was made up of two separate and distinct trains, one operated out of St. Louis and the other out of Kansas City by the Missouri, Kansas & Texas Railway Company to Parsons, Kan., where they were consolidated and run to Denison, Tex., and delivered by said company to appellant; yet at this point the control and authority of the first company ceased, and, in a sense, the identity of the train was lost, and the control of the latter company commenced, because here parts of said train, with other equipment added, were operated by appellant with separate and distinct crews and engines to Hillsboro, Tex., one as No. 9, via Dallas to said point, and the other as No. 209, via Ft. Worth, where some of the cars composing the train were dropped out. At Hillsboro they were reunited and operated to Granger as No. 9, where they were again divided, and thereafter operated by appellant as separate and distinct trains; one part thereof going to Houston, and the other to San Antonio, via Austin. They were advertised and known as appellant’s trains, and were scheduled by it each to leave Denison daily at 6:25 a. m. For which reasons we think, so far as appellant is concerned, said trains Nos. 9 and 209 must be regarded as originating at Denison, Tex. Besides this, under the Constitution and laws of this state, Denison must be regarded as the beginning or starting point of said trains. Appellant had no right to operate its trains beyond the state line, and therefore trains received at the line and operated by it through the state must be regarded as commencing at such point. See Railroad Commission v. C., R. I. & G. Ry. Co., 102 Tex. 397, 117 S. W. 794. Section 1, art. 10, of the Constitution of this state provides that:

“Any railroad corporation or association, organized under the law for the purpose, shall have the right to construct and operate a railroad between any points within this state, and to connect at the state line with railroads of other states.”

The statutes under which appellant is incorporated only authorized it to operate between named points within this state. See R. S. 1911, art. 6408. In Railroad Commission v. C., R. I. & G. Ry. Co., supra, it is said:

“The state line is, in law and in fact, one terminus of the line of a railroad intersecting it constructed by a Texas corporation, because its powers cease at that line.”

It is true, as contended by appellant, that such trains were operated under a contract between it and the Missouri, Kansas & Texas Railway Company, whereby it was required to receive original train No. 9 from said last-named company at the state line and operate it over its lines of railway to San Antonio, its point of destination in Texas, in consideration that the Missouri, Kansas & Texas Railway Company would likewise receive from appellant trains Nos. 10 and 210 at such point and operate them over its respective lines to a named destination beyond the state; by reason of which it is, in effect, contended by appellant that, notwithstanding the fact that it was operated as two distinct trains, known as 9 and 209, south from Deni-son, it should be regarded as originating in Kansas City and St. Louis, instead of at Den-ison, and thence operated jointly by said two companies as a through train to its point of destination, constituting it a through train,' and thereby relieving it from the control of the Railroad Commission. Even though it was being operated under and by virtue of said contract, still we are not disposed to think that this would have the effect to change the beginning or initial point, so far as appellant is concerned, to a point outside of the state of Texas; especially in.view of the fact that the law, as we have seen, does not permit appellant to extend its lines beyond the state, but confines its operation to points within the same.

We therefore hold that such train must be regarded as having originated at Denison, Tex., where appellant took charge of it, operating it as separate and distinct trains from said point to destination over its lines in accordance with its contract. This view renders it unnecessary for us to consider and pass upon the many other interesting questions presented in the briefs of the respective parties relating to the right of appellant to operate said trains under the Interstate Commerce Law independent of state control, because, this being an intrastate transaction, as we have held it is, appellant in the operation and management of its trains must be held subject to the control of the Railroad Commission.

Notwithstanding the order was passed in 1907, and the violations are charged to have occurred in 1908, yet we think it is not necessary, as appellant contends, that it should first have been cited by the commission to show cause why it had failed to comply therewith before suit could be instituted to enforce such order. It was a general order, applying to all roads of the state falling within its purview, and hence could be enforced by the courts in the first instance.

Nor do we think there is any merit in appellant’s further contention to the effect that the court erred in assessing the penalty for more than one violation. This was not a continuous offense. Each violation is by the statute made an offense, and punishable as such; hence the trial court did not err in overruling appellant’s contention in this respect. See Baltimore & Ohio S. W. R. R. Oo. v. United States, 220 U. S. 94, 31 Sup. Ct. 368, 55 L. Ed. 384; also, State v. Wisconsin Central Ry. Co., 133 Wis. 478, 113 N. W. 952, 14 Ann. Cas. 1061.

