text:
    MEREDITH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    Rehearing Denied April 1, 1914.)
    1. Forgery (§ 23) — Venue—Statute.
    Under Code Cr. Proe. 1911, art. 235, declaring that the offense of forgery may be prosecuted in any county where the written instrument was forged, or where it was used or passed, the venue of a prosecution for forgery may be laid in the county wherein accused mailed the forged note to one who discounted it, even though the note was prepared in another county.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 59; Dec. Dig. § 23.]
    2. Forgery (§ 6) — Defenses.
    It is no defense to a prosecution for forging the names of others to a promissory note that accused did not think that they would object, it appearing that one of the parties whose name he subscribed to the note refused to sign it, and that the others refused to ratify the signature thereafter.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 7; Dec. Dig. § 6.]
    3. Witnesses (§ 298) — Privilege — Production of Written. Testimony.
    In a prosecution for forgery' where the forged instrument is in the hands of accused, he cannot be compelled to produce it, for that would be compelling him to give- evidence against himself.
    [Ed. Note. — For other cases, see' Witnesses, Cent. Dig. §§ 1038-1041; Dec. Dig. § 298.]
    4. Criminal Law (§ 400) — Evidence—Secondary Evidence.
    Where the forged note was in possession of accused, who admitted that it was correctly set out in the indictment, oral proof of its contents is projmrly received, where accused, who was given time to get the note, which he said was at his home when the state served notice upon him to produce it, or that secondary .evidence would be introduced, testified that he was .unable to find the note, and did not request additional time for search.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    5. Criminal Law (§ 1043) — Appeal—Presentation oe Grounds oe Review in Court Below.
    Accused claimed that the forged note was written in L. county, and from there mailed to the prosecuting witness, while the prosecuting witness testified that it was mailed to him from M. county, in which county venue was laid. Accused requested charges on the theory that the mailing of the note from M. county was not sufficient to give that county venue if the note was written in L. county. The only exceptions to the charge on venue, which was that the state must prove that the offense was committed in M. county, were to the overruling of accused’s requests. Held, that in the absence of appropriate objections accused could not, on appeal, contend that the charge was insufficient to present the issue raised by his testimony and that of the prosecuting witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    Appeal from District Court, Mason County; Clarence Martin, Judge.
    H. L. Meredith, was convicted of forgery, and he appeals.
    Affirmed.
    Flack & Dalrymple, of Llano, and Joe P. Flack, of San Saba, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of forgery, and Ms pumshment assessed at two years’ confinement in the penitentiary.

The indictment alleges that appellant forged the names of George Willis, L. F. Lehm-berg, Willie Birk, and W. R. Jones to a note for $550, payable to the order of J. T. Simpson. Mr. Simpson testified that appellant delivered such a note to him, and he loaned him $500 on the note. George Willis testified that he never signed the note nor authorized appellant to sign his name to it. L. F. Lehmberg testified that he did not sign the note, nor authorize appellant nor any other person to sign his name to the note; that he was never approached in regard to this transaction by appellant. Willie Birk testified that he never signed the nóte, nor authorized any other person to sign his name to the note; that he was never requested to sign the note, nor any mention oí it made to him. W. R. Jones also testified that he did not sign the note in question, nor authorize any one else to sign his name to it. George Willis is the only one who says he was ever requested to sign the note, and says he declined to do so, on account of conditions then existing. Appellant testified and admitted he signed the names of these gentlemen to the note in question, but says they “implied consent to him in conversation that he had with them.” He says Willie Birk had signed a note payable to Mrs. Doxy that he did not use; that Lehmburg had also signed the note to Mrs. Doxy; that he believed' these men would have signed the $550 note, as they had signed the $240 note to Mrs. Doxy. He further admits that he never told these men that he had signed their names to the $550 note to Simpson. However, he stated that he was at Field Greek in Llano county when he signed the names of these men to the note, and mailed it at Field Creek to Mr. Simpson at Llano. Mr. Simpson testified he received the note through the mail, but that it was his opinion that it was mailed to him from Pontotoc in Mason county. Appellant was in business at Pontotoc, but he says he had gone to Field Creek that day on business.

The defendant requested the following charge, which was by the court given: “When the person making an instrument in writing-acts under authority, which he has good reason to believe and actually does believe to be sufficient, he is not guilty of forgery, though the authority be, in fact, insufficient and void; and this is true even though the person whose name is alleged to be forged, is not bound by such authority or by the instrument. And unless it is established in this case, beyond a reasonable doubt, that the defendant made the instrument alleged to be forged, and that he acted without authority of any one of the parties whose names it is alleged he forged, and that he had no good reason to believe and actually did not believe that he had sufficient authority from any one of the persons or parties whose names it is alleged were forged, then you will acquit the defendant.”

Also the following charge was given at his request: “The false making of an instrument to constitute forgery mustobe done with intent to injure or defraud; and in this case, it is not sufficient to show that the names attached to the instrument set up in the indictment were forged. The further fact must be established, beyond a reasonable doubt, that such act was done with intent on the part of the defendant, at the time of the committing of the alleged forgery, to injure or defraud; and, unless the jury so finds that the act, if done, was so done with the intent to injure or defraud, you will acquit the defendant. And the defendant would be entitled to acquittal even though it should appear that he was guilty of making the alleged forged instrument, and that he did receive money thereon.”

On the question of venue the appellant requested the court to instruct the jury that if appellant did not write the names to the note in Mason county, they would acquit appellant, even though they should find that he mailed the note to Mr. Simpson at Pontotoc, in Mason county. This is not the law, and the court did not err in refusing this charge. Our Code provides (Code Cr. Proe. art. 235) that the offense of forgery may be prosecuted in any county where the written instrument was forged, or where the same was used or passed, or attempted to be used or passed. This identical question was passed on in Mason v. State, 32 Tex. Cr. R. 95, 22 S. W. 144, 408, and Hocker v. State, 34 Tex. Cr. R. 361, 30 S. W. 783, 53 Am. St. Rep. 716, and held adversely to appellant’s contention. Even though the names were written to the note at Field Creek in Llano county, if in fact he mailed it to Mr. Simpson at Pontotoc, this would be the place he made use of the note, and would give venue to Mason county. The indictment is not subject to the objection made. Branch’s Criminal Law, §§ 379, 381.

There is no serious conflict in the court’s charge as given and charge No. 3, given at appellant’s request; and, taking the two together, there can be no question that the jury was instructed that if appellant had authority to sign the names, or either of them, to the note, or believed he had authority, he should be acquitted. However, we might say that we do not think the evidence really raises this issue. Appellant admits he signed all four names to the note; all four of these gentlemen testify that they gave appellant no authority to sign their names to the note. Appellant admits that they did not authorize him to do so, but says, by reason of the fact that two of them had signed another note with him, he thought they would not object to him signing their names, yet at the same time stating that one of these gentlemen refused to sign this note • when requested to do so, and he never spoke to the other gentlemen. There is no such course of dealing shown between these gentlemen and appellant as would raise, or even tend to raise, the question of implied authority. The best he can say in testifying is that “he did not think they would object.” This would be no defense when, as a matter of fact, they did and do now object If he did not think they would object, he should have presented the note to them for their signatures. When the note became due, they objected to paying Mr. Simpson, and could not be held liable on the note, although Air. Simpson had loaned the money on the strength of their signatures.

The only objection we deem necessary to notice is that the court admitted oral proof of the contents of the note. In the indictment it is alleged that the note was in possession of appellant when last seen, but he is not therein expressly given notice to produce it. Of course, appellant could not be required to produce the note, for this would be compelling him to give evidence against himself. This court, in the case of Rollins v. State, 21 Tex. App. 148, 17 S. W. 466, adopted the rule laid down by Mr. Greenleaf in his work on Evidence: “When the instrument or writing is in the hands or power of the adverse party, there are, in general, except in the cases above mentioned, no means at law of compelling him to produce it; but the practice in such cases is to give him or his attorney a regular notice to produce the original. Not that, on proof of such notice, he is compellable to give evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by showing that the party has done all in his power to produce the original.” 1 Greenl. Ev. 660. This rule has been followed in several cases since the rendition of this opinion, and when the state offered oral proof of the contents of the note, the court promptly sustained the objection, when the district attorney at once served notice on appellant to produce the note or he would offer secondary evidence of its contents. Appellant stated to the court that he did not have the note with him, but that it was at his home. The court then took a recess to give appellant time to go to his home and secure the note. Appellant, when he took the stand, testified that he went to his home and looked for the note, but had failed to find it. However, if given further time, he thought he could find it. In approving the bill the court states “that the defendant testified that the last he saw of the note in question he placed it in a pigeon hole in his safe at Pontotoc, and he did not think it could have gotten out; that no one knew the combination of the safe except a man in New Mexico, who had been absent for several years, and that he searched the safe on the day he went to Pontotoc, when the court recessed for the purpose of allowing defendant to make the search, and failed to find the note.” As the matter is presented, we do not think there was error in admitting oral proof of the contents of the note. There is no fixed time that notice must be given; only that a reasonable time must be given. In this case it appears that the court did give appellant time to go to his home and search the place where he claimed he had placed the note, and he did not ask for further time, but simply objected to the introduction of oral proof. Inasmuch as appellant testified himself that the note is correctly set out in the indictment, and the court did give him such time as he requested, the bill presents no error. '

On the question of venue appellant testifies that he wrote the note in Llano county, and mailed it at Field Creek in Llano county, and wrote the letter accompanying it in John McCloud’s store on plain unruled paper. Of course, if this is true, Mason county would have no jurisdiction of the offense. But Mr. Simpson testified that the note was mailed to him from Pontotoc, in Mason county; that the letter or note accompany the note was written on the letter head of appellant, who was in business at Pontotoc, and dated at Pontotoc. If this is true, Mason county would have jurisdiction. Appellant tried the case on the theory that these facts, if true, would not give jurisdiction to Mason county, if the note was written in Llano, and his special charges are based on this incorrect conception of the law, and of course they should not have been given. No objection was made to that portion of the charge presenting that issue, and no exception reserved thereto; the only exception in this respect being that the court erred in failing to give the charges requested. The court instructed the jury that “it is necessary for the state to prove that the offense charged was committed in Mason county, Tex., as charged in the indictment.” In the absence of objection to this presentation of the issue, this case being tried on the 4th of last October, we do not'think error is presented.

