author: MOURiSUND, J.

text:
    JOHN T. BARBEE & CO. v. AMERICAN BREWING ASS’N et al.
    (No. 6115.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1918.)
    1.Fraudulent Conveyances <&wkey;47 — Bulk Sales Law — Retaking Goods.
    Where a retailer obtained goods by falsely representing that he had the money to pay therefor, the wholesaler upon discovering the fraud could demand and accept a return of the goods without becoming liable to creditors under Rev. St. 1911, arts. 3971-3973, relating to sales in bulk.
    2. Fraudulent Conveyances <&wkey;269(l) — Bulk Sales Law — Pleading.
    In an action by a creditor under Rev. St. 1911, arts. 3971-3973, against one receiving stock in bulk, the defendant was entitled to prove, under a general denial, that there was no liability on its part under the Bulk Sales Law.
    3. Fraudulent Conveyances <&wkey;266(2) — Bulk Sales Law — Pleading—Sufficiency of Answer.
    In an action by a creditor under Rev. St. 1911, arts. 3971-3973, against one receiving stock in bulk, a special answer, as against a general demurrer, held to sufficiently allege that there had been no sale in violation of such statutes.
    Appeal from Cameron County Court; H. L. Tates, Judge.
    Consolidated actions by the American Brewing Association and the Brownsville Bank & Trust Company against P. Arismendi, Jr., John T. Barbee & Co., and H. H. Weller. Judgment for plaintiffs against the first two defendants, and John T. Barbee & Co. appeals.
    Reversed and rendered in part, and affirmed in part.
    Jones & George, of Brownsville, for. appellant.
    H. W. Williams, of Brownsville, for appel-lees.
   MOURiSUND, J.

This is an appeal from a judgment rendered in two cases which were consolidated. One of these, as made by the petition on which trial was had, was a suit by the American Brewing Association against P. Arismendi, Jr., for a balance of $364.09 and certain interest and attorney’s fees, alleged to be due on a promissory note to said brewing association by said Arismendi and his partner, Rosalio Gutierrez, for liquors sold them while they were in the saloon business. The other was a suit by the Brownsville Bank & Trust Company against said Arismendi, Jr., for $364.09, interest and attorney’s fees, alleged to be due upon a promissory note executed by said Arismendi and his partner, Gutierrez. In each case tho appellant, John T. Barbee & Co., and H. H. Weller were sued for the sum claimed against Arismendi; it being alleged that appellant or H. H. Weller purchased from Arismendi & Gutierrez goods, wares, and merchandise, of the aggregate value of $800, without complying with the provisions of the Bulk Sales Law, which goods, wares, and merchandise they then had in stock in their retail liquor business.

Appellant company, in addition to a general denial, specially pleaded that the goods v.-ere not bought by it, and not sold to it by Arismendi or Gutierrez, but were tbe property of appellant company, and tbe title to same bad never passed to said parties, in tbis, that said goods bad been contracted to said Arismendi & Gutierrez by tbis appellant and delivered to them upon tbe promise to pay \ cash tberefor and upon tbe promise and representation that said Arismendi & Gutierrez were solvent and able to pay cash tberefor, whereas in truth and in fact, at tbe time said goods were delivered, they were not solvent and able to pay cash tberefor, but were insolvent and unable to pay for said goods, and that, as soon as appellant discovered tbat said representations were untrue, it demanded tbe return of said goods, and said goods were then and there returned to it in whole packages and just as they were originally delivered to said Arismendi & Gutierrez. This answer was adopted by Weller.

Tbe trial resulted in a judgment in favor of tbe brewing association and tbe bank against Arismendi for tbe amount sued for, and in favor of each against appellant company for $249.95, and tbat they take nothing as against Weller.

Tbe judgment against appellant is based on the finding by tbe trial court tbat certain goods of tbe value of $499.90 sold by appellant to Arismendi & Gutierrez were reclaimed by appellant and surrendered by said parties, tbe court finding in tbis connection that tbe sale of tbe goods was induced by false and fraudulent representations by said parties to appellant’s agent to tbe effect tbat they were solvent, when in fact they were notoriously insolvent, and tbat about 30 days after said goods were in tbe place of business of said parties appellant discovered tbat such representations were false, and as soon as possible reclaimed such goods, or a part thereof, which were surrendered by said Arismendi & Gutierrez. The goods thus reclaimed were sold by appellant to H. H, Weller for $499.90, and at tbe date of trial all of tbe same bad passed from tbe possession of Weller.

Tbe findings of fact are lengthy and show fully the gross fraud which induced tbe appellant to part with its goods, but we have stated tbe substance thereof sufficiently for tbe purposes of tbis appeal.

Appellant’s assignments raise tbe issue tbat tbe findings of fact do not show a sale in violation of tbe Bulk Sales Law.

It is well settled by our decisions tbat appellant, upon discovering tbe falsity of the representations, was entitled to recover by suit tbe goods delivered by it to Aris-mendi & Gutierrez, and could have done so, even if the same bad been transferred to an assignee for tbe benefit of creditors, or delivered to creditors in payment of their claims. Simpkins on Contracts and Sales (3d Ed.) pp. 900-902. It is held tbat under such circumstances tbe title does not pass. Articles 3971, 3972, and 3973, Bev. St. 1911, relating to sales in bulk, were enacted for tbe prevention of fraud, and not for tbe purpose of preventing sellers from repossessing themselves of goods obtained from them by fraud. Such statutes would not have prevented appellant from procuring a judgment for its goods under tbe facts proven, and it necessarily follows tbat they would not render appellant liable by reason of tbe fact tbat tbe return of tbe goods was procured without the aid of a court, pursuant to a rescission of the contract. Tbe transaction did not constitute a sale or transfer within the meaning of said statutes.

Tbe appellees, by cross-assignment, complain of tbe overruling of their general demurrer to appellant’s answer. Tbis is not a suit by appellant to rescind the sale of tbe goods, but is one in which appellees undertook to prove a sale in violation of the Bulk Sales Law. We believe appellant was authorized, under its general denial, to prove tbat there was no liability on their part under tbe Bulk Sales Law. In addition the special answer, as against a general demurrer, sufficiently alleged that there could have been no sale in violation of the Bulk Sales Law, as tbe title bad never passed.

Having held tbat appellant is not liable, it follows that tbe cross-assignment complaining of the refusal to award a judgment against Weller must be. overruled, and it is unnecessary to decide what appellees’ rights would have been as to him bad appellant bought in violation of tbe Bulk Sales Law.

The judgment will be reversed in so far as it awards a recovery against appellant, in favor of each appellee, and judgment rendered tbat each of them take nothing as against appellant. In all other respects the judgment will remain undisturbed.
      ©x»For other eases see same topic and- KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    READ v. FARQUHARSON.
    (No. 8955.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 14, 1918.)
    1. BROKERS <&wkey;86(l) — Compensation — Agreement.
    In an action by a broker for compensation, evidence held to sustain a finding that there was no express contract to pay a commission.
    2. Brokers <&wkey;82(4) — Compensation — Action por.
    Where broker sued for compensation upon an alleged express contract alone, he could not recover on quantum meruit or an implied contract to pay the reasonable value of his services.

      Appeal- from Wichita County Court; Harvey Harris, Judge.
    Action by D. B. Read against O. B. Farqu-harson. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jouette M. Bonner and W. T. Carlton, both of Wichita Falls, for appellant.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellee.
   BUCK, J.

This is an appeal from a judgment denying D. B. Read recovery for a claimed commission alleged to be due from the defendant, O. B. Farquharson, arising out of the sale of a certain oil and gas lease belonging to defendant, and which had been listed with plaintiff by defendant, and which plaintiff claimed was sold through his efforts as a broker. The cause was submitted on special issues, and the jury found adversely to plaintiff.

We have carefully considered the statement of facts and are unable to reach the conclusion that the evidence is not sufficient to sustain the verdict and judgment. Plaintiff sued upon an alleged express contract alone, and hence could not recover on quantum meruit, or an implied contract to pay the reasonable value of plaintiff’s services. While plaintiff swore that the defendant agreed to pay 5 per cent, commission, and testified to facts tending strongly to show that he secured a purchaser and was the inducing cause of the sale, yet defendant testified: That -during the preliminary negotiations plaintiff did not disclose that he was acting in the capacity of a broker, and that, when he did disclose the fact -that he was a broker and was expecting a commission, defendant informed him that he would pay commission only in the event the lease sold for $40,000. That later, when plaintiff told him that his parties would not pay $40,000, but that he (plaintiff) thought he could interest them if defendant would reduce the price to $15,000, defendant refused to sell at that price and pay a commission, and plaintiff replied: ‘Well, I am handling some other property, and we will say no more about the commission.” That defendant said: “All' right, if those people will come across with $15,000' spot cash,' I will accept it, and that is for immediate acceptance and no time limit on it.” Plaintiff then said, “I will take it up with them right away.” The property was sold -for $10,000, of which amount $3250.00 was paid, by defendant in clearing the title.

The only other witness who testified in the case was F. K. Haskell, connected with the purchaser, the Empire Gas & Fuel Company. AVhile his testimony tended strongly to show that the property was sold through the efforts of the plaintiff, he stated that Mr. Cousins of Mineral Wells finally closed the deal. He did not testify to anything about the agreement or contract between the parties to the suit as to a commission.

In this condition of the record, we are of the opinion that all assignments should be overruled, and the judgment affirmed, and it is so ordered.