In the first case referred to it was held that, where there were different shipments of cattle under the 28-hour law, which required that they should not be carried for a longer period than 28 hours without being unloaded for feed and water, a separate punishment might be imposed for each shipment. If, however, a number of shipments were made at the same time and place, therefore requiring unloading and watering at the same time to comply with this law, then, and in that event, but one punishment could be imposed.

In the last case cited, where the law limited the speed of trains in cities and villages and imposed a penalty “for each and every” violation, it was held that this would authorize a recovery of cumulative penalties in one action- where several violations are* shown.

The statute in the present case imposes a penalty for every act of violation thereof. See article 6672, R. S. 1911. Hence the court was within the law in imposing a penalty for each violation as shown by the evidence.

Believing that we erred, for the reasons indicated, in reversing and remanding the case, the motion for rehearing is granted, and the order of reversal heretofore made is set aside, and the judgment of the court below is' in all respects affirmed.

Motion granted. Judgment affirmed.


author: HALE, J.

text:
    BRYNING v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 620.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1914.
    Rehearing Denied June 6, 1914.)
    1. Appeal and Error (§ 216) — Objection Below — Requested Instructions.
    Mere omissions in the charge cannot be made a ground of complaint in the Court of Civil Appeals, where no special charges, for the purpose of curing the defects, were requested.
    [Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216 ; Trial, Cent. Dig. § 627.3
    2. Carriers (§ 280) — Carriage of Passengers — “High Degree oe Care” — “Ordinary Care.”
    The “high degree of care,” which it is the duty of a carrier to exercise toward its passengers, is that degree of care which a very cautious, careful, and prudent person would exercise under the same or similar circumstances, and the failure to exercise which, where required by law to do so, is negligence; and the “‘ordinary care,” which it is its duty to exercise, is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, and the failure to exercise which is negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092. 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.

    For other definitions, see Words and Phrases, vol. 8, p. 7678; vol. 6, pp. 5029-5042; vol. 8, pp. 7739, 7740.]
    3. Negligence (§ 65) — “Contributory Negligence.”
    “Contributory negligence” is such want of ordinary care on the part of the person injured as, concurring with the negligence of the party causing the injury, proximately contributes to the injury.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.

    For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617.]
    4. Careiers (§ 280) — Personal Injuries— Instructions — Proximate Cause.
    In an action against a carrier for personal injuries to plaintiff’s wife while alighting from a train, an instruction that it must appear from the evidence that the injury was the natural and probable consequence of the negligence, and ought to have been foreseen as likely to occur by a person of ordinary prudence in the light of attending circumstances, was proper; the words “by a person of ordinary prudence” should not be construed to apply to the degree of care required of the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dee. Dig. § 280.]
    5. Damages (§ 185) — Personal Injuries— -SUFFICIENCY OF EVIDENCE.
    Evidence in an action for personal injury to plaintiff’s wife from defendant’s negligence when alighting from a car, in which defendant claimed that plaintiff was malingering and deliberately attempting to defraud, held, to sustain a verdict for defendant.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. § 185.]
    Appeal from District Court, Cooke County; C. P. Spencer, Judge.
    Action by D. A. Bryning against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Stuart, Bell & Moore, of Gainesville, for appellant. Garnett & Garnett, of Gainesville, and Alex. S. Coke and A. H. McKnight, both of Dallas, for appellee.

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

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

   HALE, J.

We adopt the following as a correct statement of the nature and result-of the suit, made by appellant:

“This is a suit brought by D. A. Bryning, appellant, to recover of appellee the sum of $40,000, as damages on account of injuries alleged to have been received by his wife, Laura Bryning, on one of appellee’s trains between Dindsay, Tex., and Gainesville, Tex., on the 6th day of February, 1912. Appellant alleged in substance that on the 6th day of February, 1912, Laura A. Bryning, wife of appellant, was .a passenger on one of defendant’s trains between Gainesville, Tex., and Lindsay, Tex., stations on the line of defendant’s railway; she having paid the regular fare demanded of her by said defendant, a railroad corporation. That plaintiff’s wife was a large heavy woman, weighing about 200 pounds, and that, upon her arrival at said Lindsay, she proceeded to alight from said train at the proper place. That the agents and servants of defendants, whose duty it was to assist passengers in alighting, ahead of her placed a footstool below the steps for her to step upon. That there was no platform at said place, and that said footstool was about two feet below the said step. That said Laura A. Bryning attempted to step upon said footstool, and, when she did so, the footstool turned and careened, and she fell and received severe and permanent injuries. That the defendant failed to use that high degree of care which it was its duty to use towards passengers in said case, and was guilty of negligence in that the said agent and servant of defendant, assisting Mrs. Bryning to alight, was guilty of negligence in that he set and placed the footstool aforesaid too close to the track and placed the same too far under the step and set the same so that the top surface was not level, so that, when said passenger stepped upon said footstool, the same turned or careened, but gave way, and she was precipitated to the ground; and defendant was further negligent in that said agent and servant did not assist or aid or catch the said Laura A. Bryning while she was alighting from said train, although there was no platform there, and the distance from the steps of the car to the ground was something like two or three feet at that place. That each and all of said acts were negligence and were the proximate cause of the injuries of the said Laura A. Bryning, without any negligence on the part of plaintiff or said Laura A. Bryning. That as a result of said fall she received internal injuries, causing a rupture of her kidneys, and that she suffered a fractured leg ; the said injuries being permanent, necessitating medical treatment, and incapacitating her from labor, alleging her prior strong and vigorous condition, and asking damages in the sum of $40,000.
“The defendant answered by general denial, and with special plea answered that the condition of plaintiff’s wife was brought about by excessive use of intoxicating liquors which she had used for many years prior to the date of the injury as alleged; that her condition was not brought about by the act of defendant, but her injuries were the result of diseases and diseased eonditions_ existing prior to the date of her alleged injury; and defendant further answered with the special plea that, if the said Laura A. Bryning did fall at said Lindsay, her fall was intentional and was conceived with the purpose of bringing a damage suit against the defendant; that her injuries were brought about by her own negligence in that she attempted to step from said train without holding to the handrail, which defendant had provided for that purpose. On May 6, 1913, this case was tried in the district court of Gooke county, before a jury, which resulted in a verdict and judgment in appellee’s favor.”

The case is presented here by 19 assignments of error; nearly half of them being multifarious. Many of them do not clearly specify the errors complained of, and are not followed by proper propositions. We shall not therefore undertake to consider them seriatim. Bach of the assignments attacks the charge of the court. No special charges were requested by the appellant, and several of the assignments complain of omissions in certain paragraphs of the charge.

Mere omissions in the charge cannot be made a ground of complaint in this court, where no special charges for the purpose of curing the defects were requested. Van Geem v. Cisco Oil Co. (Tex. Civ. App.) 152 S. W. 1108.

The first paragraph of the court’s charge is:

“A high degree of care is that degree of care which a very cautious, careful, and prudent person would exercise under the same or similar circumstances, and a failure to use a high degree of care, where required by law to do so, is negligence.”

In subsequent parts of the charge the court more than once specifically charges the jury that it was the duty of the appellee to use the degree of care defined in the first paragraph.

The third paragraph is:

“Ordinary care is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, and the failure to use ordinary care is negligence.”

In subsequent parts of the charge the jury are instructed that the appellant was required to use ordinary care only.

The fourth paragraph is:

“Contributory negligence is such want of ordinary care oh the part of the person injured as, concurring with the negligence of the party causing the injury, proximately helps or contributes to cause the injury complained of.”

The fifth paragraph correctly defines proximate cause, and instructs the jury that it must appear from the evidence that the injury was the natural and probable sequence of the negligence, and ought to have been foreseen as likely to occur by a person of ordinary prudence in the light of attending circumstances. The definitions given by the court in each instance are substantially correct and generally comply almost literally with the definitions of such terms as found in the decisions of this state. M., K. & T. Ry. Co. v. Russell, 8 Tex. Civ. App. 578, 28 S. W. 1042; Texas & Pacific Ry. v. Curlin, 13 Tex. Civ. App. 505, 36 S. W. 1003; M., K. & T. Ry. Co. v. Miller, 8 Tex. Civ. App. 241, 27 S. W. 905; H. & T. C. Ry. Co. v. Dotson, 15 Tex. Civ. App. 73, 38 S. W. 642; M., K. & T. Ry. Co. v. Wolf, 40 Tex. Civ. App. 381, 89 S. W. 779; Parks v. San Antonio Trac. Co., 100 Tex. 222, 94 S. W. 331, 98 S. W. 1100; Ebert v. G., C. & S. E. (Tex. Civ. App.) 49 S. W. 1105.