The judgment is affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    LORD v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    Rehearing Denied April 1, 1914.)
    1. Criminal Law (§§ 921, 1090) — Appeal —• Grounds op Review — Objections to Evidence.
    Objections to the" admission of evidence cannot be made for the first time in the motion for a new trial, but must be made at the trial when it is offered and verified, by bills of exceptions signed by the trial judge.
    TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2206-2209, 2663, 2789,2803-2822, 2826-2827, 2927, 2928, 2948, 3204; Dec. Dig. §§ 921, 1090.]
    2. Criminal Law (§ 1106) — Appeal—Transfer op Cause — Filing Transcript.
    Since, in criminal cases, it is the duty of the clerk, and not the attorney, to file the transcript in the appellate court, the appeal will be considered, though not filed in time, if the delay was not due to the negligence of the attorney; but, where the failure of the clerk to file in time was due to the failure of the attorney to perfect the record in the lower court in the time allowed by law, it will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2899-2S92; Dec. Dig. § 1106.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Frank Lord was convicted of arson, and be appeals.
    Affirmed.

      ■ W. W. Neling; of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of arson, and Ms punishment assessed at 12 years in the penitentiary.

Appellant, in his motion for a new trial, complains that evidence was adduced on the trial that was inadmissible, but also admits that no objection was urged to it at the time of its introduction. Such matters cannot be presented for the first time in the motion for a new trial, but must be verified by bills of exception, signed by the trial judge; and reserving an exception to the action of the trial judge in overruling Ms motion for a new trial do not present such matters in a way we can review them. It may be, as contended by counsel in his able argument before this court, that an injustice has been done in this case; but evidently the trial judge did not think so, for he heard and saw all that took place, and it was his opinion that the motion for a new trial-should be overruled. Before we -can review the action of the trial judge in refusing to grant a new trial, the record must be presented to us in accordance with the rules of law as prescribed by the Legislature. The term of court at which appellant was tried began on July 7th and adjourned on October 4, 1913. Appellant was tried September 8th, and his motion for a new trial overruled on September 27, 1913. It is thus seen that the term of court at which appellant was tried lasted more than 8 weeks. The law which authorizes the filing of statement of facts and bills of exception after term time, and the granting of additional time by the trial judge, provides that, if the term of court may continue more than 8 weeks, the statement of facts and bills of exceptions shall be filed within 30 days after final judgm'ent shall be rendered, unless further time is granted by the court, and the court is not authorized to grant time wMch will delay the filing of the transcript in the appellate court within the time prescribed by law. Section 7, e. 119, Acts 32d Legislature.

The law requires transcripts in civil cases to be filed within 90 days, and the Code of Criminal Procedure provides that transcripts shall be filed in this court within the time prescribed in civil cases. Articles 934, 935, 931, 929, C. C. P.

Thus it can be seen that while in both civil and criminal cases, the trial court may grant additional time to file statements of facts and bills of exception, he cannot grant more time than would enable the clerk of the court to prepare and file the record in the appellate court within the time fixed by law. In civil cases the law requires the attorney to file the transcript in the appellate court, and, unless filed within the 90 days, the appeal is dismissed, unless good cause is shown why it was not filed within that time. In criminal cases the law does not make it the duty.of the attorney to file the tránscript in tMs court, but makes it the duty of the clerk. Therefore we do not dismiss the case' if not filed within the time fixed by law, because the appellant would not be at fault — -it would be the negligence of the clerk. But the law does make it the duty of the appellant to perfect Ms record in the trial court within the time fixed by law, and this duty he must comply with. If he perfects his record in the trial court in time, it will be considered, regardless of the time in which the transcript may be filed by the clerk. But if he does not perfect his record witMn the time fixed by law, then it is Ms laches or negligence, and the law does not authorize us to excuse tMs conduct, unless good cause be shown. In this case no reason is shown why the record was not perfected in the trial court within the time fixed by law. Therefore we cannot consider the statement of facts and bills of exception.

There is a question raised as to whether the trial court granted certain extension of time; but this need not be considered for, if the trial judge granted the extension as contended by appellant, the bills nor the statement of facts were not filed within 90 days from the entry of final judgment in this cause, and the trial judge could not grant more time than that under the law.

No question is raised in the motion for a new trial we can consider in the absence of a statement of facts and bills of exception; therefore the judgment is affirmed.


text:
    LEWIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    Appeal from Ellis County Court; J. C. Lump-kins, Judge.
    Arthur Lewis was convicted of selling intoxicants in prohibition territory, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of the offense of selling intoxicating liquor in prohibition territory, it being a misdemeanor in Ellis county. No statement of facts nor any bills of exceptions accompany the record; therefore no question is presented we can-review.

Affirmed.


text:
    NEAL v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    Appeal from Ellis County Court; J. C. Lump-kins, Judge.
    Walter Neal was convicted of a violation of" the prohibition law, and he appeals.
    Affirmed;
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a misdemeanor conviction for violating the prohibition law. No bills. of exception^ nor statement of facts accompany - the: record. Under such circumstances there is no question presented in the motion for a new trial we can review.

Affirmed.


author: PRENDERGAST, P. J.

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 18, 1914.)
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Brokers Smith was convicted of cattle theft, and he appeals.
    Affirmed.
    Brooke & Woolworth, of Carthage, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of cattle theft, and his punishment assessed at the lowest preseribed_ by law;. _

_ Appellant claims that the evidence, is insufficient to sustain the verdict.. Within this he claims that before a prosecution was. begun he voluntarily returned the stolen animal,. and could therefore be convicted only for a misdemeanor; also that he took the stolen animal by mistake, honestly believing at the time that it was his mother’s cow, who had authorized him to sell it. The question of his sanity also was raised in the case.

We have carefully studied the evidence, and in our opinion it was amply sufficient to sustain the conviction, and show a fraudulent taking, with intent to convert the property to his own use and benefit, without the consent of the owner, etc. The court, submitted the case, and all the issues raised in it, in a fair and full charge, to which there is no complaint. Every issue was found against appellant. It would serve no useful purpose in this or any other ease to take up and recite the evidence in detail on any of the questions in the case.

The judgment will therefore be affirmed.


text:
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.)
    Appeal from San Saba County Court; J. T. Hartley, Judge.
    Jesse Brown was convicted of unlawfully carrying a pistol, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 30 days’ imprisonment in the county jail.

The record before us contains neither a statement of facts nor any bills of exception, and under such circumstances no question is presented in the motion for a new trial we can review.

The-judgment is affirmed.


author: PRENDERGAST, P. J., and HARPER, J. DAVIDSON, J.

text:
    COLEMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.)
    Appeal from District Court, Freestone County ; H. B. Daviss, Judge.
    Will Coleman was convicted of murder in the second degree, and he appeals.
    Affirmed.
    R. M. Edwards, of Fairfield, and Boyd & Bell, of Teague, for appellant. C. B. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J., and HARPER, J.

We have read the evidence, and, without stating it, are of the opinion it does not raise manslaughter, and the court did not err in refusing to submit such an issue.

The judgment should be affirmed; and it is so ordered.

DAVIDSON, J.

(dissenting). Appellant was convicted of murder in the second degree, his punishment being assessed at five years’ confinement in the penitentiary.

The real question at issue on this appeal is the failure of the court to charge the law of manslaughter. The evidence, in substance, is: The deceased, Andrew Brooks, and Minnie Lee Blain, had been having illicit relations. This had continued for something like three years. They had gone from Freestone county to Wichita Falls. There they had become separated; ■either he had left her, or she had left him. She returned to Teague, in Freestone county. Subsequently he followed her to this point, reaching there about Wednesday before the killing occurred on Monday. In the mean time Minnie Lee Blain had become an employe of appellant in his restaurant, and seems to have had control of it when appellant was absent. The evidence shows, also, that rather harmonious relations had grown up between appellant and Minnie Lee Blain. This aroused the ire of deceased, Brooks, and he made numerous and divers threats' to kill appellant. These were communicated to ap-. pellant. Several of these threats were made during the day preceding the killing at night. It is to be inferred from the testimony that this was all brought about on account of the fact that appellant had been and was then intimate with the woman Blain. On the night of the homicide Mr. Porterfield had come to Teague from Ellis county bringing a negro named Edwards with him in an automobile. He had come for the purpose of securing cotton pickers. After reaching Teague, Mr. Porterfield and his negro, Edwards, secured the services of the deceased to assist them in securing cotton pickers, and for this purpose had gone down into what is termed “the negro quarters.” Appellant, on account of the threats communicated to him, had changed his route of going home, fearing an assassination by deceased and his two brothers. It is shown by the evidence, also, that Porter-field, Edwards, and deceased were standing at or near the depot, and appellant passed near them going in the direction of his home. They followed in the same direction appellant was going until, reaching a certain point, they turned to the right. Appellant went beyond some woods and turned to the right to his home, stating he was afraid to go through the woods for fear of being killed by the deceased.