Judgment affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CONNER, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. MOREHEAD.
    (No. 8916.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 2, 1918.
    Rehearing Denied Dec. 21, 1918.)
    1. Carriers <&wkey;219(5) — Live Stock — Injuries — Liability: or Initial Carrier.
    Although initial carrier limited its liability to its own lines, where it did not require connecting carrier to furnish an unloaded car, as required by Arernon’s Sayles’ Ann. Civ. St. 1914, art. 6688, it was liable, whether injuries to shipment of horses due to defects in its car occurred on its lines or on lines of connecting carrier, in. view of articles 708 and 66S7.
    2. Carriers <&wkey;117 — Furnishing Suitable Cars — Duty.
    The duty of railway common carriers to furnish suitable cars is absolute, in view of Arer-non’s Sayles’ Ann. Civ. St. 1914, art. 6687.
    3. Carriers <&wkey;219(2) — Live Stock — Use or Cars or Connecting Carriers.
    Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 66S7, it is the duty of the connecting carrier to which a loaded car of stock is delivered to receive it as loaded, if suitable, and forward it; the initial carrier having the privilege of furnishing its own cars beyond the end of its line.
    4. Appeal and Error <&wkey;910 — Absence or Evidence — Presumption.
    Where there is no evidence that defendant initial carrier required connecting carrier to furnish an unloaded car, as required by Vernon’s Sayles* Ann. Civ. St. 1914, art. 6688, the court on appeal may, in aid of judgment below, assume that defendant’s loaded car was delivered to connecting carrier pursuant to an agreement.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Suit by Joe Morehead against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Thompson, Barwise & Wharton, of Ft. Worth, E. B. Perkins, of Dallas, and George Thompson, Jr., of Ft. Worth, for appellant.
    Harris & Burton, of Ft. Worth, for appel-lee. - :
   CONNER, C. J.

Appellee instituted tills suit to recover damages to a shipment of one car load of horses from Hamilton, Hamilton county, Tex., to North Ft. Worth, Tex. The contested issue is one of liability. The undisputed facts, which are agreed upon, are to the effect that the appellee was the owner of the horses in question and that he desired to ship them to the Ft. Worth market, and to that end applied to the agent of the appellant company for a car within which to ship the same: that a car was selected by the agent, and that neither the agent nor the plaintiff discovered any defect therein; that the car was loaded with appellee’s horses about 5 p. m. at Hamilton, and arrived at the town of Stephenville, Erath county, about 9 p. m. of the same day; that at Ste-phenville the car and the horses were delivered to a connecting carrier, viz. the Ft. Worth & Rio Grande Railway Company, the line of which extended from Stephenville to North Ft. Worth; that when the horses were delivered to the consignee at North Ft. Worth they were found to have been damaged in the amount of the judgment below.

It was and is admitted that the damage was proximately caused by defects, not necessary to describe, in the car in which the horses had been transported from- Hamilton. It is further undisputed that at the time of the shipment from Hamilton appellee entered into a written contract which limited appellant’s liability to its own line of road; appellant’s undertaking, by the terms of the contract, being merely to transport the horses to Stephenville and there deliver to its connecting carrier. The jury found, in answer to special issues, among other things, to the effect that ordinary care had been exercised at Hamilton in the selection of the car, and that there was no understanding or agreement between appellee and the appellant company that the car selected should be furnished for the entire trip. The written contract is entirely silent on the question.

The question for our determination is whether, under the circumstances, appellant is liable for the injuries caused by the defects in the car, which, it is admitted, existed at the time the car was furnished. We have concluded that this question must be answered in the affirmative.

We are of the opinion that the duty of a railway common carrier to furnish suitable cars for the transportation of freight delivered to it for shipment extends beyond the mere exercise of ordinary care. The duty in this respect, we think is absolute. It is an express requirement of our statute, to be excused only on grounds relieving the common carrier from liability as an insurer. In 4 Vernon’s Sayies’ Civil Statutes, art. 6687, in prescribing the duties of railway companies, it is among other things, declared to be the duty of every railroad “to furnish all necessary and suitable cars and vehicles of transportation for all freight offered or tendered, or to be offered or tendered, to it for shipment,” etc. See, also, Hunt v. Nutt et al., 27 S. W. 1081; Gulf, C. & S. F. Ry. Co. et al. v. Boger, 169 S. W. 1093; Hutchinson on Common Carriers, § 293; Moore on Carriers, § 12.

Indeed, appellant makes no contention in this case that it is to be excused on the ground that the agent at Hamilton in selecting the car in question exercised ordinary care, or that the company was otherwise not guilty of negligence. The sole contention in this respect is that, inasmuch as there was no agreement or understanding between ap-pellee and the agent of the appellant company to furnish the car beyond Stephenville, and inasmuch as the proof fails to affirmatively show, which is the fact, any injury to appellee’s horses while in transit between Hamilton and Stephenville, that the mere fact that the appellee, with the concurrence of the agent of the Ft. Worth & Rio Grande Railway Company at Stephenville, used the same car in the further transportation of the horses, does not create a liability on the part of appellant for the damages proven.

It is true that the written contract executed by appellant at Hamilton fails to specify that the car in question should, or might be, used beyond Stephenville, nor did appellee, in testifying as is state'd, specifically so state. But the evidence shows without dispute that appellant had no facilities of any .kind or character at Stephenville for loading or unloading freight. It had no agent, employs, or servant at that point; on the contrary, the proof is that for some 10 miles beyond Stephenville it was compelled to use the track of the Ft. Worth & Rio Grande Railway Company to enter the city, and on the occasion in question it so entered and delivered on a side track of the Ft. Worth & Rio Grande Railway Company, the car in question while loaded with appellee’s horses. There is no evidence that appellant, through any agent or servant, requested that the horses should be unloaded and placed in another car, or that a protest of any kind was made to the further use of the same. By reference to the article of our statute hereinbefore cited (Vernon’s Sayies’ Revised Statutes, art. 6687), it may be seen that, for the purpose of facilitating the movement, preservation, and exchange of freight, it is, among other things, further provided that it shall be the duty of a railroad company, not only to furnish suitable cars, but also to transport with reasonable care and diligence all freight tendered to it for transportation, and, in the language of the statute:

“If destined to a point beyond the line of such railroad, then to transport and deliver within a reasonable time such freight in such loaded car or cars to the connecting carrier forming any part of the route over which such shipment is made, or to be made, for the purpose of transportation by such connecting carrier on to the destination of such freight, or for delivery by it to the connecting line or lines forming any part of the route over which same is to be transported to its ultimate destination; and it shall likewise be the duty of each connecting line of railroad engaged in such transportation, as to all such service to be performed, as to all such freight and cars in which the same is carried within this state, to receive and transport within a reasonable time such loaded car or cars offered or tendered to it, if in a suitablS condition for movement, and deliver the same at the destination thereof, if destined to a point upon its line of railroad,” etc.

While it has been held that a carrier cannot be compelled to furnish its own cars beyond the end of its own line (see Gulf, C. & S. F. Ry. Co. v. State, 56 Tex. Civ. App. 353, 120 S. W. 1028), yet from the statute we have quoted it is certainly the privilege of a earnier to do so. It was the evident purpose of the Legislature that this should be done, and when a loaded car, as in the case before us, is actually delivered to a connecting carrier, the statute certainly made it the duty of the connecting carrier to receive the car as loaded, if suitable, and forward the freight in the direction of .the point of its destination.

The record in this ease is silent as to the course of dealing between the appellant railroad and the Ft. Worth & Rio Grande Railway Company in cases of the kind; that is to say, we are not enlightened by the evidence upon what terms, if any, exchange of cars by the companies was made. From the contract we do know that the companies participated in the through rate specified, but whether the appellant company, when it delivered a loaded car of freight to the Ft. Worth & Rio Grande Railway Company required the latter company to furnish appellant with an unloaded car as provided in article 6688, 4 Vernon’s Say les’ Stat., or whether there was some mutual agreement fixing a standard of compensation, is not made to appear, and we think, in view of the circumstances already stated, that we may, in aid of the judgment below, safely assume that appellant’s loaded car was delivered to the Ft. Worth & Rio Grande Railway Company at Stephenville pursuant to some agreement or arrangement between the railroad companies.

At all events, as before stated, it seems undisputed that the car as loaded was delivered to the Ft. Worth & Rio Grande Railway Company at the time with the knowledge that it was intended for immediate through transportation to Ft. Worth. Under such circumstances, we think, it could well be, and probably was, in contemplation of the servants of the appellant company at Hamilton," at the time he furnished the car, that it would be so used, even though no express agreement covering the subject was made with appellee. This being true, it follows, without the necessity of further discussion, that appellant is liable for the damages proximately caused by the defective car, even though the injuries may have actually occurred on the line of the Ft. Worth & Rio Grande Railway Company, and notwithstanding the contract limiting appellant’s liability to its own line of road.

Appellant cannot contract so as to relieve itself of its common-law liability for negligence, either actual or to be imputed by law from a violation of a statute. See Vernon’s Sayles’ Rev. Stat., art. 708; Hunt v. Nutt, 27 S. W. 1031; Alabama & V. Ry. Co. v. Searles, 71 Miss. 744, 16 South. 255.

We conclude the judgment must be affirmed ; and it is so ordered.