Appellant insists that the use of the words “by a person of ordinary prudence,” in the fifth paragraph of the charge, should be construed to apply to the degree of care required by the appellee. Taking the charge as a whole, this will be a strained construction. In the fifth paragraph the court did not undertake to state the degree of care required by either party, but this was repeatedly done elsewhere in the charge. In our opinion, the objections of appellant to the various paragraphs of the charge are hypercritical, and the matters pointed out as errors did not amount to such a denial of the rights of the appellant as was reasonably calculated to cause or did cause the rendition of an improper verdict.

After a careful review of the entire record, we are convinced that no other verdict could have been justly rendered. The great preponderance of the evidence shows that appellant’s case is a deliberate attempt to defraud, and that her alleged suffering was in the main malingering. It cannot be denied that she was to some extent afflicted, but the testimony adduced in behalf of the appellee was sufficient to convince, and evidently did-convince, the jury that her condition was not due to any negligence on the part of appellee or its servants and employés. Appellant admitted upon the stand that she was addicted to the use of intoxicating liquors, and had been for years. Several peace officers testified to having arrested her in a drunken condition upon the public streets of her town. Unimpeached physicians testified that the ulcers and fragments of bone which worked through the skin of her lower limb was due to syphilis. Her story, in which she details the purpose, the circumstances, and the result of her trip to Lindsay, has many of the features of a fairy tale, and the contradictions, brought about by the introduction of her application to the insurance company for support, by reason of her disability, all tend to sustain the appellee’s contention. Aside from the attacks made upon the charge of the court, the appellant does not complain upon any other ground, and the sufficiency of the evidence to sustain the jury is not questioned.

Believing that a fair solution of the issues presented has been arrived at, and because no reversible error is apparent upon the face of the record, the judgment is affirmed.


author: HIGGINS, J.

text:
    KOHLBERG v. AWBREY & SEMPLE.
    (No. 336.)
    (Court of Civil Appeals of Texas. El Paso.
    April 30, 1914.
    Rehearing Denied May 28, 1914.)
    1. Principal and Agent (§ 22) — -Existence of Relation — Evidence of Acts and Declarations of Agent.
    In an action for the purchase price of coal which plaintiffs claimed they had furnished to defendant’s agent, defendant claimed that the alleged agent was an independent contractor, and that he had been engaged by her husband to operate the lighting and heating machinery for a hotel as an independent contractor at a certain rate per month, and that after her husband’s death the arrangement was continued by mutual consent. Held, that testimony by the alleged agent as to conversations between himself and defendant’s husband showing the contract and relationship between the parties was not inadmissible as hearsay, but original and primary evidence.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.]
    2. Witnesses ' (§ 149) —Competency —Deceased Person.
    Such testimony is not inadmissible under Rev. St. 1911, art. 3690, declaring that, in actions by or against executors, etc., neither party shall be allowed to testify as to any transaction with, or statement by, the testator, etc., for, the action being for the purchase price of coal furnished after the death of defendant’s husband, the fact that she succeeded to his title and continued his contract does not render evidence as to his statement showing the nature of the contract inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §& 555, 556, 558, 580, 562, 563, 570, 651, 652; Dec. Dig. § 149.]
    3. Principal and Agent (§ 20) — Evidence-Admissibility.
    Defendant having pleaded that the status originally assumed by the alleged agent was by mutual consent continued after her husband’s death, such testimony is admissible to establish the relation of agency.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 37, 38; Dec. Dig. § 20.]
    4. Evidence (§ 425) — Parol Evidence to Vary a Written Instrument.
    In an action for the purchase price of coal furnished a party having charge of the heating and lighting of a hotel, where, the question was whether such purchaser was an independent contractor or the agent of the hotel proprietor, the purchaser may testify that a note given by him in connection with his business was really the obligation of the proprietor, and that it was understood the proprietor should discharge it, without violating the parol evidence rule.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1862; Dec. Dig. § 425.]
    5. Principal and Agent (§ 22) — Evidence —Admissibility.
    Agency cannot be established by declarations of the agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.]
    6. Appeal and Ebror (§ 1003) — Review— Vebdicts.
    A verdict against the weight and contrary to the overwhelming preponderance of the evidence cannot stand on appeal.
    [Ed. Note. — For other cases, see Appeal and Error,-Cent. Dig. §§ 3938-3043; Dec. Dig. § 1003.]
    7. Principal and Agent (§ 23) — Actions— Evidence.
    In an action for the purchase price of coal claimed to have been furnished to defendant’s agent, evidence held insufficient to show the relationship of principal and agent.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.]
    8. Estoppel (§ 56) — Equitable Estoppel.
    Where it did not appear that defendant held out an independent contractor as her agent, or that plaintiffs -were induced to extend him credit for that reason, defendant cannot be held liable for his debts on the theory of estoppel, for an estoppel in pais can never arise, unless the party seeking to avail himself thereof was induced to act upon the representations of the opposite party.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 142; Dec. Dig. § 56.]
    Appeal from District Court, El Paso County ; M. Nagle, Judge.
    Action by Awbrey ■& Semple against Mrs. Olga Kohlberg, who impleaded A. T. Sam-worth. From a judgment for plaintiff, and for the impleaded defendant, defendant appeals.
    Reversed and remanded.
    Defendant assigned error upon the admission of testimony by Samworth that it was agreed between him and her husband that her husband should discharge a note given by Samworth to the City National Bank, which testimony was offered to show that the arrangement between Samworth and defendant’s husband was that of principal and agent.
    Turney & Burges and Goldstein & Miller, all of El Paso, for appellant. Frank Feuille, Jr., A. R. Grambling, Jno. L. Dyer, C. W. Croom, and Coldwell & Sweeney, all of El Paso, for appellee.