Reaching his home, appellant sent Nolen after Minnie Lee Blain to come to his house, as he says, for the purpose of settling up with her if she was going to leave him as employé. She had not been about his restaurant for a day or two, and had been in company with deceased. Nolen failing to return with the woman, appellant started out in search of them. After going a short distance, he came upon a crowd in which the deceased, Edwards, Porterfield, and a lot of negroes were assembled, and also where he found Minnie Lee Blain in conversation with the deceased; the deceased having intercepted her, or called her from Nolen, as he was passing along taking her to appellant’s house. Immediately the difficulty occurred. The testimony is widely variant as to the circumstances of the homicide. The state introduced evidence which tended to justify the verdict. The defendant’s personal testimony, and which is corroborated to some extent by .other testimony, was that as he approached the scene deceased turned upon him with what appellant thought was a pistol. Others said they saw nothing in the hands of deceased; still others said they saw something in his hand, but did know what it was. Appellant' was not definite as to what the deceased had in' his hand; but ne is definite as to the fact that deceased turned upon him, and he expected him to execute his threat, and he immediately fired. There was one shot fired, and the evidence is also conflicting as to whether they clinched then, or fell upon the ground, or whether the deceased fell after being struck over the head with a pistol by appellant.

Without going into further detail of the immediate transaction, the question is: Does this suggest the issue of manslaughter? Taking the state’s view of it, it did not. Taking appellant’s view of it, as he himself .testified, the evidence would suggest manslaughter and self-defense. Taking the other testimony, to the effect that deceased rushed upon appellant, and may have had something in his hand or may not — the witnesses differ about this matter— taking these circumstances in the light of th^ previous threats, we are of the opinion that the issue of manslaughter was in the case, and that the jury should have been instructed with regard to this phase of the law. Wherever there is an issue suggested by the testimony favorable to the accused, he is entitled to a presentation of the law on that issue. The strength of the testimony is not a criterion. The criterion is that, if the testimony is in the case, then the issue should be submitted to the jury for their consideration. The testimony of the accused is not the sole criterion of the law applicable to favorable issues to him. If his personal testimony suggests an issue, this should be submitted. If the state’s evidence shows a favorable issue, that issue should be submitted, or if the testimony in its entirety suggests a favorable issue, then the issue should be given in charge. .

. Many cases might be cited in support of this, but it would hardly be deemed necessary at this late date to support this by the opinions of this court as well as the statute. See McLaughlin v. State, 10 Tex. App. 359; Neyland v. State, 13 Tex. App. 536; Pollard v. State, 45 Tex. Cr. R. 121. 73 S. W. 953; Beckham v. State, 69 S. W. 534; Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 909. Numerous other cases might be cited, but in the light of the testimony and settled law of this state it is unnecessary to cite other cases.

The judgment is reversed, and the cause remanded.


author: JENKINS, J.

text:
    PROVIDENT SAVINGS LIFE ASSUR. SOCIETY OF NEW YORK et al. v. ELLINGER.
    (Court of Civil Appeals of Texas. Austin.
    June 25, 1913.
    Rehearing Denied Oct. 8, 1913.
    Writ of Error Denied by Supreme Court March 4, 1914.)
    1. Insurance (§ 47) — Consolidation — Rights of Policy Holders — Liability of ■ New Company.
    Where, on defendant’s insurance business being taken over by the P. Company, the latter offered to assume plaintiff’s policy, but he refused to consent to the novation, the P. Company was under no contractual relations with plaintiff, and hence he could not recover against it for defendant’s alleged breach of contract resulting from the consolidation.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 49; Dec. Dig. § 47.]
    2. Insurance (§ 47) — Consolidation — Breach of Contract — Liability of New Company.
    Where the consolidation of defendant insurance company with the P. Company did not deprive defendant of ability to perform its contracts or render it insolvent, but on the date when plaintiff chose to treat his policy as having been repudiated by defendant, by reason of the consolidation, defendant was amply able to, fulfill the same, the P. Company was not liable in damages to plaintiff on the ground that it had absorbed all defendant’s assets.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 49; Dec. Dig. § 47.]
    3. Contracts (§ 312) — Breach—Mode.
    A contract can be breached in only one of three ways, viz.: By failure to perform, by present positive declaration of an intention not to perform and acceptance of such declaration by the other party as a repudiation of the contract before performance is again entered upon, and by inability to perform.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 12791/a; Dec. Dig. § 312.]
    4. Insurance (§ 247) — Contract—Breach.
    Where an insurance policy obligated the insurer to pay $3,000 to insured’s wife at his death, there could be no breach by the insurer by failure to perform prior to the insured’s death.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 534-536; Dec. Dig. § 247.]
    5. Contracts (§ 313) — Anticipatory Breach —Refusal to Perform — Declaration.
    Where an anticipatory breach of contract is attempted to be shown by the declaration of the party that he will not perform the same, such declaration must be in positive and unconditional terms.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279: Dec. Dig. § 313.]
    6. Insurance (§ 237) — Contract—Breach-Refusal to Perform.
    Defendant insurance company, on consolidating with the P. Company, notified its policy holders of the fact, and the P. Company requested they accept it in lieu of defendant, but the letters did not contain any positive declaration that defendant would not continue to perform its contracts with holders refusing to accept the P. Company in lieu of it, nor did defendant surrender its corporate existence or go out of business as to contracts theretofore written. Policy holders were informed that branch offices of defendant would gradually be discontinued and premiums should be forwarded direct to defendant’s New York office., but until further advised they might be remitted as at present. Held, that such facts did not show that defendant had breached its insurance contract with plaintiff by refusing to perform the same so as to entitle plaintiff to recover damages therefor.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. § 237.]
    7. Insurance (§ 237) — Contracts—Breach-Consolidation.
    Where, notwithstanding consolidation of defendant insurance company with the P. Company, defendant’s affairs had never been liquidated, and in addition to its capital stock of $100,000 it had on deposit with the New York Superintendent of Insurance $100,000 in bonds, loans, and mortgages valued at $101,710, and its report filed with the Commissioner of Insurance December 31, 1912, showed a surplus of $255,409 over all liabilities, including capital stock, it did not appear that by such consolidation it had breached its policy with plaintiff by pauperizing itself so that it was unable to perform the same.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. § 237.]
    8. Insurance (§ 237) — Policy—Breach of Contract — Measure of Damages.
    In an action for an insurance company’s breach of an ordinary life policy, plaintiff’s measure of damages was the value of the policy at the time of its breach, consisting of the difference between what it would have cost him to mature the policy from the time of such breach to end of his expectancy, had there been no breach, and what it would have cost him to mature a like policy in a solvent company for the same period, and' not the amount of premiums paid, with interest.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. § 237.]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Action by Joseph Ellinger against the Provident Savings Life Assurance Society of New York and others. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    Baker, Botts, Parker & Garwood and J. G. Townes, Jr., all of Houston, for appellants. John T. Duncan, of La Grange, for appellee.

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

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

   Findings of Fact.

JENKINS, J.

On July 11, 1891, the Provident Savings Life Assurance Society of New York, hereinafter referred to as the Provident Company, issued to appellee an “annual renewable term policy” for $3,000, payable at his death to his wife. This policy by its terms was to remain in force for one year from the date of its issuance in consideration of the premium then paid, but was renewable from year to year at the option of the insured, without medical examination, upon the payment of certain stipulated annual premiums, which were to be increased each year from $50.76, the amount of the first premium at appellee’s then age of 39, to $124.50, at the age of 60 years. It was provided that a failure to pay the renewal premium, designated in said policy, for each succeeding year, on or before July 1st, should work a forfeiture of said policy. Appellee paid such premiums to and including July 1, 1910, which kept his policy in force to July 1, 1911. Thereafter he declined to pay any further premium for the alleged reason that the Provident Company had repudiated its contract with him by reason of its transactions with the Postal Life Insurance Company of New York, hereinafter referred to as the Postal Company, as hereinafter set out. Said transactions were in substance as follows: Appellee received a printed letter from the president of the Provident Company, dated January 19, 1911, stating that said company had been consolidated with the Postal Company, to which it had transfered all of its “admitted assets,” and that the latter company would carry out the contracts of the former. He received a letter from the president of the Postal Company of same date to like effect, and also a contract for him to sign, accepting the Postal Company as his insurer in lieu of the Provident. This he declined to sign. On June 15, 1911, he received a notice from the Postal Company, notifying him to pay his next renewal premium to that company. 1-Ie never received any communication of any character from the Provident Company subsequent to receiving said circular letter of January 19, 1911. On July 24, 1911, appel-lee’s attorney wrote to the Provident Company that he had elected to treat its actions as a repudiation of its contract, and demanded a return of all premiums paid by him, with 6 per cent, interest thereon from the respective dates of such payments. The Provident Company did not reply to this letter. On November 2; 1911, appellee instituted this suit, alleging as his cause of action against the Provident Company its repudiation of its contract, and as against the Postal Company its assumption of said contract and its absorption of all the funds of the Provident Company. He recovered judgment against each of said companies for $2,215.55. If appellee had shown himself entitled to recover the full amount of the premiums paid by him, the judgment should have been for only $1,895.12, as the undisputed evidence shows that the aggregate amount of premiums paid by him was $1,160.52, and the interest thereon would amount to $734.60.