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


author: HODGES, J.

text:
    S. SAMUELS & CO. v. MORGAN & FRIEDLANDER et al.
    (No. 1990.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1918.
    Rehearing Denied Oct. 10, 1918.)
    Justices of the Peace <&wkey;159(l) — Appeal to County Court — Bond.
    Plaintiff, who recovered in justice court against one of the joint defendants, but lost against the other, had a right to appeal without bond to the county court, since the purpose of an appeal bond is to secure the successful party in the preservation of what he recovered in the justice court, so that, unless the judgment awards defendant some relief amounting to more than a defeat of plaintiff’s suit, defendant has nothing requiring the protection of such a bond.
    Appeal from Gregg County Court; E. M. Bramlett, Judge.
    Suit by Morgan & Friedlander and others against S. Samuels & Co. and another. From judgment in justice court for the named defendants, plaintiffs appealed to the eoun■ty court, which gave judgment for them against all defendants, and the named defendants appeal.
    Affirmed.
    M. L. Cunningham, of Longview, for appellants.
    W. C. Shoults, of. Longview, for appellee Morgan & Friedlander.
    Riley Strickland, of Longview, for appellee Cain.
   HODGES, J.

The appellees sued W. T. Cain and the appellants Samuels & Co. in the justice court of precinct No. 1 of Gregg county for the conversion of a bale of cotton alleged to be of the value of $102. Cain resided in Gregg county, and the appellants composing the firm of Samuels & Co. resided in Harrison county. Among other defenses, Samuels & Co. filed a p-lea of privilege claiming tlie right to be sued in the county of their residence. In the trial in the justice court that plea was sustained, but judgment was rendered in favor of the appellees against Gain for the full amount sued for.

The appellees appealed without bond to the county court. Appellants Samuels & Co. there moved to dismiss the appeal because no bond had been filed. The motion was overruled, and the trial which followed resulted in a judgment in favor of the appel-lees against all the defendants ■ for the amount sued for. There was no error in overruling the motion to dismiss the appeal upon the ground that no bond had been filed. Since the decision in H. & T. C. R. R. Co. v. Red Cross Stock Farm, 91 Tex. 628, 45 S. W. 375, the right of a plaintiff who loses in the justice court to appeal without bond to the county court has been unquestioned. The fact that the plaintiff in this instance recovered a judgment against one of the defendants does not alter the rule. If the plaintiff recovers only a part of what he sued for, he may still appeal without bond. Edwards v. Morton, 92 Tex. 152, 46 S. W. 792. For the same reason, he may appeal in like manner if he recovers against only one of the joint defendants. The purpose of an appeal bond is to secure the successful party in the preservation of what he recovers in the justice court during the pendency of the litigation in the county court. Unless the judgment in the justice court awards the defendant some relief which amounts to more than a mere defeat of the plaintiff’s suit the defendant has nothing which requires the protection of such a bond. The evidence in this case was sufficient, not only to show a conversion by Samuels & Co. in Gregg county, but one in which they were jointly liable with their codefendant, Cain, who resided in that county:

The judgment of the county court will be affirmed.
      <§ns>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    BOYD v. HURD.
    (No. 6117.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 18, 1918.)
    1. Fixtuebs <&wkey;7— Conveyance by Deed of Land.
    The purchaser of land by virtue of his deed acquired title to a certain pump, rods, and trough which had been affixed to the realty so as to become a part thereof.
    2. Pleading- <&wkey;236(3) — Trial Amendment-Discretion of Court.
    Privilege to file trial amendment is dependent on discretion of trial court, and its denial is not error in absence of showing of abuse of such discretion.
    3. Sales <&wkey;149 — Bill of Sale — Fixtures to Realty.
    Bill of sale covering gasoline engine, pipes, pump, rods, and trough could not transfer such part of the property as had become part of the realty under the law of fixtures.
    4. Fixtures <&wkey;21 — Title to Personalty-Fixation to Land Sold.
    Title to personalty which had become part of realty was in vendor of land, snbiect to ven-dee’s right to pay the price, failing in which the title, free from any equity in the vendee, passed to his successor, with title to the fixtures constituting a part of the land.
    Appeal from Jim Wells County Court; L. Broeter, Judge.
    Suit by T. H. Boyd against G. W. Hurd, Jr. From judgment for defendant, plaintiff appeals.
    Judgment affirmed in part, and reversed and rendered in part.
    O. C. Forry, of McAllen, for appellant.
   SWEARINGEN, J.

This is a suit by T. H. Boyd, the appellant, to recover personal property from George W. Hurd, Jr. The cause was tried by the court without a jury, and judgment rendered in favor of the ap-pellee, who was defendant in the trial court.

Appellant alleged that the property, which consisted of a gasoline engine, a pump, iron pipe, pump rods, a water trough, and' some wire, were fixtures on the land subsequently purchased by him. It is alleged that the personal property described was affixed to the realty in 1912 by G. W. Hurd after purchasing the land on which a vendor’s lien was retained by the vendor of Hurd, and that by reason of the annexation and adaptation, as well as intention of the purchaser of the land, the personal property became a part of the realty, and passed with the title of the realty from Hurd to the appellant, Boyd, in October, 1917.

Appellee answered that the personal property was not a part of the realty, but that it had been severed in September, 1916, sold and delivered to him by him father, G. W. Hurd. It was alleged that appellee took immediate possession of the personal property, and remained in actual possession of it from the date of his bill of sale to the present time.

The court found in its filed conclusions of fact and law that the engine and wire never became a part of the realty. But also found that the trough, iron pipe, pump, and pump rods did become a part of the realty. Both findings are supported by the evidences.

In the fourth assignment complaint is made of the court’s finding that the gasoline engine was not a part of the realty. This assignment we overrule, because of our finding that there was sufficient evidence to support the trial court’s finding.

In the sixth assignment it is urged that the court erred in awarding to appellee the pipe, pump, rods, and trough, all of which the trial court found was a part of the realty, and had been from 1912 until after appellant purchased the land. This assignment is sustained. As stated above, there was evidence to sustain this said finding of the court. In view of this fact, appellant acquired title thereto by virtue of his deed conveying the land. Jones v. Bull, 85 Tex. 136, 19 S. W. 1031; Phillips v. Newsome, 179 S. W. 1123; Hutchis v. Masterson, 46 Tex. 551, 26 Am. Rep. 286; Brown v. Roland, 92 Tex. 54, 45 S. W. 795; Quinn v. Dickinson, 145 S. W. 994; Simpson v. Masterson, 31 S. W. 419.

The bill of sale evidencing the transfer of the gasoline engine to appellee was properly admitted in evidence, since it was not a part of the realty. The first assignment presenting the objection is overruled.

The second assignment, assailing the refusal of the trial court to permit the filing of a trial amendment, is overruled. The privilege of filing such pleading is dependent upon the discretion of the trial court, and no abuse of that discretion appears. Kenedy Pasture Co. v. State, 196 S. W. 288; Ferrell v. City of Haskell, 134 S. W. 784.

There was sufficient evidence to support the finding of the trial court that appellee was in actual possession of the property sued for. The third assignment assailing said finding is overruled.

The fifth assignment complains of the finding of the trial court to the effect that the bill of sale to appellee transferred to him all of the property described therein. This assignment is sustained. The bill of sale could not transfer that personal property which had become a part of the realty.

In view of the finding by the trial court that the pipe, pump, pump rods, and trough had become a part of the realty, the fact that appellee was in possession thereof and claiming them by virtue of a bill of sale from G. W. Hurd would not vest title in ap-pellee. The title was in Hurd’s grantor, subject to Hurd’s- right of payment, failing in which the title, free from any equity in Hurd, passed to appellant, and with the title to the land passed those fixtures found by the court to be a part of the realty. Phillips v. Newsome, 179 S. W. 1123.

The seventh assignment is also overruled, because the finding of the court that the wire was not a part of the realty is supported by the evidence.

The judgment of the trial court is affirmed in all respects, save and except in so far as it awards the trough, iron, pipe, pump, and pump rods to appellee, as to which, the court having found upon a sufficiency of evidence that they became a part of the realty when affixed to the land in 1912, the judgment is reversed, and judgment is here rendered that appellant recover possession thereof.

The judgment is affirmed in part and rendered in part. The costs incurred in this court are to be paid by appellee.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BAINEY, C. J.

text:
    TEXAS MIDLAND R. R. v. BROWN.
    (No. 8024.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 30, 1918.
    Rehearing Denied Jan. 4, 1919.)
    1. Railroads <&wkey;278(2) — Personal Injuries — Duty of Inspection.
    An employe of a third person engaged in unloading coal cars, injured while attempting to block a car after having released a defective brake, was not required to inspect the car before moving it, defendant knowing of the custom of allowing coal cars to move a short distance by gravity to facilitate unloading.
    2. Trial <&wkey;191(8) — Instructions — Assumption as to Pacts. .
    Where an employs of a third person was injured while blocking a coal car moving by gravity after plaintiff had released a defective brake, it was not error to refuse an instruction for defendant, erroneously assuming that plaintiff knew, or ought to have known, of the defective brake, and that he moved the car without inspection.
    3. Appeal and Error <&wkey;263(3) — Reservation of Objections — Refusal to Instruct.
    Refusal to give a correct charge in lieu of an erroneous one will not be considered, in the absence of a proper exception and assignment.
    4. Negligence &wkey;119(7) — Contributory Negligence — Pleading and Proof.
    In order for a defendant to recover on contributory negligence, he must prove negligence in the way he specially-pleaded it, and the court is restricted to grounds alleged in the answer.
    5. Trial <&wkey;191(8) — Instructions — Assuming Pacts.
    Where an employé of a third person was injured while attempting to block a moving car upon which the brake was defective, an instruction, assuming contributory negligence on plaintiff’s part in going in front of the car, was properly refused; evidence showing that plaintiff thought it necessary to act as he did to prevent accident to others on the track.
    6. Trial <&wkey;314(l) — Conduct of Trial Judge — Coercion of Jury.
    In a personal injury action against railroad company wherein the jury failed to agree, a statement by the judge after the jury had retired as to the desirability of bringing in a verdict held not coercive.
    7. Appeal and Error &wkey;>1170(6) — Reversal — Conduct of Trial Judge — Rules of Court.
    Court of Civil Appeals rule No. 62a, prohibiting reversals for errors of law by the trial court not calculated to cause rendition of an improper judgment, applies where the judge, after the jury had failed to agree, stated to them the desirability of bringing in a verdict; such statement not being coercive or persuasive in favor of either party.
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by Aubrey Brown by next friend against the Texas Midland Bailroad. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Coke & Coke, of Dallas, Dasliiell, Terry & Brown, of Terrell, and S. W. Marshall, of Dallas, for appellant.
    B. Q. Evans, of Greenville, and W. A. Shields, of Houston, for appellee.
   BAINEY, C. J.