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

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

   HIGGINS, J.

Awbrey & Semple sued Mrs. Olga Kohlberg to recover the sum of $1,043.-17, the purchase price of coal alleged to have been sold and delivered to her during June, July, and August, 1910. The petition was in the ordinary form upon verified account for goods sold and delivered, and it was further alleged that at the time mentioned in the account Mrs. Kohlberg was the owner and proprietor of and engaged in conducting and running the St. Regis I-Iotel, in the city of El Paso, during said months, and that plaintiffs delivered at the hotel the coal mentioned in the account, and that it was accepted, used, and appropriated by the defendant.

In Mrs. Kohlberg’s answer, she admitted that she was the owner of and conducted the St. Regis Hotel, and that it was necessary to use coal in the heating and lighting thereof, and that during the months mentioned coal was delivered at said hotel, but denied that she accepted the same or used or appropriated the same, except as hereinafter stated. She averred that about the month of October, 1909, her husband, E. Kohlberg (who died June 17, 1910), made an agreement with A. T. Samworth, by which Sam-worth agreed for one year from about November 7, 1909, for a fixed sum per month, to furnish all coal, oil, and labor necessary to run the heating and electrical plant of the hotel, and under this • agreement Sam-worth took possession of the electrical and heating plant as an independent contractor, and as such, and on his own account, up to September 1, 1910, furnished the coal, oil, other supplies, and labor necessary to heat the hotel, and to run the heating and lighting plants thereof, and that the fixed sum so agreed to be paid by E. Kohlberg to Sam-worth were paid promptly,, and that such contract, by the consent of all parties, was continued in force after the death of E. Kohl-berg, and during all of this time Samworth, with full knowledge on the part of plaintiffs, and as an independent contractor, bought the coal referred to in plaintiff’s suit, and not as agent of E. Kohlberg, or Mrs. Olga Kohlberg.

Awbrey & Semple, by supplemental petition, denied the facts pleaded by Mrs. Kohl-berg above set forth, and averred that in the purchase of the coal Samworth was acting as the agent of Mrs. Kohlberg; and they further averred that the coal was delivered, accepted, and receipted for at the St. Regis Hotel by persons employed and working at the hotel, and the same was used in the heating plant, that Mrs. Kohlberg held out Samworth and such other persons at said hotel so as to lead plaintiffs and others to believe that they were her agents, and that Samworth and such persons ordered said coal, and thereby Mrs. Kohlberg was estop-ped to deny the agency and authority of the parties to purchase said coal.