Opinion.

1. We sustain appellant’s assignment that no judgment should have been rendered against the Postal Company. No contractual relation ever existed between it and appellee. It offered to enter into a contract with him by assuming the obligations in the policy issued by the Provident. This the appellee specifically declined. Lovell v. Ins. Co., 111 U. S. 264, 4 Sup. Ct. 390, 28 L. Ed. 426.

2. Appellee, if entitled to recover against the Provident Company, would have been entitled to judgment against the Postal also, if it had been shown that the latter had absorbed the funds of the former company, and thereby rendered it unable to perform its contract with appellee. The evidence does not sustain this allegation. S. H. Wolf, who appears to have been a competent and disinterested expert in insurance matters, testified that he had examined the books of the Provident Company; that he considered it a solvent corporation, and that it was such on July 11, 1911; that the capital stock of said company was $100,000; that its affairs had never been liquidated; that it had on deposit with the Superintendent of Insurance of New York $100,000, consisting of bonds, loans, and mortgages, of the value of $101,710, and that its report filed with said Commissioner of Insurance as of December 31, 1911, showed a surplus of $255,409 over all liabilities, including capital stock. This does not show the Provident Company had become pauperized by reason of its transactions with the Postal Company on December 31, 1910, the date of the alleged consolidation, but, on the eon-trary, that it was solvent and abundantly able to carry out its contract with appellee, when be chose to treat his contract as having been repudiated, and so remained at least until December 31st thereafter, and, for aught that appears, still is. There is no evidence in the record tending to contradict this testimony.

3. Appellants contend, under proper assignments of error, that no judgment should have been rendered' against the Provident Company for the reason that the evidence fails to show any breach of the contract on the part of that company. We sustain this assignment of error. A contract can be breached in only one of three ways, viz.: (1) By a failure to perform; (2) a present positive declaration of an intention not to perform, and acceptance of such declaration by the other party as a repudiation of the contract before performance is again entered upon; and (3) inability to perform. 7 Am. & Eng. Ency. Law, 149.

4. In this case there could have been no failure to perform the contract on the part of the Provident Company, for the reason that the time of performance, to wit, the death of the insured, had not arrived.

6. Where an anticipatory breach of a contract is attempted to be shown by the declaration of the party that he will not perform the same, such declaration must be in positive and unconditional terms. Kilgore v. Association, 90 Tex. 142, 37 S. W. 598; Starke v. Guffey, 98 Tex. 542, 86 S. W. 1, 4 Ann. Cas. 1057; Lovell v. Ins. Co., supra; Jameson v. Ins. Co., 14 App. Div. 380, 44 N. Y. Supp. 15.

The facts in brief, with reference to this transaction, are set forth in our findings of fact herein. The circular letters referred to did not contain a positive declaration that the Provident Company would not continue to perform its contract with appellee if he refused to accept the Postal Company in lieu of it; nor that the Provident had surrendered its corporate existence or gone out of business as to its insurance contracts theretofore written. On the contrary, the circular from the Postal Company contained, among other things, the following: “The branch offices of the Provident will gradually be discontinued, and premiums be forwarded by the policy holder himself direct to the New York office, at 35 Nassau street. Until further, advised, premiums will be remitted as at present.” Under this statement, the appellee should have remitted his premium on or before July 1, 1911, to the Provident Company, at 35 Nassau street, where such company had long maintained its office. The policy provided that payment of premiums should be made at the company’s office in New York, but, for convenience of its policy holders, payments might be made to an authorized agent of the company, “but only in exchange for a receipt signed by the president and secretary and countersigned by said agent.” The appellee testified: “As far as I know, the Provident Savings Life Assurance Society of New York has ceased to do business in this state.” If this be taken as proof that the Provident Company had ceased to do business in Texas on July 1, 1911, still, under the above provision of the policy, it was the duty of appellee to forward his premiums to the company’s office in New York. There is no evidence that, had he done so, his money would not have been received by the Provident Company, and his policy continued in force by that company. On the contrary, the witness Wolfe testified that the Provident Company was accepting premiums and continuing in force contracts with policy holders, who preferred not to accept the Postal Company as their insurer.

6. The appellee was not entitled to recover against the Provident Company on the ground that that company had breached the contract by pauperizing itself and thereby becoming incapable of performing the contract. It had not done so, as appears from the second paragraph of this opinion. In the case of Ins. Co. v. Lovejoy, 149 S. W. 398, cited by appellee, the company had transferred all of its assets, about $20,000,000, except $25,000, thereby rendering itself incapable of performing its contracts.

7. We sustain appellants’ assignment of error that even had the Provident Company breached its contract with appellee, and had the Postal Company rendered itself liable for the damages incurred by reason of such breach, the amount of the premiums paid by appellee, with interest thereon, was not the measure of appellee’s damages.

The only case directly upon this point'in this state is Supreme Lodge K. of P. v. Neeley, by this court, 135 S. W. 1046. In that case we held, after a thorough and careful investigation of the authorities, that the proper measure of damages for the breach of a life insurance contract, where the insured is insurable at the time of such breach, is the value of said policy at the time of such breach, and that such present value is the difference between what it would have cost him to mature said policy from the time of such breach to end of his expectancy, had there been no breach, and what it would cost him to mature a like policy in a solvent company for the same period. We have had no occasion to change our views on this subject. In addition to the authorities cited in the Neeley Case, supra, in support of our holding therein, see Harris v. Scrivener, 78 S. W. 705; Supreme Lodge K. of P. v. Neeley, 135 S. W. 1046; Life Ass’n v. Ferrenbach, 144 Fed. 342, 75 C. C. A. 304, 7 L. R. A. (N. S.) 1163; Krebs v. Ins. Co. (C. C.) 156 Fed. 294; People v. Ins. Co., 78 N. Y. 114, 34 Am. Rep. 529; Skudera v. Ins. Co., 17 Misc. Rep. 367, 39 N. Y. Supp. 1059; Williams v. Metropolitan Life Ins. Co., 35 App. Div. 82, 54 N. Y. Supp. 595; Keyser v. Life Ass’n, 60 App. Div. 297, 70 N. Y. Supp. 32; Langan v. A. L. of H., 34 Misc. Rep. 629, 70 N. Y. Supp. 663; Kelly v. Ins. Co., 106 App. Div. 352, 94 N. Y. Supp. 601; Mailhoit v. Ins. Co., 87 Me. 374, 32 Atl. 989, 47 Am. St. Rep. 336; Ins. Co. v. Binford, 76 Va. 103; Clemmitt v. Ins. Co., 76 Va. 355; Ins. Co. v. Houser, 89 Ind. 258; Merrick v. Ins. Co., 124 Wis. 221, 102 N. W. 593, 109 Am. St. Rep. 931; May on Ins. § 567; Bliss on Ins. § 415; Cooke on Life Ins. § 104; Cyc. 25, 761, 762.

Appellee cites, in support of his contention that the premiums paid, with interest thereon, is the proper measure of damages: A. L. of H. v. Batte, 34 Tex. Civ. App. 456, 79 S. W. 629; Ericson v. S. R. of Mystic Circle, 105 Tex. 170, 146 S. W. 160; and Ins. Co. v. Lovejoy, 149 S. W. 398. None of these cases sustain his contention. For a full discussion of the Batte case, see Neeley’s Case, supra.

The issue as to the measure of damages was not raised in the Ericson Case, and was not referred to by this court (131 S. W. 92), nor by the Supreme Court (105 Tex. 170, 146 S. W. 160). The facts in the Ericson Case were that Ericson joined a local lodge of a fraternal insurance company, chartered under the laws of Ohio under the name of the Fraternal Mystic Circle. Its ruling body or board of directors was known as the Supreme Ruling of the Fraternal Mystic Circle. In April, 1895, some years after the Mystic Circle was chartered in Ohio, a fraternal or-ganisation was chartered in Pennsylvania under the name of the Supreme Ruling of the Fraternal Mystic Circle. Some of the members of the Ohio corporation were members of the Pennsylvania corporation. On June 5, 1895, the Fraternal Mystic Circle of Ohio passed a resolution transferring'all of its assets and insurance contracts to the Pennsylvania corporation, to be effective • when accepted by the latter corporation. Thereafter the Pennsylvania corporation accepted said transfer, and said action was ratified by Ericson, who thereafter paid his assessments for a number of years to the Pennsylvania society. In 1907 the Pennsylvania society adopted a constitution authorizing the Supreme Executive Committee of said society “to re-rate members taken over from another society.” Thereafter the Supreme Executive Committee re-rated Ericson, materially raising his assessments. This it was not authorized to do, unless Ericson was “a member taken over from another society.” We held that the Fraternal Mystic Circle, chartered under- the laws of Ohio, and the Supreme Ruling of the Fraternal Mystic Circle, chartered under the laws of Pennsylvania, were different societies, and that consequently Ericson was “a member taken over from another society.” The Supreme Court held that he was not, and consequently there was no authority to re-rate him. There was a further issue in the case as to whether said constitutional provision was applicable to members who had theretofore been taken over from other societies, or only as to those who might thereafter be taken over. We held that it applied to membefs theretofore taken over; the Supreme Court that it did not. Such being the holding of the Supreme Court, it followed that the increase in Ericson’s rate was without lawful authority. The Supreme Court held that such re-rating amounted to a repudiation of the contract; no other issues were presented in that case in either this or in the Supreme Court.