Aubrey Brown, by next friend, appellee, brought this suit against the Texas Midland Bailroad to recover damages in the sum of $40,000 for personal injuries. “He alleged that defendant operated a spur track on a steep downgrade going east along and upon Jordan street, and along the south side of a building occupied by Beeves Manufacturing Company, in Greenville, and that it had been the custom of employés of Beeves Manufacturing Company, when they had unloaded the east end of cars of coal into windows provided therefor, to loosen the brakes and cause the car to roll eastward until the coal in the west end was opposite the windows and then to throw on the brakes, stop the cars and finish unloading; that defendant’s agents and servants knew of this custom; that on the 24th day of February, 1917, plaintiff undertook to so move a coal car when partly unloaded, and after same was in motion discovered that the brake would not hold, because the pin was out of the cogwheel, making it impossible to stop the car, and, in trying to put some wooden blocks on the rails in front of the wheels, his foot was caught under one of the car wheels, causing the injuries alleged. Defendant answered by general demurrer and general denial, and specially that on the occasion complained of it placed the car alleged to have injured plaintiff, on the side track at Beeves Manufacturing Company’s plant, with its wheels scotched with solid blocks, making its position on said track secure, delivered same to the Beeves Manufacturing Company, of which plaintiff was an employé, and had full knowledge of the condition of said car, and the track on which same was situated, and of all conditions alleged to exist, in so far as they did exist, or could have known of them by the exercise of ordinary care, and was guilty of contributory negligence in attempting to move said car and in attempting to stop same under- the circumstances alleged.” A trial resulted in a verdict and judgment for appellee, from which appellant appealed.

The material allegations of appellee’s petition were substantially established.

Appellant presents its first and second assignments together, and complains that the court erred in not giving its special charge to find for the appellant “because the proof showed without contradiction that plaintiff did not use ordinary care to ascertain the conditions of the brake before attempting to remove the car,” and “because the uncon-tradicted evidence shows that plaintiff was guilty of contributory negligence in under - taking to -move the car in question on a steep downgrade in a thickly settled portion of Greenville, without knowing the condition of said brake on same, or with knowledge thereof.”

As we understand the contention of appellant in its first proposition, it is that the law, under the circumstances, made it the duty of appellee to inspect and examine the defective brake and discover if it was safe before attempting to move the car. The ap-pellee failed to inspect, but undertook to move the car before making an examination. But did the duty devolve on him to make such examination before so doing, or did he have the right to rely on the car being in such a condition as that the brake could be depended upon? We are inclined to the latter view, and that no duty of inspection of the car devolved upon appellee. The evidence shows that he was not warned of any defect in the brake, that he did not know of it, and was innocent of same being out of repair until the car failed to stop by use of the brake. It was customary for the railroad to place cars of coal on that track to be unloaded and it was the custom of employés of the Beeves Manufacturing Company to unload them in the manner that was being employed in this instance, which was known by appellant, and we fail to find any evidence which raises contributory negligence on the part of ap-pellee. Standing on the incline as the car was the appellee knew that if it got from under control and run down the incline it would be apt to collide with some one passing or smash up some property.

The third and ninth assignments relate to the refusal of the court to give special charge No. 3, which reads as follows:

“Gentlemen of the jury: You are instructed that, if the defendant, Texas Midland Bailroad, placed the car in question on the side track at Beeves Manufacturing Company’s place of business with a defective brake, as explained by the evidence; and if you further believe that the plaintiff was familiar with the use of such a brake, and the extent of the defect and .its effect upon lessening his ability to control said car with such brake, if put in motion; and if you further believe that the car was securely placed with blocks under the wheels to prevent its getting away or moving; and if you further believe that the defendant knew of the places of business, wagon yards, street crossings, and persons living along said side track, as alleged in his petition; and if you further believe that the plaintiff was in such a position with reference to said brake as that its condition was obvious and patent to him and right before his eyes; and if you further believe that he had already removed the blocks from under the wheels in a manner occasioned only by his desire to see if the brakes were set so they would hold the car after it was set in motion, and was conscious at the time of the fact that if the brake was not in good condition he could not control the car if it was set in motion, and under these circumstances he ordered the negro to rock the car, and thereby start it — he would be guilty of contributory negligence in not exercising ordinary care involved in looking at said brake, or taking hold of same for that purpose; and, if you so believe, you will find for the defendant. And if you believe from all the circumstances in evidence, including plaintiff’s three years’ service for Reeves Manufacturing Company, in which a part of his duties were to unload cars of coal on this same side track, and that plaintiff knew, or ought to have known, that it was possible for the brake on this car to be defective in the manner explained in the evidence, and, knowing of that possibility, undertook to move said car without ascertaining the condition of said brake after said car had been securely placed with wheels blocked on said side track, then you are instructed that plaintiff assumed the danger or dangers involved in moving said car without investigating the condition of the brake on same, and you will find for the defendant.”

There was no error in refusing to give this charge, because it fails to state the law correctly, in that it assumes that appellee knew of the defective brake, or ought to have known, and that he undertook to move said car without ascertaining the condition of said brake after said car had been securely placed with wheels blocked on said side track. Appellee had the right to assume that appellant had its car supplied with safety appliances, and it was not his duty to examine said car to ascertain a defective brake. As this charge was erroneous, it did not devolve upon the court to give a correct charge, there being no request so to do, and no bill of exception presented to comply with said request. The refusal to give a correct charge in lieu of an erroneous one will not be considered, in the absence of a proper exception and assignment. Hovey v. Sanders, 174 S. W. 1025; Walker v. St. Ry. Co., 151 S. W. 1142.

Appellant specially pleaded contributory negligence and specifically that appel-lee ‘‘also in attempting to stop same by placing his foot in front of the moving wheel” and his failure “to examine the condition of the said car.” In order for one to recover on contributory negligence he must prove negligence in the way it specially pleaded, and the court is restricted to grounds alleged in the answer. Railway Co. v. McClain; 80 Tex. 85, 15 S. W. 789.

The fourth error assigned is that the court erred in refusing to instruct the jury as follows:

“You are instructed in this case that to go in front of a moving car by the plaintiff is negligence, and, if the injury complained of in this case was caused by reason of his being in front of said car, that he was guilty of contributory negligence causing the injury by being in front of same, unless you further believe that his going in front of the moving car was for the purpose of saving human life, and, the evidence failing to show any one in peril of his life or serious injury, that plaintiff could not claim his position there to be the result of that degree of alarm for the safety of others which would cause him to overlook and forget his own safety.”

This charge assumes that appellee was guilty of contributory negligence when the evidence shows under the circumstances his placing himself in front of the car did not constitute negligence, and the court did not err in refusing said charge. The evidence shows that appellee thought it was necessary to act as he did to prevent accidents to persons passing along the street and damage to property.

Appellant complains of a talk made to the jury as follows:

“That upon the trial hereof the jury retired to consider their verdict about 3:30 o’clock p. m. on Friday, July 5, 1917, and about 6 o’clock p. m. were called in by the judge presiding, Hon. A. P. Dohoney, and stated, in answer to a question by the court, that they had agreed on liability, but could not agree upon the amount of same, and were permitted to go to their homes for the night; the court stating to them that the room provided for holding the jury together in was too hot, too close, and too small for the jury to get any rest and comfort during the night, if required to stay together, and for which reason he would permit them to separate and go to their homes, and required to return to court next morning at 8:30 o’clock and resume consideration of the case; that after said jury was released for the night, the judge presiding desired to return to his home at Paris, because of the illness of his father, and, this being the last case that could be called during the week, requested Judge William Pierson, who resides in Greenville, and is judge of the Eighth district court of Texas, to receive the verdict of the jury in case they desired to report during his absence, and in making said request advised Judge Pierson that the jury had already agreed upon the question of liability. This action of the judge presiding was not known to the defendant or its counsel until the next day, and at which time it was impossible to take any exception thereto, and upon the first opportunity thereafter the defendant did except and file this its exception, and asks that the same be allowed and ordered filed as a part of the record in this case. That upon the trial hereof, and in the afternoon of July 7th, about 2 o’clock p. m., Deputy Sheriff W. F. Bowen, in the sheriff’s office adjoining the district courtroom, said to Judge W. M. Pierson, who was present for the purpose of receiving the verdict of the jury in case they agreed and desired to report, that the jury had asked that the court be called in order that they might report to him that they could not agree, and that the said deputy sheriff had told them that the court knew they had not agreed from the fact that they had not reported, and the said deputy sheriff, W. F. Bowen, thereupon suggested to the judge that he might bring the jury into the courtroom, and the court might lecture them a little, and it might enable them' to arrive at a verdict, to which the court assented, and said officer started towards the jury room, and counsel for the defendant and Judge Pierson proceeded into the courtroom, where counsel for the defendant advised the judge that the defendant did not desire the jury lectured by the court for the purpose of enabling them to bring in a verdict, to which the court replied that that was natural and probable, because, the jury having already agreed upon liability, that any verdict they would now bring in was bound to be a verdict for the plaintiff, and as a matter of course the defendant preferred that no such verdict be returned, to which counsel for the defendant assented, and about which time Deputy Sheriff Bowen, followed by the jury, came into the courtroom, and the jury greeted by Judge Pierson with the salutation, ‘Good evening, gentlemen,’ and the jury responded in the same good nature, one of whom observed that they had expected to find Judge Dohoney on the bench, and to which the court replied: ‘Judge Dohoney told me last night that he expected you to return a verdict by 10:30 this morning, and, as his father was ill, requested me to receive your verdict, if you agreed and desired to report. He also told me that you had agreed upon a part of your verdict.’ The court then asked the jury if they had not agreed, to which they replied that they had not, and did not think that they could agree. The court then advised the jury that Judge Dohoney had not asked him to discharge them, but to receive the verdict, and he would not feel warranted in discharging the jury; ‘that in his own court he had made it a rule to keep the jury together until a verdict was reached, and he felt that he should be as strict while acting for Judge Dohoney as he was in his own court; that the purpose of a trial was to secure a verdict when it was finished, and that without a verdict all the labor of the trial was wasted, and that he was sure Judge Dohoney would be greatly disappointed if this jury should fail to agree.’ The court then asked the jury if they were in a good humor with each other, and all of them assured him that they were, and he told them they appeared to be men who were not acting stubborn just for the sake of being stubborn, and that he felt they could yet reach a verdict, and suggested to them the following plan as being a good one, and one that he had seen work before, resulting in a verdict being returned after the jury had announced that they could not agree. The court then outlined this plan to the jury for the purpose of enabling them to arrive at a verdict, to wit: ‘Go with the deputy sheriff for a 25 or 30 minutes walk, during this time forget all that you have been doing, and trying to do, and just try to think about getting a good relaxation from the weariness of the jury riTom, it being very tiresome to just remain in the jury room as you have been doing since yesterday evening, and when you get back to the jury room then commence anew your work of trying to reach a verdict, and in the opinion of the court you will be able to‘bring in a verdict in a short while. I have seen this plan work often, and as long as the members of the jury are in a good humor with each other there is always hope that they can return a verdict;’ the court further stating to the jury that a verdict must not be a one-man verdict or an eleven-man verdict, or any other number except a twelve-man verdict, and that all must agree to it before it was a verdict; that they should do their best to consider the case and all the evidence in the case, and to arrive at a verdict in order that the labors of the court might not be wasted. To which statement to the jury by Judge Pierson the defendant excepted, and in making the exceptions the court said back to counsel, ‘There was nothing coercive in what was said to the jury,’ to which counsel for defendant replied, ‘Perhaps not.’ To all of which defendant reserves its exception, and asks that this bill of exception be allowed and ordered filed as a part of the record in this case.”

The judge appended the following explanation:

“The foregoing bill is allowed and ordered filed with this explanation: During the day upon which the trial was continued I announced to counsel that I would go home that night, and would request Judge Pierson to receive the verdict, or leave him in charge of the court and jury; that being the last trial for the court. Do not know whether defendant’s attorney heard the announcement or not. The jury retired about 3:30 o’clock p. m. I remained in the courtroom until about 6:30 p. m., and excused the jury for the night, as recited in the bill, after instructing them as required by article 1960, R. S.
“A. P. Dohoney, Judge 62d Dist.”

There is nothing in the statement made by Judge Pierson to the jury, and as said by Judge Pierson, that was “coercive,” or that persuaded the jury to render a verdict for either party, and if rule No. 62a (149 S. W. x) applies to any case, this is one. The assignment is overruled.

The verdict is not complained of as being excessive, and there is no indication that the judge’s talk increased the amount of the verdict.

We have considered every assignment of error not here mentioned, and overruled same.

The verdict and judgment are supported by the evidence, and the judgment is affirmed.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    TEXAS MIDLAND R. R. v. BUTLER.
    (No. 8025.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 30, 1918.
    Rehearing Denied Jan. 4, 1919.)
    1. Negligence @==>136(14) — Questions oe Law and Pact.
    In actions for personal injuries, whether the parties exercised the required care is for the jury, except in cases where the alleged negligent act is in violation of law, or when the undisputed facts disclose that it was the proximate cause of the injury.
    2. Railkoads @=350(4,13) —Personal Injury Actions — Questions oe Pact.
    In an action against a railroad company for personal injuries due to plaintiff’s horse becoming frightened by an approaching train at a crossing and upsetting the wagon, evidence as to defendant’s negligence in failing to give warning, either by signal or by its brakeman then at the crossing, and of plaintiff’s exercise of due care, held to raise questions for the jury.
    3. Trial @=260(8) — Instructions — Requests.
    It was not error to refuse an instruction that defendant railroad was not liable if plaintiff’s horse was more readily frightened than an ordinary horse, where the issue of contributory negligence was sufficiently covered by an instruction given.
    Appeal from District Court, Hunt County; Win. Pierson, Judge.
    Action by R. D. Butler against the Texas Midland Railroad. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Coke i& Coke, of Dallas, Dashiell, Terry & Brown, of Terrell, and S. W. Marshall, of Dallas, for appellant.
    Clark & Sweeton, of Greenville, for appel-lee.
   RASBURY, J.

Appellee sued appellant in the court below for damages for personal injuries alleged to have been the result of the negligence of appellant in operating one of its trains over and across a public street in the town of Greenville, by which appellee’s horses attached to a loaded farm wagon were frightened, the wagon overturned, and appellee seriously injured. There was jury trial and general verdict for appellee, followed by appropriate judgment, from which this appeal is taken.

When the parties had concluded the introduction of testimony, and before the case was submitted to the jury, appellant requested the court to direct the jury to return verdict for- it, which was refused, and which refusal is the basis for the first assignment of error. The claim is that at that time the evidence disclosed that the proximate cause of the injury was unexplained or in doubt, and could be attributed to the negligence of either appellant or ap-pellee, and as a consequence, the burden of proof being upon the appellee, he had failed to make a case, and the peremptory instruction should have been allowed. The effect of the contention on analysis' is that the evidence is insufficient to sustain the verdict of the jury.- The facts deducible from the evidence and tending to support the verdict of the jury on the issue raised by the assignment are, in substance, these: Lee street in Greenville runs east and west. Appellant’s line of railroad runs nearly north and south, and in its course crosses Lee street. At the crossing are four rails, two constituting the main line, two a “Y” line, which leaves the main line just south of Lee street. Appellee, accompanied by Sid Reed, was proceeding west on Lee street, driving a team of mares attached to a farm wagon loaded with cotton seed, on his way to an oil mill. When he arrived at the crossing an engine was switching on the “Y” line. He halted his team within about 50 feet of the crossing, awaiting the time when he could safely cross. At the time appellee halted, an engine, with three cars attached, headed north and stationary, was on the main line north of Lee street about 75 or 100 feet and was observed by appellee. In time the engine on the “Y” moved away, and appellee resumed his progress towards the tracks, looking in advance at the engine and cars north of the crossing, and observing that they remained stationary, and that a man was sitting at the south end of the train on the cross-ties. He did not again look in the direction of the engine and cars. His view of the engine and cars from the time he resumed his progress was unobstructed and open. When within but a few feet of the tracks appellee’s companion, Sid Reed, who was watching the ears on the main line, while appellee kept a lookout for the engine on the “Y” track, saw the train commence backing, and in fear that they could not get across seized the lines from appellee and checked the mares. As the cars approached, the team became frightened and commenced backing, and when the engine got close the fright of one of them increased, and in her struggles wheeled away from the engine and turned the wagon over, seriously injuring appellee. Traffic. at the point where the accident occurred was at all times heavy, and those in charge of appellant’s train knew it, and when they commenced backing the cars failed to sound the whistle or ring the béll or give other warning of the approach of the train, notwithstanding appellant’s brakeman, who signaled ■the cars to back, knew that appellee was at the crossing. He denies, however, that he was at the end of the cars, as claimed by appel-lee, but says he was at the crossing, keeping a lookout for those who might he crossing the tracks. He admits, though, that he was facing west, which would put his back to appellee, and that at the time he signaled the train to back he did not turn to observe whether appellee was moving towards the crossing, but relied upon the fact that when he last saw the team it was stationary.

Appellant in support of its contention relies upon I. & G. N. R. R. Co. v. Edwards, 100 Tex. 22, 93 S. W. 106, and similar cases. In the case cited the evidence disclosed that Edwards, while traveling a road parallel with the railroad, turned obliquely and stepped on the crossing over which he knew trains frequently passed, and was injured by a passing train, the electric headlight of which was visible for a mile, and the noise of which was plainly audible. He founded his light to recover solely on the ground that the engineer of the train did not ring the bell or sound the whistle. In holding the railroad not liable the court declared that Edwards could not “excuse the absence of all care” on his part by showing that the railroad employés were negligent. The holding is but the application to the facts of the familiar rule that, while it is the duty of servants of railroads in approaching crossings to exercise ordinary care in the operation of trains, it is equally and in like manner the duty of the public to exercise the same degree of care in- approaching the tracks of railroads at such crossings.