Mrs. Kohlberg, by supplemental answer, denied the facts pleaded and relied upon by-plaintiffs as estopping her to question Sam-worth’s agency.

Samworth, in answer to the cross-action of Mrs. Kohlberg, pleaded the two-year statute of limitation, and further averred his connection with both of the Kohlbergs to be that of agent, and denied that his connection with the matter in controversy was as an independent contractor.

Upon the issues thus raised by the pleadings, the court instructed the jury to find in favor of Awbrey & Semple against Mrs. Kohlberg, if they found, first, that Samworth was her agent and authorized by her' to purchase the coal, or, second, if they found that he was not in fact such an agent, but that Mrs. Kohlberg had held him out • as such agent so as to estop her from denying, his authority. The jury was further instructed, in the event they found a verdict in favor of Awbrey & Semple against Mrs. Kohlberg, to then consider the cross-action of Mrs. Kohl-berg against Samworth, and, if they found that he was an independent contractor, to find a verdict in her favor over against Sam-worth, and, if they found that he was not an independent contractor, but was acting simply as agent, then to return a verdict in Samworth’s favor. Verdict was returned in favor of Awbrey & Semple against Mrs. Kohlberg, and in favor of Samworth upon the cross-action of Mrs. Kohlberg. Prom the judgment entered upon this verdict, Mrs. Kohlberg prosecutes this appeal.

Error is assigned to the admission in evidence of the testimony of Samworth relating to conversations had between E. Kohl-berg and himself showing the contract and relationship between the parties; the same supporting his and plaintiff’s contention that, in operating the heating and electrical plants of the hotel and purchasing the coal, Sam-worth had acted as an agent, rather than as independent contractor. The objection is made that it was hearsay. Clearly it cannot be so regarded, for it was original and primary evidence of the status originally occupied by Samworth, which status, Mrs. Kohlberg alleged, was continued by mutual consent after the death of her husband.

It is next contended the testimony was admitted in violation of article 3690, R. S. 1911, which reads;

“In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

The exceptions mentioned in the statute will not be extended so as to embrace by implication a class of persons not specifically named. Newton v. Newton, 77 Tex. 508, 14 S. W. 158; Wootters v. Hale, 83 Tex. 564, 19 S. W. 134.

This is a suit by Awbrey & Semple against Mrs. Kohlberg, in her individual capacity, to recover the purchase price of coal alleged to have been sold to her individually after the death of her husband, and delivered to and used by her in connection with the operation of the St. Regis Hotel, which she individually owned and was conducting, It was not a suit against her as an executor, administrator, or guardian, in which judgment might be rendered against her as such, nor was it a suit against her as the heir or legal representative of E. Kohlberg arising out of any transaction with him. The whole theory of appellee’s suit is founded upon the contention that she individually was the owner of and was conducting the hotel, and the coal was sold and delivered to her as such, and that in the purchase of the same she acted through her real or apparent agent; Samworth. That she may have succeeded to the title and management of the hotel as an heir or devisee of her husband does not in any wise alter or affect the alleged facts upon which appellees base their suit. The provisions of the statute quoted have no application. Harris v. Warlick, 42 S. W. 356; Bush v. Barron, 78 Tex. 9, 14 S. W. 238; Hoxie v. Bank, 20 Tex. Civ. App. 484, 49 S. W. 639.

As to the further contention that the conversation was not binding upon or admissible against Mrs. Kohlberg, in her individual capacity, it is sufficient to say that according to her pleadings the status originally assumed by Samworth, by mutual consent, was continued after her husband’s death, and such conversation was therefore admissible for the purpose of showing whether his status originally was that of an agent or independent contractor.

This was not a suit by the bank based upon the written instrument referred to in the tenth, eleventh, and twelfth assignments, and the rule which forbids the introduction of parol evidence to contradict, vary, or explain the terms of a written contract is inapplicable. Moore v. Williams, 26 Tex. Civ. App. 142, 62 S. W. 977; Hughes v. Sandel, 25 Tex. 165; Jones on Ev. (2d Ed.) par. 452. It could be contended with equal plausibility, if A. and B. execute a note to C., without anything upon the face thereof to indicate A. was surety for B., that in a collateral contest the rule indicated would preclude showing the status of A. to be that of surety. The second proposition under the twelfth assignment, that it was immaterial whether Sam-worth read the order or not, is overruled. It was admissible for the purpose of explaining the circumstances under which he obtained the $600 from the City National Bank.