In the Lovejoy Case Mr. Justice McMeans, speaking for the court, said: “We are not prepared to dissent from the views expressed by Judge Jenkins in the Neeley Case, in so far as the rule governing the measure of damages is applied to the facts of that case.” The fact referred to, which differentiated the Neeley Case from the Lovejoy Case, was that Neeley was reinsurable at the time the contract was breached and Lovejoy was not.

There is no evidence in this case tending to show that appellee was not insurable at the time of the alleged breach of the contract. On the contrary, the evidence establishes the fact that the Postal Company was a perfectly solvent company, and that it offered to carry the same policy that appellee held upon the same terms, without medical examination. Such being the case, appellee could have suffered no damage by the alleged breach of his contract with the Provident Company, even had such breach been shown.

Two disinterested and competent experts testified that appellee’s policy had no cash value at the time of the alleged breach thereof, and no witness testified to the contrary. That this must necessarily have been true, if appellee had received the proper rebates on his several premiums, is apparent to any one who has any knowledge of the basis upon which an “annual renewable term policy” is issued. Such policies are based on the theory that the premium charged is just enough to pay the running expenses of the company, the death claims for the year, and a small excess, called “the guaranty fund,” to provide for any excess in the average number of deaths that may possibly occur during the year. This excess is not carried as a reserve, as is the case with level premium policies, but, if not consumed in death losses during the year, is prorated and paid back to the insured, usually by allowing the same as a credit on the next year’s premium. This is made plain by the express provisions of the policy herein sued on, from which we quote as follows: “After deducting the expense charge, which is limited to four dollars per annum on each thousand dollars insured, the society agrees to divide the residue of each renewal premium received by it upon this policy as follows: Such amount as shall be required for this policy’s share of death losses will be appropriated as a death fund, to be used only in settlement of death claims, the remainder thereof will.be retained as a guaranty fund. The amounts so retained on account of this policy will be used toward offsetting any increase in the premium on this policy from year to year.’” The evidence shows that such excess was allowed the appellee from year to year, and that the aggregate of the premiums paid by him in cash was $1,160.52. Of this $252 was appropriated to the expense fund. The evidence shows that the amount “required for this policy’s share of death losses” and actually paid out by the society as provided in the policy was $882.66, leaving a balance in the guaranty fund from premiums paid by appellee of $25.86, which is the amount he would have been entitled to have recovered, had the Provident Company breached the contract.

In saying that an annual renewable term policy, such as the one herein sued on, could never have a cash surrender value at the end of any year, beyond the small amount, if any, of his last annual premium not consumed by the expense account and death claims, we do not mean to say that such policies are not valuable for the purpose for which they are issued, viz., protection, which is the leading purpose of all life insurance. Eor such purpose they are the most equitable of all policies, as they enable the insured to obtain insurance for each current year at .actual cost. In consequence of this, insurance under such a policy is obtained very cheaply during the early years of one’s life, when protection to a growing family, or provision to meet debts incurred in establishing a business, is usually most needed, and in later years, when the premium becomes burdensome, the insured can, if he chooses, let the policy lapse.

The appellee got all he paid for, and the protection he received under his policy was worth all that it cost him, less the $25.86 remaining in the guaranty fund.

For the reasons here stated, the Judgment of the trial court is reversed, and judgment here rendered for appellants.

Reversed and rendered.


author: RAMEY, C. J.

text:
    TEXAS TRACTION CO. v. WILEY.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 28, 1914.)
    1. Street Railroads (§ 91) — Collision—Evidence— Speed Ordinance.
    In an action against an interurban electric railroad for injuries in a collision at a street crossing, it was error to admit a speed ordinance relating to railway trains, such an ordinance having no application to trains propelled by electricity.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dee. Dig. § 91.]
    2. Street Railroads (§ 113) — Collision with Automobile — Evidence — Contributory Negligence.
    In an action against an electric railroad for injuries in a collision, evidence as to what a witness would have done if he had been back from the street a certain distance and heard the gong and seen the car was irrelevant, being conjectural and throwing no light on the issue of contributory negligence under consideration.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 229-238; Dec. Dig. § 113.]
    3. Negligence (§ 122) — Contributory Negligence-Burden of Proof.
    In a personal injury case, wherein plaintiff’s evidence raised the question of contributory negligence, it was error to place the burden on defendant to show such negligence.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dec. Dig. § 122.]
    4. Street Railroads (§ 118) — Collision with Automobile — Action fob Injuries— Instructions.
    In an action against an interurban electric railroad for injuries ' in collision at a street crossing, the court, in charging on the issue of negligence, should omit any reference to an ordinance relating to speed of steam engines.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.]
    5. Street Railroads (§ 118) — Collision with Automobile — Crossing Accident — Action for Injuries — Instructions.
    In an action against an interurban railroad for injuries in a collision at a street crossing, it was error to give a charge making defendant liable, not only if its servants operating the ear did in fact discover plaintiff’s position before it was too late to stop it, but also if they, “by the exercise of ordinary care, could have discovered him in a position of danger.”
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.]
    6. Street Railroads (§ 118) — Collision with Automobile — Action for Injuries— Instructions.
    Where the evidence in an action against an interurban railroad for injuries in collision at a street crossing called for a charge on accident, it was error to refuse a charge to find for defendant, if plaintiff’s wife and automobile were injured as the result of a cause which defendant by ordinary diligence could not have foreseen and guarded against.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dee. Dig. § 118.]
    7. Street Railroads (§ 91) — Collision with Automobile — Violation of Ordinance — Negligence.
    Failure of an interurban car to stop in front of a station on its way to the rear to unload baggage and freight, in course of which it. collided with an automobile at a street crossing adjoining the station, was not a violation of an ordinance requiring cars to stop at stations, and was not negligence under the law.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dec. Dig. § 91.]
    8. Negligence (§ 141) — Contributory Negligence-Instructions.
    Where the court in a negligence case charged on contributory negligence in a general way, but did not tell the jury that if plaintiff was guilty of contributory negligence he could not recover even though they might believe from the evidence that defendants were also guilty of. negligence, it erred in failing to give a requested charge to that effect.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.]
    9. Negligence (§ 141) — Contributory Negligence-Instructions.
    Where thé court did not present in an affirmative way the defense of contributory negligence, it was error to refuse a special charge calling the jury’s attention to facts which, if found to be true, would defeat a recovery on that issue. /
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.]
    10. Steeet Railroads (§ 118) — Collision with Automobile — Action eor Injuries— Instructions.
    In an action against an interurban railroad for injuries in a collision at a street crossing adjoining a station, wherein it appeared that employés of defendant on its depot platform saw plaintiff's danger in time to have prevented the collision had they warned him in time, but did not do so, and the jury may have concluded from the court’s charge that their failure to do so was imputable to defendant, it was error to refuse a charge which precluded the jury from considering evidence of such omission as showing negligence attributable to defendant.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dee. Dig. § 118.]
    11. Trial (§ 260) — Instructions—Requests. Where the court charged on discovered peril
    in an action against an interurban railroad for injuries in a collision at a street crossing, but a requested charge on the same subject was fuller, and more accurately expressed the law with reference to the facts, it was error for that reason not to give it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.].
    12. Street Railroads (§ 118) — Collision with Automobile — Instructions.
    Where, in an action against an interurban railroad for injuries in a collision with an automobile at a street crossing, the evidence calls for a charge on accident, it was error to refuse a charge to find for defendant if it was shown that plaintiff’s injury was due to misfortune and misadventure, and that defendant’s servants in charge of the car exercised, under the circumstances, ordinary care in its operation.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.]
    Appeal from District Court, Collin County; G. R. Smith, Special Judge.
    Action by T. W. Wiley against the Texas Traction Company. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Templeton, Beall & Williams, of Dallas, and J. R. Gough and Garnett & Hugston, both of McKinney, for appellant. W. R. Abernathy and R. C. Merritt, both of McKinney, for appellee.

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

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

   RAMEY, C. J.

Appellee sued the appellant to recover damages for injuries to himself and to his wife, and to his automobile, sustained by reason of a collision between plaintiff’s automobile and appellant’s interurban car in the town of McKinney. Defendants answered by general and special demurrers, general denial, and specially contributory negligence in that plaintiff was running his machine at a rapid rate of speed in violation of a city ordinance, at the crossing of two streets running at right angles with each other, upon one of which appellant operated its cars, and upon the other appellee was traveling, and that in approaching said crossing appellee was looking off in a different direction from the way he was traveling. A trial resulted in a verdict and judgment against both defendants for $3,500, from which judgment this appeal is prosecuted.

Reasons for Reversal.

The court erred in admitting in evidence ordinance No. 88, limiting the speed of railway trains within the city of McKinney. Said ordinance related to railways propelled by steam, and had no application to trains propelled by electricity.