Whether the respective parties exercised the degree of care required is a question of fact for the jury, save in cases where the act charged as negligence is done in violation of law, or when the facts without controversy disclose that the negligent act was the proximate cause of the injury, which presents alone a matter of law. Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63; Southern Traction Co. v. Owens, 198 S. W. 150.

The facts in the present case which support the verdict of the jury are in no sense consistent with the theory that there was an absence of all care upon the part of appellee when he undertook to cross the railroad tracks. After arriving within about 50 feet of the tracks he halted his team, and made no attempt to cross until the engine on the “X” was well out of the way, and he had made certain that the engine and cars on the main line remained stationary. These precautions, it will not be denied, constituted ordinary care at that time and as matters stood. The apparent danger at that time was from the engine on the “Y,” and that danger was no longer imminent when it moved away. The other engine and cars were and had been stationary from the time of appellee’s arrival, and presented no apparent danger. Being stationary and watched by a brakeman, when he resumed his journey he had the right to assume it would remain so until he crossed. But it is argued that from the time he resumed his journey his vision was unobstructed, and he could have seen the engine and cars on the main line when they started had he looked in time to have avoided the injury. While it is true appellee’s view was unobstructed, and while it is true that he did not look again at the engine and cars upon the main line for the reason that he was watching the “Y” track against a return of the other engine, it is also true that Ms companion, Sid Reed, was watching the engine and ears on the main line, and says that they commenced backing after appellee resumed progress, and when his team was within a few feet of the track, and, seeing that the team could not make it across, checked them by taking the lines from appellee. The nearest car was 50 feet away, and it seems obvious that the safe and prudent thing was what Reed did, since it was quite likely that tlje train would cover the distance to the crossing much quicker than the loaded wagon could traverse it. That the facts at least raise an issue for the jury is, we think, obvious.

Appellant requested the court to charge the jury that if they believed from the evidence that one of appellee’s horses took fright at cars more readily than an ordinary horse, and that appellant did not know that fact, and that the fright of the horse, which took fright more readily than an ordinary horse, was the proximate cause of appellee’s injury, to find for appellant, etc. The charge was refused, which appellant assigns as error. The facts disclose that both mares were “perfectly” gentle, but that one of them would shy at a train or engine, especially when steam was escaping from the engine. The mare that so shied at trains and escaping steam is the one that wheeled from the engine and caused the wagon to turn over. The court charged the jury on the issue so raised that, if they believed that one of the horses was unsafe and likely to become frightened at trains, and that in driving the horse where he did at the time and under the circumstances appellee failed to exercise ordinary care for his own safety, and thereby contributed to his injuries, to find for appellant. This charge, in our opinion, submits all that was warranted by the evidence. There is in the charge refused that which renders it erroneous for other reasons, but which we need -not discuss, in view of the conclusions reached with reference to the court’s charge.

Finding no reversible error in the record, the judgment is affirmed.
      •*fe»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    GAUSE v. SECURITY LIFE INS. CO. OF AMERICA.
    (No. 8937.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 23, 1918.)
    1. Insurance <&wkey;138(2) — Actions for Premiums — Defenses.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4954, prohibiting discrimination between insurants, an agreement of an insurance company to lend money to one at a low rate of interest if he would take out a certain amount of insurance, not being mentioned in the policy, was void, and the policy holder could not in an action on a note given as a premium set up the defense that the insurer refused to lend the money.
    2. Insurance <&wkey;131(l) — Scope of Contract —Statutes.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4953, providing that insurance policies shall contain the entire contract, is binding upon the insured as well as the insurer.
    3. Insurance <&wkey;129 — Modification of Policy — Who May Modify.
    Where an insurance policy provided that only certain named officers had the power in behalf of the insurer to make or modify any contract of insurance, a promise of a general agent in consideration of an application of insurance to lend the insured money was not binding upon the company.
    4. Insurance <&wkey;179% — Loans—Equity.
    Assuming that an agreement of an insurance company to make a loan to be secured by certain real estate, and the insurance taken out could be deemed the legal and inducing cause of the contract of insurance, it would not be equitable to require the insurance company to make a loan at some time subsequent to the period for which the premium had been paid by note and at a time when the insured was delinquent as to the payment of such note.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Suit by the Security Life Insurance Company of America against George L. Gause. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Slay, Simon & Smith and I. T. Valentine, all of Ft. Worth, for appellant."
    B. K. Goree, of Ft. Worth, for appellee.
   BUCK, J.

This suit was instituted by the Security Life Insurance Company of America, hereinafter called “insurance company,” against George L. Gause, to recover on a note for $1,258.70, executed by said Gause in payment of the first year’si premium on five separate policies of $5,000 each. Defendant acknowledged the execution and delivery of the note, but alleged that the agent of the insurance company, before and at the time of the execution of the note, represented to defendant that if he would take out said insurance policies and execute said note that plaintiff would lend to defendant the sum of $15,000 at 5 per cent, per annum, taking as security certain real estate owned by defendant in the city of Ft. Worth, Tex., and also taking as additional security said policies; that said loan would be made to defendant at any time during the year or life of said policies that defendant should desire it; that said representations induced defendant to take out said insurance and execute said note, and had they not been made defendant would not have executed the note and taken out the insurance. He further alleged that the representation was false and fraudulent in this, to wit:

“That said plaintiff failed and refused upon the demand of this defendant, within the time specified, to wit, during the life of said policy, to make him a loan of $15,000, at 5 per cent, interest, although this defendant offered the security as represented to him by plaintiff would be satisfactory and sufficient; and said plaintiff has, at all times, failed and refused to make said loan. That at the time said representations were made to this defendant by the agent of said plaintiff, said agent well knew that the same were false and fraudulent, and that said plaintiff would not make said loan, and said representations were made for the purpose to mislead and falsely and fraudulently induce this defendant to execute said note.”

It was further alleged that the consideration for the execution of the note had totally failed. Issues were joined by plaintiff’s supplemental pleadings on the allegations in defendant’s answer as to the alleged misrepresentations, fraud, etc. Upon the conclusion of the evidence, the court gave a peremptory instruction for plaintiff, and defendant has appealed.

Article 4954, Vernon’s Sayles’ Tex. Civ. Stats., provides, in part, as follows:

“No insurance company doing business m this state shall make or permit any distinction or discrimination in favor of individuals between insurants (the insured) of the same class and of equal expectation of life in the amount of, or payment of, premiums or rates charged for policies of life or endowment insurance, * * ⅜ nor shah any such company or agent thereof make any contract of insurance or agreement as to such contract other than as expressed in the policy issued thereon; nor shall any such company, or any officer, agent, solicitor or representative thereof, pay, allow or give or offer to pay, allow or give, directly or indirectly, as an inducement to insurance, any rebate of premiums payable on the policy, or any special favor or advantage in the dividends or other benefits to accrue thereon, or any paid employment or contract for service of any kind, or any valuable consideration or inducement whatever not specified in the policy contract of insurance * * * or anything of value whatsoever not specified in the policy.”

In Security Life Insurance Co. v. Allen, 170 S. W. 131, it was held that, in an action on a premium note, parol evidence of an agreement between defendant and plaintiff's general agent that defendant should not be called upon to pay the note if he would help the agent secure other insurance, which defendant did, was objectionable as contradicting the terms of the note; that such a contract as claimed by defendant was made with him) by the agent of the insurance company would be in violation of article 4954, supra, and constituted no defense to the note. It has also been held in Morris v. Ins. Co., 200 S. W. 1114, that an agreement of an insurance company to lend money to one at a low rate of interest if he would taire out a certain amount of insurance, not being mentioned in the policy, was void under the article above quoted, and that a policy holder could not ask rescission of policy, in that he was deceived by a promise of this character. In the last-cited case Justice Hodges, speaking for the court, says:

“If the promise of the agents to make the loan at the reduced rate of interest is so connected and interwoven with the contract to pay the insurance premiums as to authorize a rescission of the latter upon proof that the promise was fraudulently made, then such a promise must have formed a material part of the actual consideration for entering into the insurance contract. Manifestly such a promise would be an ‘offer to give * * • as an inducement to insurance’ something of value, and should, have been ‘specified in the policy.’ It is one of the evident purposes of the statute above quoted to prevent discriminations and secret agreements by which certain policy holders may be enabled to secure special favors as a consideration for their contracts of insurance. In this instance the policy of insurance was made an exhibit to the appellant’s petition, and there is no contention that it contained the stipulation here insisted upon as a ground for rescission. Hence it falls within the prohibition of the statute.
“That being true, it logically follows that the appellant cannot insist that he was deceived by a promise which the agents could not legally make. He is charged with a knowledge of the provisions of the statute relating to such transactions; he will not be allowed to plead that he did not know that such limitations upon the power to make insurance contracts existed. He is therefore in no attitude to insist that he was the victim of a fraud perpetrated by the representatives of the insurance company.”