The statements of Samworth to Awbrey tending to show that he was an agent, the admission of which is made the basis of the thirteenth and fourteenth assignments, seem to be objectionable; and upon retrial the possibility of error in this respect should be avoided.

It is next and last insisted .that the verdict is against the weight and contrary to the overwhelming preponderance of the evidence. A careful consideration of tie evidence discloses this contention to be well founded, and the verdict unjust. In such case the courts have never hesitated to set the same aside. Railway Co. v. Schmidt, 61 Tex. 285; Zapp v. Michaelis, 58 Tex. 275; Short v. Kelly, 62 S. W. 944. It will serve no useful purpose to at length discuss the probative force of the evidence, and, in view of retrial, improper to do so, and we will therefore state the reasons for the conclusion reached as briefly as possible.

As to the issue of Samworth’s agency vel non, he testified that Mr. Kohlberg and he were friends; that in 1904 he installed the machinery for Kohlberg in the St. Regis Hotel; that in 1909 Kohlberg was having a great deal of trouble in running the heating and electrical plant and reguested him to take charge and run it for him, but he declined to do so; that, upon Kohlberg’s insistence, he made an estimate of the cost of labor and supplies necessary to run it and submitted it to Kohlberg; that he figured the cost at $550 per month, without allowing any compensation for himself; after making this estimate^ he undertook, in November, 1909, as Kohlberg’s agent, gratuitously and because of his friendship for Kohlberg, to run the heating and electrical plant, furnishing all labor and supplies, for $550 per month; that he was paid the $550 per month, out of which he paid the bills; that for a time he was able to pay the bills with this amount, but in January, 1910, he began to run behind. It is shown that about May, 1910, he was behind with his bills, and was being pressed for payment. He continued to fall behind, and by August 19, 1910, he was about $1,000 behind, and for some time Awbrey & Semple had been pressing him. Upon the date last mentioned Awbrey & Semple declined to furnish him more coal.

The theory that the relationship between Samworth and Kohlberg was simply that of principal and agent is utterly inconsistent with the facts testified to by Samworth himself. That he should have been content to accept only $550 per month in the capacity of agent, when his expenses were exceeding that sum, and his creditors harassing and pressing him for payment, is contrary to all human experience. Upon a fair and unbiased consideration of the evidence, reasonable minds cannot possibly differ in the inevitable conclusion that Samworth was an independent contractor.

Such being his true status, the Kohl-bergs would nevertheless be liable if they held him out as their agent, with apparent authority to purchase coal, and Awbrey & Semple had relied and acted upon same. Such issue is raised by the pleadings, and was submitted to the jury; but, upon this phase of the case, the verdict is without vestige of evidence to support it in an-essential particular. In such case, when authority is in fact lacking, liability is predicated upon an estoppel in pais. Tres Palacios Rice & Irr. Co. v. Eidman, 41 Tex. Civ. App. 542, 93 S. W. 698. But an estoppel in pais can never arise, unless the party seeking to avail himself of the benefit of the doctrine has been induced to act upon the representation, and this record will be searched in vain for a shadow of evidence that Awbrey & Semple ever relied upon any act or representation of the Kohlbergs in holding out Samworth as their agent, or that they were thereby induced to extend credit. Indeed, it may be further doubted whether there is any evidence of a holding out and representation of agency. All the facts in the record tending to show the same are equally consistent with the idea that he was an independent contractor. If the facts here disclosed could be treated as a representation of agency, then, in dealing with an independent contractor, one will always labor under the danger of being held responsible for his bills, upon the theory that he had. been held out as an agent.

Reversed and remanded.


author: GARL, X'

text:
    ORTIZ v. WALKER.
    (No. 5313.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.)
    1. Appeal and Error (§ 714) — Review — Record — Consideration.
    An appeal from a judgment affirming a judgment in justice court will not be dismissed, though the record did not show that the district court, to which the action was appealed, had jurisdiction, where the defects are supplied by certified copies.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2958-2963; Dec. Dig. § 714.]
    2. Appeal and Error (§ 758) — Briefs — • Sufficiency.
    An assignment of error in the brief should correspond with the assignments in the motion for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3093; Dec. Dig. § 758.]
    3. Work and Labor (§ 28) — Actions — Findings — Sufficiency.
    In an action for work and labor done upon defendant’s well, evidence held to support a verdict for plaintiff and not to show that plaintiff guaranteed any flow of water, or that no payment was to be made unless the well was satisfactory to defendant.
    [Ed. Note. — For other cases, see Work and Labor, Cent. Dig. §§ 17, 55; Dec. Dig. § 28.]
    Appeal from District Court, Webb County; I. F. Mullally, Judge.
    Action by B. F. Walker against S. P. Ortiz, begun in justice court and appealed to tlie circuit- court. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. G. Dickinson, of Laredo, for appellant. T. C. Mann, of Laredo, for appellee.

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

   GARL, X'

Appellee, B. E. Walker, sued appellant, S. P. Ortiz, and. recovered judgment for the sum of $165.50; the claim having been made in the pleadings for $166. A motion has been filed to dismiss the appeal because the record does not show that the district court has jurisdiction. But appellant has asked that the record and transcript be perfected by bringing into it the judgment rendered in the justice’s court, where the cause was first tried, and the appeal bond to the district court, which has appellate jurisdiction from the justice’s courts of Webb county. Certified copies of those proceedings are attached to the motion for certiorari. The district clerk certifies to the copies of the justice’s court judgment and the appeal bond, and further that these papers are on file among the papers in the cause as tried in the district court. We have concluded to consider these papers as supplying the deficiency in the record, and, when that is done, the jurisdiction of the district court is made to appear. The motion to dismiss the appeal is overruled.

The cause was tried before the court, and the only, assignment of error complains that the court erred in rendering judgment for appellee. Appellant contends that the uncontradicted evidence shows that upon a verbal contract appellee undertook to “fix and repair the well of Ortiz, and that he abandoned the well without fixing and repairing the well.” The assignment in the brief does not comply with the rules of briefing in this 'court, because it is not the same as that set forth in the motion for a new trial; but, since there is only one, we have considered the same.

The theory of appellant seems to be that the term “fix and repair” the well means that appellee was to fix and repair the same in a manner satisfactory to appellant, or to fix the well so that it would afford sufficient water for his stock.

Appellee testified that appellant had spoken to him a time or two about going out and fixing his well. About 10 or 15 days later, he saw appellee in Laredo and asked him if he could go out and fix his well. Walker said:

“Mr. Ortiz, you know my terms; you pay me $10 a day from the time I leave here (Laredo) until I . get back, and you furnish me the conveyance.”

He says Ortiz just remarked;

“If you do not go and fix the well, I will lose money.”

That is about all that was said at the time, but appellee w;as moved out by appellant’s teams and went to work. Ortiz was to furnish casing and such material as was needed in cleaning out and repairing the well. At the time Walker left the well, Ortiz was ill in a hospital at San Antonio. When Walker went down a considerable depth, he struck something he took to be a rock sticking out of the side of the hole. He had to pull the casing out, and put down four-inch casing so as to pass the obstruction. The other casing was five and three inches, and it would not go to the bottom. When he got down tot the bottom of the well, he found something that he could not get out nor pass. He pulled up the big easing and coupled it onto the little one and put the casing down as far towards the bottom as it would go. He says he pumped the well for 30 minutes without exhaust-) ing the water, but if he had pumped it longer the water would have been exhausted. He says he had done! all he could, so he put the pump back, coupled up the windmill, and left. Ortiz paid, along at first, $54.50. Walker says he began work March 28, 1912, and worked in all 22 days, and he says positively he was to get $10 per day. Ortiz claims that he was to pay him $10 per day for two days, and for each foot he dug the well he was to pay $1 per foot. The evidence is conflicting as to the water furnished by the well, as well as to the manner of payment; but the trial court has concluded that matter. The evidence is sufficient to sustain the verdict. There is nothing in the evidence, as disclosed by either party, that shows a contract of guaranty, and that nothing was to be paid unless the well was fixed in a manner satisfactory to appellant.

(Che judgment is affirmed.