The court erred in permitting, the plaintiff, Dr. T. W. Wiley, to answer the following question: “Q. If you had been back up Louisiana street 60 feet, and had seen the Interurban car or heard the gong if it had been sounded, what would you have done? A. If I had been back 20 feet I could have stopped it” — and the further question, “If you had been in 20 feet of the track and heard the gong and seen the car what would you have done? A. It seems to me that the question requires a most emphatic answer, and I am going to give it. I Would have been either a knave or a fool if I had not stopped the ear, or made an attempt to do it, and I certainly would have done it, and I would have stopped it.” The evidence is irrelevant, being conjectural, and threw no light upon the issue under consideration.

The court erred in its charge in that it placed the burden of proof on defendants to show contributory negligence on the part of plaintiff. Under plaintiff’s evidence the question of contributory negligence on his part was raised, and, such being the case, it was wrong to place the burden on the defendants. Ordinarily the rule is that the burden of proof to establish plaintiff’s contributory negligence is upon the defendant, but to this rule there are two well-defined exceptions, which are stated in Railway Co. v. Sheider, 88 Tex. 162, 30 S. W. 904, 28 L. R. A. 538, to be: First. “Where the legal effect of the facts stated in the petition is such as to establish prima facie negligence on the part of plaintiff as a matter of law, then he must plead and prove such other facts as will rebut such legal presumption. The plain reason is that by pleading facts which, as a matter of law, establishes his contributory negligence, he has made a prima facie defense to his cause of action which will be accepted as true against him both on demurrer and as evidence on the trial, unless he pleads and proves such other facts and circumstances that the court cannot, as a matter of law, hold him guilty of contributory negligence. When he has done this, he has made a case which must be submitted to the jury. For instance, if plaintiff’s petition shows that he was injured by defendant’s cars while on the track under circumstances which in law would make him a trespasser, prima facie then the law would raise a presumption of contributory negligence against him, for which his petition would be bad on demurrer, and it would be necessary for him to plead some fact or circumstance rebutting such presumption, such as that he was, after going upon the track, stricken down by some providential cause, in order to save his petition, and on the trial the burden would be upon him to establish such case. Railway v. Murphy [46 Tex. 356, 26 Am. Rep. 272], and other cases above cited; Railway v. Sympkins, 54 Tex. 618 [38 Am. Rep. 632]. Second. When the undisputed evidence adduced on the trial establishes prima facie, as a matter of law, contributory negligence on the part of plaintiff, then the burden of proof is upon him to show facts from which the jury, upon the whole case, may find him free from negligence ; otherwise the court may instruct a verdict for defendant, there being no issue of fact for the jury. Sanchez v. Railway, 88 Tex. 117 [30 S. W. 431], and eases cited; Cassiday v. Angell, 12 R. I. 447 [34 Am. Rep. 690]; Railway v. Sympkins, 54 Tex. 618 [38 Am. Rep. 632].’’

As the case will be reversed, we call attention to an error of the court’s charge on the issue of negligence; he called attention to ordinance 88, relating to the speed of steam engines, etc., alleged by plaintiff in his original petition. By an amended supplemental petition plaintiff pleaded ordinance 152 of said city, relating to electric railways. While this error under the circumstances is not such as to cause a reversal, it would be better to omit such reference on another trial. The court should have told the jury that defendant had the right to run its cars at the rate of eight miles an hour, and have withdrawn from their consideration ordinance 88 which prohibits a speed of more than six miles per hour.

The court erred in the twelfth paragraph of its charge, in that it makes appellants liable, not only if their servants operating the car did in fact discover appellee’s position before it was too late to stop the car, but also if they, “by the exercise of ordinary care, could have discovered him in a position of danger.” In Railway v. Breadow, 90 Tex. 31, 36 S. W. 412, in treating the principle of discovered peril, it is held: “The burden of proof was upon the plaintiff in this case, in order to recover for a breach of such new duty, to establish, not that the employés might, by the exercise of reasonable care, have acquired such knowledge, but that they actually possessed it.” When a charge relates to discovered peril, it is misleading to tell the jury that by the exercise of ordinary care the danger might have been discovered by the employés operating the train. Railway Co. v. McMillan, 100 Tex. 564, 102 S. W. 103, and other decisions of our Supreme Court, holds with the Breadow Case.

The court erred in refusing defendants’ special charge as follows: “If you find and believe from the evidence that the plaintiff’s wife and his automobile were hurt and injured as alleged, yet if you find that such injuries were the result of a cause which the defendants, by the use of ordinary diligence, could not have foreseen and guarded against, then you are instructed that the same would have been an accident, and if you so find and believe, you will find for the defendants.” The evidence in this case was of such a character that a charge on accident was called for.

The court erred in giving plaintiff’s fourth special instruction, which is, in effect, that under the law it was negligence on the part of defendant in running its car past a regular station without stopping, etc. Ordinance 152 of the city of McKinney regulating the operation of cars, reads:

“Sec. 2. All interurban electric local cars for passengers are hereby required to stop at street crossings at one time within four blocks for taking on or letting off passengers when there are passengers to alight or board the cars: All interurban cars known as (special) cars and ‘Express Limited’ (passenger) are hereby required to stop at street crossings within the city limits at least once within every eight blocks within the city limits for the purpose of taking on or letting off passengers where there are passengers to alight from or board the cars.
“Sec. 3. Any and all persons operating electric interurban cars may designate the stops provided for in section two but should such person or company fail to do so the said stops shall be counted from the passenger station of said person or company located within the city, provided, however, that the interurban express cars strictly should not be required to stop within the said city limits except at regular stations.”

The evidence shows that the collision occurred at the crossing of Louisiana and Kentucky streets, on the northwest corner of which is situated appellant’s depot. The front of said building is used for passengers and the rear is used for freight. Appellant’s track runs north and south along Kentucky street. At a point about the south line of Louisiana street a spur or switch branches from the main track and runs in a northwesterly direction to the rear end of the depot, where baggage and freight is received and discharged on and from the cars. Defendants’ express car in going south passed the front of the depot, intending to go down to where the spur leaves the main track, and then run out to and stop at the freight department, as had been the custom ever since the construction of the road. We think the manner of conducting the running of baggage and freight cars was in keeping with the city ordinance. The stopping of the express car in front of the depot would have served no good purpose. It could not unload freight at that point, and cars going south running down to the spur and then up to the rear of the depot meet with the spirit of the ordinance if not with the strict letter thereof.

The court erred in not giving defendants’ special charge “e,” which is as follows : “The court having given its main charge to the jury and having refused defendants’ requested charge numbered 1, said defendants now here request, the court to charge the jury as follows: (e) If you should find and believe from the evidence that the plaintiff’s wife was injured and his automobile was injured and damaged at the time and place alleged by him, yet if you find and believe that the same was done while the plaintiff was attempting to cross the defendants’ track on Louisiana street in McKinney, and that in approaching and trying to cross the track at such place the plaintiff was propelling his automobile at a high and dangerous rate of speed, if he did, and that an ordinarily prudent person similarly situated as the plaintiff was would not have approached and attempted to cross the defendants’ track at the rate of speed the plaintiff was then going, and that in doing so, if he did, the plaintiff was then and there guilty of an act of negligence, and that such act of negligence on his part, if you find that he was negligent, caused, or contributed toward causing, the injury to his wife and to his automobile, then he cannot recover, and in such case you will find for the defendants even though you may find and believe that said defendants, or either of them, were also guilty of negligence, unless you find for plaintiff on the issue of discovered peril.” This charge tells the jury that if plaintiff was guilty of contributory negligence, he could not recover, even though they might believe from the evidence that the defendants were also guilty of negligence. The court charged on contributory negligence in a general way, but did not embrace this feature therein. Railway Co. v. Edwards, 100 Tex. 22, 93 S. W. 106.

The court erred in refusing defendants’ special charge “f,” which is as follows: “If you should find and believe from the evidence that plaintiff’s wife was injured and his automobile was injured and damaged at the time and place, as alleged, yet, if you find that the same was done while the plaintiff was attempting to cross defendants’ track on Louisiana street in McKinney, and that in approaching and trying to make the crossing of defendants’ track at such place, the plaintiff was looking off in a direction other than that in which he was then going, and was not paying attention and was not exercising ordinary care in making such crossing, if you find he was doing so, and that an ordinarily prudent person similarly situated as the plaintiff was would not have approached and attempted to make the crossing of defendants’ track looking away in another direction, if he did, or in not paying proper attention at the time, if he did, or in not exercising ordinary care in making such crossing, if he did, and that in doing such acts, or either of them, if he did, the plaintiff was then and there guilty of an act of negligence, and that such act of negligence on his part, if you find he was negligent, caused, or contributed towards causing, the injury to his wife and to his automobile, then he cannot recover, and in such case you will find for the defendants, even though you may find and believe that the defendants, or either one of them, were also guilty of negligence.” This charge calls the jury’s attention to certain facts, which, if found to be true, would defeat a recovery. The defendants have the right to have their defenses presented in an affirmative way, and where the court fails to so present it and a special charge is asked covering the issue and it is refused, it will cause a reversal of the case. Railway Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058.