Article 4953 of the Revised Statutes provides that insurance policies shall contain the entire contract. Under this article, it was decided in Knodel v. Life Insurance Co., 193 S. W. 1138, that a life insurance company was not bound by the parol promise of its agent that there would be no forfeiture of the policy for nonpayment of premium unless the beneficiary were first notified and thereafter defaulted. See Maryland Casualty Co. v. Robertson & Co., 194 S. W. 1140. In Knodel v. Insurance Company, supra, it is held, properly we think, that article 4953 is binding alike up.cn the insured and the insurer. Moreover, it is provided in the policy in the instant case that only certain named officers have power in behalf of the company to make or modify any contract of insurance, etc., and the company is not to be bound by any promises or representations given by any person other than those mentioned. The uncontra-dicted evidence is the testimony of O. W. Johnson, secretary of the insurance company, on this point, to the effect that L. M. Gen-eres, the agent of the company, had no authority to make representations of the character mentioned, or to do anything in the premises except to solicit and write insurance and to appoint agents for said purpose. Hence we conclude that the defendant below was not in a position to defeat the obligation to pay the note.

For another reason we conclude that the defendant did not place himself in a position equitably to demand a rescission of or to defend against the contract. The evidence shows that the note was executed January 31, 1911, payable September 1st thereafter; that no formal application was ever filed or made by Gause for a loan with the company; that on or about the date of maturity of the note the insurance company began to write letters to Gause calling attention to the fact that his note was past due and asking for a remittance or some satisfactory settlement. No answer seems to have been received from these several letters until March 29, 1912, more than six months after the expiration of the first year, in payment of the premium for which the note was given. In this letter Gause stated thát:

“I will pay this note just as soon as I can make a turn, it will be looked after. I am desirous of securing a loan for $15,000.00 for a period of three or five years and it may be acceptable to your company to place this” on certain described property. “If you remember you and I looked this building over and I spoke of possibly wanting a loan, when you were making your trip through Texas.”

We think the evidence shows without controversy that no demand for the loan was made during the period of time covered by the first premium, and that no refusal by the company to make the loan occurred at any time prior to April 2, 1912. Even if the alleged representation of the agent as to the company’s making the insured a loan at a cheap rate of interest could be held as an enforceable agreement or promise on the part of the company, or if it could be deemed the legal and inducing cause of the contract made, yet we do not think it could be reasonably contended that such promise or representation implied the obligation on the insurance company’s part to make a loan to defendant at some time subsequent to the period for which the premium had been paid and at a time when the insured was delinquent as to the payment of the premium note. At the time the tentative application for a loan was made by Gause, the period for which the note had been given had expired by some 60 days and the note itself was long past due and unpaid. So much for the lack of equitable grounds presented. But we base our conclusions that the judgment must be affirmed upon the statutory reasons given.

We are of the opinion that we cannot disturb the judgment, and that all assignments must be overruled, and the judgment affirmed.
      dfenFor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    SANGER BROS. v. ELY & WALKER DRY GOODS CO. et al.
    (No. 8926.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 16, 1918.
    Rehearing Denied Dec. 21, 1918.)
    1. Subrogation <&wkey;l — Nature oír Doctrine.
    “Subrogation” is a doctrine of equity and is the substitution of another person in place of a creditor, so that the person in whose favor it is applied succeeds to the rights of the creditor in relation to the debt.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Subrogation.]
    2. Subrogation <&wkey;23(3) —• Cancellation of Mortgages — Release.
    A creditor, who pays off mortgages on property and takes a new mortgage in the aggregate amount, will be subrogated to the rights of the old mortgagees as against an existing inferior mortgage, although formal releases were made and recorded; the holder of the inferior mortgage, of whom the creditor had no actual knowledge, not being prejudiced thereby.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    Suit by the Ely & Walker Dry Goods Company against Sanger Bros., and others. Judgment for plaintiff, and the above-named defendant appeals.
    Reversed and rendered.
    Coke & Coke, of Dallas, B. L. Russell, of Baird, and R. W. Haynie, of Abilene, for appellant.
    Kirby & King, of Abilene, and Theodore Mack, of Ft. Worth, for appellees.
   CONNER, C. J.

Stating them in their chronological order, the facts in this case are substantially and briefly as follows: On January 19, 1910, W. D. Boydstun purchased a tract of 111½ acres of land from H. O. McGowen, and in part payment of the purchase money he gave McGowen 3 vendors’ lien notes for the sum of $912.50 each. One H. W. Ross thereafter became the owner of these notes, and this debt will be hereinafter referred to as the “Ross debt.” On October 20, 1912, W. D. Boydstun, having theretofore become indebted to Sanger Bros, for merchandise, executed to said Sanger Bros. 13 notes, aggregating $10,597.98, and secured the same by a deed of trust, later duly recorded, upon the 111½ acres of land purchased from McGowen, and also upon another tract of land of 58 acres owned by Boydstun. Thereafter on February 10, 1914, Boydstun executed a note for $1,000, payable to A. S. Witherspoon, and secured the same by a deed o£ trust on the 58-acre tract of land above mentioned. Both the Sanger Bros, deed of trust and the Witherspoon deed of trust were duly recorded in Callahan county, where the several tracts of land were located. Thereafter, on December 2, 1914, W. D. Boydstun executed and delivered to Ely & Walker Dry Goods Company, appel-lees in this case, 6 promissory notes, aggregating $4,135.93, and gave a trust deed securing said notes on the two tracts of land hereinbefore mentioned. This trust deed was also duly recorded in Callahan county.

This suit was filed on April 21, 1917, against W. D. Boydstun on the six promissory notes payable to appellees in this case, as above stated, and to foreclose their trust deed lien. One R. L. Surles and Sanger Bros, were made defendants under an allegation that they were asserting rights in the land. The record fails to show that Surles answered, but Sanger Bros, did so, alleging that they held a first lien on the lands above described, secured by four notes for $3,500 each, dated November 1, 1915, due one, two, three, and four years respectively thereafter, being purchase-money notes given by said Surles to said Boydstun, and by the latter transferred to them, which notes they alleged were given for the purpose of taking up the liens prior to plaintiffs’ and to which prior liens they were or should be subrogat-ed. The plaintiffs, Ely & Walker Dry Goods Company, replied that the prior liens mentioned by Sanger Bros.' had been paid off, discharged, and released, and that plaintiffs’ lien thereby as a matter of law had been advanced to first place.

A trial before the court without a jury resulted in a judgment for the plaintiff for its debt, with foreclosure as prayed for; the court holding that Sanger Bros, were not entitled to subrogation as by them sought. The court filed his conclusions of fact and law, and Sanger Bros, alone have appealed.

In addition to the facts above stated, the court found that on October 27, 1915, W. D. Boydstun arranged to sell to R. L. Surles the lands in controversy in this suit, and that at the time of the contract of sale Sanger Bros, and Boydstun agreed with Surles that they would pay off and cause to be paid off and discharged all the liens and incumbrances then outstanding against the land; it being further agreed at the time that Surles would give Boydstun $14,000 in vendors’ lien notes against the land, said notes being four in number, and each to be in the sum of $3,500, payable in one, two, three, and four years from the consummation of the trade. It was then further agreed with Sanger Bros, that he (Boydstun) would transfer the vendor’s lien notes received by him from Surles to Sanger Bros., and Sanger Bros, agreed to accept such vendor’s lien notes in full settlement and satisfaction of any and all claims and liens theretofore held by them against W. D. Boydstun or against the property sold to Surles; the sum of $14,-000 being the sum total of all the indebtedness then owing to Sanger Bros., including the amount of the Ross debt and of the Witherspoon debt, hereinbefore mentioned.

The court further found that this agreement was duly consummated; that at the time of the sale the distinct understanding on the part of Boydstun, Surles, and Sanger Bros, was that Surles should take the land free of all incumbrances save the incum-brances created by the execution of the Surles notes, which were to constitute in favor of Sanger Bros, a first and only lien; that the plaintiffs in the case, Ely & AValker Dry Goods Company, were not parties to this agreement and had no knowledge of it; that Sanger Bros, were without actual knowledge of the plaintiffs’ lien in the case. The findings and undisputed facts further show that Sanger Bros, advanced the money to pay off the Ross and Witherspoon debts, releases therefrom being acquired and recorded, and that they also executed in due form a release of the merchandise debt due them from Boydstun, all of which releases were duly placed on record.

The court concluded that the effect of the payment of the Ross and Witherspoon liens and Sanger Bros, merchandise debt, with the formal releases therefrom, wholly discharged said debts and, in effect, thus advanced plaintiffs’ lien to first place and constituted it superior to any lien or right of Sanger Bros.

While, of course, under our registration statutes both Surles and Sanger Bros, had constructive notice of plaintiffs’ lien, it is undisputed that they had no actual knowledge thereof. It nowhere appears in the findings or in the evidence that the Ely & Walker Dry Goods,Company’s debt was mentioned by Boydstun or any other person during the negotiations between Boydstun, Surles, and Sanger Bros, that culminated in the Surles purchase, and the good faith of this transaction is in no wise assailed. We infer from the court’s findings and from appellees’ brief filed in this court that, inasmuch as Surles purchased the land with the distinct understanding and agreement that it was to be free from all liens, he (Surles) would have the right to so treat the purchase. But we are not called upon to determine the rights of Surles to the land in controversy, or determine what, if any, remedy he might have against Sanger Bros., for he failed to answer below, and there is no appeal upon his part from the judgment of the court as rendered. All inquiry, therefore, is limited to a determination of the relative rights of appellants, Sanger Bros., and of the appel-lees, • Ely & Walker Dry Goods Company*. As between these parties, at least, we think the court was in error in his conclusions and judgment.