The court erred in not giving defendants’ requested charge, “m,” which reads as follows: “If the defendants’ servants operating and controlling their express car with which the plaintiff’s automobile collided saw the same when it was reasonably far enough away from defendants’ track to have stopped in time to have avoided a collision, they had the right to presume that the plaintiff would stop the same before it collided with the defendants’ car. It was only after the defendants’ servants and agents operating and managing their said car realized that the plaintiff was in danger, and that he could not or would not stop his automobile in time to avoid a collision with the defendants’ car, that the duty devolved upon them to use all the means in their power and at their command consistent with the safety of defendants’ car to avoid injuring the plaintiff. And if you find and believe from the evidence that the defendants’ servants who were then operating and managing their said car at the time, after they saw and realized that plaintiff could not or would not stop said automobile in time to avoid such collision, did use all the means in their power and at their command to avoid injuring the plaintiff, the defendants would not be guilty of negligence on the charge of discovered peril, and on this issue you should find for said defendants; and in this connection you are told that, if some one or more of the defendants’ servants other than the one or ones who were operating and managing the car at the time in question saw, or could have seen, the plaintiff’s peril sooner or in time to have avoided injuring the plaintiff, then the failure of such servant or servants who were not engaged in operating such car at the time to give notice could not be charged or considered as negligence on the part of the defendants.” Some of the defendants’ employés who were not engaged in the operation of the car were on the depot platform and saw the collision and saw the appellee’s danger in time to have prevented the collision, had they warned him in time, but they did not do so. Erom the wording of the court’s charge the jury may have concluded their failure to warn plaintiff was imputable to the defendants. The latter part of the charge called the jury’s attention to the law to the effect that they could not consider said testimony as showing negligence attributable to the defendants ; therefore said charge should have been given. The court charged upon discovered peril, but the requested charge was fuller and more accurately expressed the law with reference to the facts.

The court erred in not giving special charge, “n,” requested by appellant, which is as follows: “If you find and believe from the evidence that the injury to the plaintiff under all the facts and circumstances in proof before you was through misfortune and misadventure, and that defendants’ servant in charge of said express car exercised, under the circumstances, ordinary diligence and care in the management and operation of said ear at said time, then the jury are instructed that the plaintiff cannot recover, and, if you so believe, find for the defendants.” We think under the facts of this case said charge should have been given.

The judgment is reversed, and the cause remanded.


author: RAINEY, C. J.

text:
    COCA-COLA CO. v. WILLIAMS et al.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1914.
    Rehearing Denied March 14, 1914.)
    1. MASTER AND SERVANT (§ 189’’) — LIABILITY eor Wrongful Death — Vice Principal.
    A foreman in a factory, who had sole charge of the plant and entire management and control in the absence of the general manager, with power to employ and discharge servants, was the “vice principal” of his employer, who was therefore liable for his negligent or wrongful acts causing the death of an employs.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.]
    2. Appeal and Error (§ 1195) — Second Appeal-Law of the Case.
    Where, on appeal, the court held that the case should have been submitted to the jury, the holding is conclusive on a subsequent appeal in the same case, where the facts and issues are practically the same.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. 1195.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by Lurena Williams, in behalf of herself and minor children and of others, against the Coca-Cola Company. From a judgment in favor of plaintiff and her children, defendant appeals.
    Affirmed.
    Smith, Robertson & Robertson, of Dallas, for appellant. Ed. Sewell and Carden, Starling, Carden, Hemphill & Wallace, all of Dallas, for appellees.

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

   RAINEY, C. J.

Lurena Williams in behalf of herself and her three minor children,, and also for her mother, Yina Williams Davis, and Adam Davis, her husband, brought this suit against the appellant, Coca-Cola. Company, to recover damages resulting from: the death of her husband, Gardner Williams, whose death was caused from the negligence of said company.

Appellant answered by: (1) A general demurrer; (2) a general denial; (3) assumed risk; (4) contributory negligence; and (5) that the injuries resulted from an accident that could not have been foreseen or anticipated.

A trial resulted in a verdict and judgment in favor of Lurena Williams and her three-children for $9,000, and against Yina Williams Davis and her husband, Adam Davis,, from which judgment the Coca-Cola Company has appealed.

The petition of plaintiff alleged: “That. Lurena Williams was the widow, and Luten-ner Williams, Robert Lee Williams, and Leon. Williams were the minor children, of Gardner Williams, deceased. That Vina Williams-Davis was the mother of Gardner Williams, deceased, and that she was the wife of Adam Davis. That the father of Gardner Williams was dead. The petition further alleged that on January 18, 1911, and prior thereto, the defendant was a corporation engaged in the business of manufacturing Coca-Cola at Dallas, Tex., at which place it had a factory and manufacturing plant. That Gardner Williams was employed by the agents and officers of the defendant as a common laborer- and factory hand, and that, while so employed, he was killed as a direct and proximate result of the negligence of the defendant and its vice principal. The petition alleged: -That the duties of Gardner Williams-as an employe of the defendant consisted in helping cook and mix the ingredients used in making Coca-Cola. That such ingredients were combustible and highly inflammable, which fact was only known to the officers of' the defendant, and was not known to Gardner Williams. That on the day of Williams’ death, preparations had been made to make-some Coca-Cola. That Williams and several others were engaged in making a mixture known as ‘7-X,’ which mixture was in a barrel, the only opening of which was a bunghole. That Gordon Van Winkle, the foreman of Gardner Williams, without warning or-notice, applifed a lighted match to the bunghole of the barrel, which it was alleged contained inflammable and combustible matter, causing said barrel to explode, saturating-Williams with the liquid from the barrel,. setting him on fire, fatally burning him. That Van Winkle knew ‘7-X’ was combustible and inflammable, but Williams did not. That when the barrel exploded Williams suf- • fered the injuries causing his death. That said injuries and death were caused and-. brought about by the gross, inexcusable negligence of the defendant. The petition fur-' ther alleged: ‘The defendant was negligent in that it failed to exercise ordinary care to furnish the said Gardner Williams a reasonably safe place to do his work, and that it caused, allowed, and permitted such lighted match to be brought about the said inflammable and combustible liquid, or where the same was, and in that the acts of the said vice principal, as herein set out, while acting within the scope of his employment, and while doing an act of the defendant itself, made such place so that' it was not reasonably safe for deceased to do his work, and was negligent in not warning the deceased, Gardner Williams, of the combustible and inflammable nature of the liquid and of the danger of its exploding and igniting by fire, and were negligent in that the said rice principal, while acting for the defendant as aforesaid, did strike said match and apply it to the bunghole of the barrel, which contained said inflammable and combustible ingredients, and were negligent in not warning the deceased, Gardner Williams, that the said foreman was going to strike said match, and were negligent in keeping said inflammable and combustible liquids in and around said premises in barrels and other containers with open bungholes, whereby the same could easily ignite and explode — all of which acts of negligence proximately caused the death of the said Gardner Williams.’ ”

The evidence establishes all the material allegations of the petition, and it further shows: That one Chandler was general manager of appellant’s plant at Dallas, and that at the time of the accident he was absent from Dallas. That Gordon Van Winkle, the foreman, had authority to employ and discharge the help, and at the time of the accident was in sole charge of the plant and had the entire management and control of it.

The trial court refused a special charge asked by appellant as follows: “You are instructed to return a verdict for the defendant herein for the reason that it appears from the uncontroverted evidence that the death of Gardner Williams was not caused by the wrongful act, negligence, unskillfulness, or fault of the defendant Coca-Cola Company.” The contention is in effect: That as Gordon Van Winkle was only a foreman of appellant, a private corporation, it was not liable for his negligent or wrongful acts, which caused the death of Gardner Williams. That it could be made liable only through the negligent act, causing death, of its vice principal. We think the evidence shows beyond controversy that Yan Winkle was the vice principal of appellant at the time of the accident. The general manager was absent from the city. Van Winkle had entire control and management of the plant, with power to employ and discharge the servants, and was responsible for the operation of the plant. He was not only present directing the work, but he lit the match and stuck it to-the bunghole that ignited the inflammable material that caused it to explode, resulting in the death of Williams, and for which the appellant is liable.

On a former appeal of this case, where the facts and issues were practically the same as here, and where the trial court instructed a verdict for the Coca-Cola Company, reported in 150 S. W. 759, the cause was reversed; the court holding that the case should have been submitted to the jury, using this language: “In view of another trial, we deem it improper to discuss the evidence further than to say that in our opinion the evidence adduced by plaintiff was sufficient to go to the jury, and the issues-should have been submitted under appropriate instructions.” The opinion on that appeal was written by Mr. Justice Moursundv in which he discusses the principles governing the liability of private corporations for-death caused by the negligence of their servants under our statutes (article 4694 [1911] R. S.), and cites decisions of our Supreme Court in support of his views, with which we concur, and deem it unnecessary to enter into a further discussion of the principles involved,, as our holding with that case settles this one-against appellant.

There are various assignments presented to the charge of the court, to the refusal of' special charges asked, to the refusal to grant a continuance, to the verdict as excessive, etc., but we think none is well taken.

The issues were correctly submitted, and the evidence supports the verdict and judgment.

The judgment is affirmed.


author: DUNKLIN, J.

text:
    ALLISON v. ARLINGTON HEIGHTS REALTY CO.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 24, 1914.)
    1. Appeal and Error (§ 1170) — Harmless-Error — Instructions.
    Any error in an instruction in an action for possession of land that, if, within 10 years-before suit, defendant “stated to any person whomsoever” that he did not intend to claim, title to the land, the jury should find that he had not acquired title by adverse possession, in that it permitted the jury to find that defendant told some one not mentioned in the evidence that he did not claim the land, was not reversible-under Courts of Civil Appeals Rules, Rule 62a (149 S. W. x), prohibiting reversals, unless the appellate court believes that the error probably caused an improper judgment.
    [Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 4032, 4066, 4075, 4098,. 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    2. Trial (§ 244) — Instructions—Weight op-Evidence.
    Where, in an action for realty claimed by defendant by adverse possession, the evidence of plaintiff’s manager that defendants stated, that he did not intend to claim the land was the-only evidence contradicting defendant’s testimony that he did claim it adversely, and the general charge did not present that issue affirmatively, an instruction affirmatively submitting the issue for plaintiff by instructing that, if defendant had not formed an intention to appropriate the land, etc., was not objectionable as giving undue prominence to defendant’s intention when he took possession.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.]
    S. Trial (§ 194) — Instructions—Weight of Evidence.
    An instruction, in an action for possession of land claimed by defendant by adverse possession, in submitting the question of defendant’s intention, that the intention or lack of intention of a party may_ be determined by the facts and circumstances in evidence was not on the weight of the evidence.
    [Ed. Note. — Eor other cases, see Trial, Gent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Trial (§ 269) — I-Iaemless Error — Instructions.
    A notation on an instruction following the signature of plaintiff’s attorneys “requested after the reading of the main charge and after the court’s refusal of plaintiff’s request to give a peremptory instruction in its favor, and given,” was not calculated to mislead the jury to defendant’s prejudice.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 676; Dec. Dig. § 269.]
    5. New Trial (§ 99) — Newly Discovered Evidence.
    Where, in an action for possession of land claimed by defendant by adverse possession, plaintiff’s manager testified that, when defendant told him that he would not claim the land, H. was present and heard the conversation, alleged newly discovered evidence that, if any such conversation occurred between the manager and defendant, H. did not hear it was not ground for a new trial, being negative in character, and only impeaching the manager’s evidence on the question whether H. was present when the- conversation occurred.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 201, 207; Dec. Dig. § 99.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by the Arlington Heights Realty Company against M. C. Allison. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    McCart, Bowlin & MeCart, of Pt. Worth, for appellant. Crenshaw & Boykin, of Pt. Worth, for appellee.

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

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

   DUNKLIN, J.

The Arlington Heights Realty Company instituted this suit against M. C. Allison to recover certain real estate, and, from a judgment in favor of the plaintiff, Allison has appealed.

The defendant claimed title under the statute of limitations of ten years, and this was the only controverted issue in the case, which was submitted to the jury in the general charge in the form of a special issue reading as follows: “Has the defendant, M. C. Allison, had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same, for a period of at least ten years prior to the filing of plaintiff’s suit as against all persons whomsoever?” The issue so submitted was followed by the statutory definitions of “peaceable possession” and “adverse possession.” The question so propounded by the court was answered by the jury in their verdict “No.”

The court also gave the following special charge No. 3 requested by the plaintiff: “If you find and believe from the evidence that at any time prior to the filing of this suit, and within ten years next preceding the bringing of this suit, the defendant, -M. C. Allison, stated to any person whomsoever that he did not claim, or intend to claim, title to the lots in controversy, then you will answer the question propounded to you by the court ‘No.’ ”

The suit was instituted December 9, 1910. Geo. E. Montgomery, witness for plaintiff and general manager of plaintiff corporation, testified as follows: “I had a conversation during the year 1906 with Mr. M. C. Allison, defendant, with regard to the fence around the lots above described. The conversation took place in front of Mr. Allison’s house, which adjoins the lots in question, some time in 1906, the exact date of which I cannot recall. The substance of my conversation with Mr. Allison was as follows: I asked Mr. Allison to remove the fence from the'properties. He assured me that he would set up no claim whatsoever to these lots, but, if we were not going to use them or sell them immediately, that he would like to use them as a garden. Upon this assurance, I permitted him to let the fence remain.” No other witness testified to any such statements by Allison.

Error has been assigned to the instruction last quoted, upon the ground that the jury were thereby left “free to speculate on the possibility that Allison might have told somebody who is not mentioned in evidence during said ten years that he didn’t claim to own said land in question.” It is not reasonable to suppose that the jury indulged in such a speculation, in the entire absence of any basis therefor. At all events, if that objection should be otherwise tenable, it would be no ground for a reversal of the judgment under rule 62a (149 S. W. x).

The court also gave special charge No. 4, requested by the plaintiff, which reads: “If you believe from the evidence that, at the time M. C. Allison constructed the fence around the land in controversy, he had not formed an intention to appropriate said land and hold it by limitation, but that his intention to so appropriate and hold said land (if you find that he ever formed such intention) originated after he had built said fence and within a period less than ten years before the filing of plaintiff's suit, then you will answer the question propounded to you by the word ‘No.’ In this connection you are instructed that the intention, or lack of intention, of a party may be determined by yon by tbe facts and circumstances in evidence before you.” Error bas been assigned to tbis instruction. Tbe first objection urged thereto is that Allison’s testimony as to bis intention, wbicb was favorable to bis defense, was tbe only evidence tbat could be looked to for tbe purpose of determining bis intention. Clearly tbis contention is unsound, in view of tbe testimony of Montgomery, already quoted.

Another objection is tbat tbe instruction, taken in connection with tbe other special instruction already noted, “gave undue prominence to tbe question of Allison’s intention when be took possession of tbe lands, notwithstanding Allison’s undisputed testimony tbat be took possession of tbe same with tbe. intention of bolding possession of tbe same adversely against tbe world.” As it was absolutely necessary, in order to sustain tbe defense of limitation, to show tbat tbe possession was adverse, and as tbe facts detailed by Montgomery constituted practically tbe only evidence relied on by tbe plaintiff to offset Allison’s testimony on tbat issue, there was no error in submitting, in an affirmative form, tbe theory supported by that evidence. Tbe issue submitted in tbe general charge did not present tbis theory of tbe defense in an affirmative manner. N. Tex. Trac. Co. v. Moberly, 109 S. W. 483; M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; So. Const. Co. v. Hinkle, 89 S. W. 309.

Nor do we think tbat tbat part of tbe instruction, in effect, tbat tbe facts and circumstances in evidence could be considered by tbe jury in determining tbe question of Allison’s intention in occupying tbe land, was on tbe weight of tbe evidence.

Added to tbe instruction last quoted was a notation following tbe signature of plaintiff’s attorneys thereto, reading: “Requested after tbe reading of the main charge and after tbe court’s refusal of plaintiff’s request to give a peremptory instruction in its favor, and given.” Appellant insists tbat tbis notation was calculated to mislead and confuse tbe jury to appellant’s prejudice. There is no merit in tbis criticism.

By another assignment complaint is made of tbe refusal of appellant’s motion for a new trial. Tbe witness Montgomery, testified that, at tbe time of the conversation between him and Allison set out above, Rutland Hyams was present and beard tbe conversation. In appellant’s motion for new trial, it was alleged tbat Rutland Hyams could be procured as a witness on another trial, and would testify tbat be was never present when any such conversation occurred between Montgomery and Allison; that, as a matter of fact, be was not acquainted with defendant, Allison, until some time after tbe date upon wbicb Montgomery testified tbe conversation occurred. It was further alleged tbat Hyams resided in tbe state of Louisiana ; tbat, after tbe depositions of Montgomery detailing tbe conversation above noted were filed in court, appellant’s attorneys made diligent effort to learn tbe whereabouts of Hyams, but failed to locate him until after tbe trial; tbat tbe efforts so made included an inquiry of J. S. Hanford, one of tbe officials of plaintiff, also of one of tbe attorneys for plaintiff, each of whom informed the attorney making tbe inquiry tbat be did not know where Hyams could be found; tbat, as a matter of fact, tbe information so given was false, in tbat plaintiff, through some of its representatives, bad corresponded with Hyams, and bad attempted to procure bis testimony to corroborate tbat of Montgomery, but tbat Hyams bad refused to give such testimony; tbat appellant bad learned by accident only, after tbe trial, of Hyams’ whereabouts. According to tbe allegations in tbe motion Montgomery’s depositions bad been on file more than six months prior to tbe date of tbe trial. According to other allegations in tbe motion, it appears tbat appellant’s attorneys relied in part upon their expectation that plaintiff would produce Hy-ams as a witness upon tbe trial. It does not appear tbat appellant made any inquiry of tbe witness Montgomery himself to ascertain tbe whereabouts of Hyams. It is not entirely clear tbat appellant used due diligence to procure tbe testimony of tbis witness before tbe trial, but, aside from tbat criticism, tbe proposed testimony was of a negative character only; if Hyams bad been present, be would not have sworn tbat no such conversation occurred between Montgomery and Allison, which constituted tbe material portion of Montgomery’s testimony, but tbe extent of Hyams’ testimony would have been that, if any such conversation bad occurred, be did not bear it, thus, in a measure, corroborating tbe testimony of Allison, and impeaching tbe testimony of Montgomery, upon tbe one point only whether or not be (Hyams) was present when the alleged conversation occurred, and hence there was no error in overruling tbe motion for a new trial. E. P. & S. W. Ry. Co. v. Murtle, 49 Tex. Civ. App. 273, 108 S. W. 999; Tex. Cent. R. R. Co. v. Dumas, 149 S. W. 543.

The judgment is affirmed.