It is not to be doubted, under the record in this ease, that the debts actually paid off and released by Sanger Bros, at the time of the sale to Surles equaled the amount of the vendors’ lien notes given by Surles to Boydstun and by Boydstun transferred to Sanger Bros.; nor can it be doubted from the record that the purpose of Sanger Bros, was that the previously existing indebtedness should be continued and evidenced in the differing form of the Surles notes. “Subrogation” is a doctrine of equity; it is a substitution of another person in the place of the creditor, so that the person in whose favor it is applied succeeds to the rights of the creditor in relation to the debt. The substitute is put in all respects in the place of the party to whose rights he is subrogated. See Sheldon on Subrogation, §§ 1 and 2; 37 Cyc. 363, par. A. Again, it is said in Am. & Eng. Enc. of Law, vol. 27, p. 247, that—

“One who advances money to pay off an in-cumbrance on realty at the instance of either the owner of the property or the holder of the incumbrance, either on the express understanding, or under circumstances from which an understanding will be implied, that the advance made is to be secured by a first lien on the property, is not a mere volunteer, and, in the event the new security is for any reason not a first lien on the property, the holder of such security, if not chargeable with culpable and inexcusable neglect, will be subrogated to the rights of the prior incumbrancer under the security held by him, unless the superior or equal equities of others would be prejudiced thereby, and to this end equity will set aside a cancellation of such security, and revive the same for his benefit.”

In Bank v. Ackerman, 70 Tex. 320, 8 S. W. 47, it is said, among other things, that—

“ ‘The true principle * ⅜ ⅜ is that, when money due on a mortgage is paid, it shall operate as a discharge of the mortgage, or in the nature of an assignment of it, substituting him who pays in the place of the mortgagee, as may best serve the purposes of justice and the just intent of the parties.’ * * • And it makes no difference, in either of these classes, whether the party, on the payment of the money, took an assignment of the mortgage as a release, or whether a discharge was made and the evidence of the debt canceled. * *' * The debt itself may be held still to subsist in him who paid the money as assignee, so far‘as it ought to subsist, in the nature of a lien on the land, and the mortgage be considered in force for his benefit, so far as he ought, in justice, to hold the land under it, as if it had actually been assigned.”

See, also, Hicks v. Morris, 57 Tex. 658; Dillon v. Kauffman & Runge, 58 Tex. 696; Park v. Kribs, 24 Tex. Civ. App. 659, 60 S. W. 905.

GApplying these principles, it can make no difference that S'anger Bros, took to them no formal assignments of the Ross and Wither-spoon debts and executed formal releases of their own pre-existing mortgage. The Ross and Witherspoon debts were paid by Sanger Bros., and their mortgage release in ignorance of appellees’ mortgage and their claim. It was shown that Sanger Bros, would not have so performed had they known of appel-lees’ mortgage, and we think that in equity, so far as may be necessary, Sanger Bros, should be subrogated to the rights evidenced by the formal liens discharged by them. Ap-pellees certainly are in no worse condition than they were prior to the sale to Surles, for at that time it is unquestioned that the preceding liens were superior in point of time and right. See Fears v. Albea, 69 Tex. 437, 6 S. W. 286, 5 Am. St. Rep. 78; Whiteselle v. Texas Loan Agency, 27 S. W. 309; Jones on Mortgages (6th Ed.) vol. 1, § 971; and other cases cited in behalf of appellants.

We conclude that from the court’s findings and undisputed facts that the judgment below, in so far as priority is therein given to the lien asserted by appellees herein, should be reversed and here rendered for appellants; the judgment in other respects being undisturbed, save that the sale of the lands involved in this suit and above described shall be subject to the prior lien of appellants as we have determined.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DALEY v. WHITACRE et al.
    (No. 8938.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 14, 1918.)
    1. Wills <&wkey;324(2) — Want of Mental Capacity-Evidence.
    Evidence relied upon by contestant held insufficient to raise issue for jury as to testatrix's want of capacity to make will in question.
    2. Wills &wkey;>324(3) — Undue Influence — Evidence.
    Evidence relied upon by contestant held insufficient to raise issue for jury as to undue influence.
    3. Evidence <&wkey;472(8), 478(1), 501(3) — Opinion Evidence — Admissibility.
    While a nonexpert witness may, in connection with facts and circumstances upon which her opinion is based, give an opinion as to mental condition, she cannot testify to a legal conclusion from facts given either by herself or by others, which embodies the very point in issue.
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Contest of application to probate will of Mrs. Mary Ella Cowan by J. S. Daley against John S. Whitaere and others. Verdict in favor of proponents, and contestant appeals.
    Judgment affirmed.
    Carrigan, Montgomery & Britain, of Wjieh-ita B’alls, for appellant.
    Martin, Bullington, Boone & Humphrey, of Wichita Palls, for appellees.
   CONNER, C. J.

Appellant, John S. Daley, contested the application to probate the will of Mrs. Mary Ella Cowan, dated January 30, 1917, on the ground, substantially,’ that the testatrix was not of sound and disposing memory at the time the will was executed, and that the will was executed on account of undue influence of the executors and legatees.

Upon the trial in the district court, and after the conclusion of the evidence offered by the parties, the court gave to the jury a peremptory instruction to find for the proponents of the will, and judgment was accordingly rendered in their favor.

The only complaint made upon this appeal is that the court erred in giving the peremptory instruction—

“in that the testimony introduced on the trial of said cause was sufficient to present issues to the jury for their decision, and as this case was tried before a jury this court had no authority to direct a verdict against the contestant and in favor of the proponents of the will.”

We will not undertake to fully set out the testimony which is presented to us in the statement of facts. We think it sufficient to say that the evidence has been carefully examined, and we think that offered in behalf of appellee unmistakably shows that Mrs. Cowan was mentally capable of understanding, and that she did understand, the terms of the will in question, and that it disposes of her property in accordance with her wishes. The testimony of her attending physician, of the lawyer who was employed to draft the will, and of others, also shows that there was nothing in the manner of the distribution of the property made indicating anything other than a sane and permissible exercise of her will. The only testimony relied upon as showing the contrary is thus stated by appellant, viz.:

“Mrs. Dyke testified on behalf of the contestant : That she was acquainted with Mrs. Cowan during her lifetime, and knew her about a month before her death, and lived for a month in a room that adjoined Mrs. Cowan’s room, with just a hoard partition between them. That she was there during the time Mrs. Cowan was sick, and she said: T heard Mr. Livingstone in the room where Mrs. Cowan was, talking to her, and I think Mr. Cowan was in the room during the conversation.’ That she could not get enough to know what they were talking about. T was there the night the will was drawn up. I cannot tell just how long they were in there. I could hear their voices, hut I could hear the men’s voices mostly. I could hear Mrs. Cowan once or twice. Yes; a party came to my room after a pen after the will was drawn up. It was the man I took for Mr. Livingstone. During the time I was there Mr. Livingstone was in and out quite often. I could hear them talking, but could not tell what they were talking about. I had occasion to notice Mrs. Cowan pretty carefully. I noticed she would tell me certain things over quite a number of times. She seemed to be very forgetful. Well, to be candid, I do not think she was capable of making a will; that is my opinion abput it.’ ”

The testimony so relied upon in our judgment fails to even raise the issue of undue influence or want of capacity in Mrs. Cowan to make the will in question. In so far as it can be given legal effect, it amounts to no more than that Mrs. Cowan, at a time or times not shown, was very forgetful. The testimony of the physician, however, who was present when the will was made, was that—

“She [Mrs. Cowan] seemed to know what she was doing up to perhaps the last two or three days before her death. She seemed perfectly rational-attended to and talked about her business. * * * When we first went into her room [on the occasion of the execution of the will] we first talked health, etc., and passed a few words. Then Mr. Boone spoke to Mrs. Cow-an, and told her that he had been requested to write her will, and she told Mr. Boone that she wanted to make a will.”

Then followed details relating to her property — a discussion of the manner of the disposition and to whom the property should be given. The witness then further stated that he read the will over to Mrs. Cowan and testified:

“Knowing her as I do for two or three years previous to this time, in my judgment she was of sound and disposing mind, and knew perfectly what she was doing. She was not excited. She seemed perfectly at herself. No, sir; she did not act as though she was afraid of any one at all — not even death. She knew that she was going to die.”

Mr. Boone, who drafted the will, also testified to the circumstances, and of the condition of Mrs. Cowan at the time of the execution of the will, and concluded that in his opinion that at the time Mrs. Cowan was thoroughly rational, and knew what she was doing, and knew how she was transferring her property, and was not under any undue influence whatever.

The statement embodied in the testimony of Mrs. Dyke that, “to be candid, I do not think she was capable of making a will; that is my opinion about it” — is of no legal force, in our judgment, in disposing of the question presented to us. It is but a legal conclusion, and one, too, which embodied the very point at issue. While a witness, non-expert though she may be, may, in connection with the facts and circumstances upon which her opinion is based, give an opinion as to the mental condition, when in issue, of a person at a given time, the rule as applied in this state cannot be so extended as to permit the witness to testify to a legal conclusion from facts given either by himself or testified to by others. The very point at issue in this case was the capacity of Mrs. Cowan to make a will. That question could be legally determined by the court and jury alone, upon a consideration of all the evidence in the case, including the opinion of witnesses, if any, as to the mental condition of Mrs. Cow-an at the time of the execution of the will. See an apt discussion and review of authorities on this question by our Supreme Court in the case of Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64, and also H. & T. C. Ry. Co. v. Roberts, 101 Tex. 418, 108 S. W. 808.

We conclude that the judgment should be affirmed.
      dSmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes