author: McMEANS, J.

text:
    HODGES et al. v. SWASTIKA OIL CO.
    (No. 7136.)
    (Court of Civil Appeals of Texas. Galveston.
    March 2, 1916.
    Rehearing Denied March 30, 1916.
    Second Motion for Rehearing Denied April 20, 1916.)
    1. Master and Servant <§=>276(3) — Injuries to Servant — Sufficiency ox Evidence-Place to Work.
    In an action for the death of an employe who fell from an oil well derrick, evidence held not sufficient to show actionable negligence in the construction of the finger board of the derrick, or that the construction was the proximate cause of the fall.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. <§=> 276(3).]

      2. Master and Servant <§=>286(18) — Injuries to Servant— Sufficiency of Evidence —Negligence—Safety Appliance.
    In an action for the death of an employé who fell from an oil well derrick, evidence held, sufficient to take to the jury the question of the employer’s negligence in failing to furnish a safety belt to the employé.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1025; Dec. Dig. <§=> 286(18).]
    3. Master and Servant <g=»228(l) — Negligence <§=>116 — Injuries to Servant — Defenses — Contributory Negligence — Statute.
    An employer can plead contributory negligence as a defense to an action for the death of his employé whether the action is governed 'by the Employers’ Liability Act (Acts 33d Leg. c. 179 [Vernon’s Say les’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz]), allowing the defense in diminution of damages, or not, in which case it is an absolute defense.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 670; Dee. Dig. <§=> 228(1); Negligence, Cent. Dig. § 194; Dec. Dig. <§=>116.]
    4. Master and Servant <§=>270(10) — Injuries to Servant — Admissibility of Evidence-Safe Place to Work.
    In an action for the death of a derrick man, a question asked witness who had testified as to the weather conditions on that day whether that weather would make the place to work unsafe was objectionable as calling for evidence as to the absolute safety of the place, not its reasonable safety, which was the measure of the employer’s duty.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 920; Dec. Dig. <§=> 270(10).]
    5. Evidence <§=>472(4) — Opinion Evidence-Question in Issue.
    The question was also objectionable as calling for the witness’ conclusion as to a fact which it was the province of the jury to determine.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 21S9; Dec. Dig. <§=>472(4).]
    6. Appeal and Error <§=>742(1) — Assignment of Error — Statement.
    An assignment of error not followed by a statement as required by the rules cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§==>742(1).]
    7. Master and Servant <§=>351 — Workmen’s Compensation Act — Construction — Assuming Risk.
    Employers’ Liability Act, § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h), provides that in an action to recover damages for an employe’s injuries or death it shall not be a defense that the employé had assumed the risk of the injury incident to his employment. Section 2 of the act (article 5246hh) provides that it shall not apply to actions to recover damages for injuries or death of employés of any employer having in his employ not more than five em-ployés. The fourth section of the act provides that employés whose employers are not at the time of the injury subscribers to the insurance association cannot participate in the benefits of the association, but can recover for damages by reason of injury received in the course of employment, and that the provisions of section 1 of the act should be applied in all such actions. field, that the exemptions in section 2 should control the general words in section 4 (article 5246ii), so that employes of all nonsubscribing employers might recover against their employers, but that the provisions of section 1 as to the defenses including assumption of risk should be applied in such cases only where the employers had more than five employés.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <§=>351.]
    8. Statutes <§=>206 — Construction as a Whole.
    All the parts of a statute are to be considered together in construing it, and one part may control another, though, if possible, they are to be reconciled.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 283; Dec. Dig. <§=>206.]
    9. Statutes <§=>194, — Construction—Particular and 'General Provisions.
    Where there are words in a statute expressing a general intention and others expressing a particular intention incompatible with it, the particular must be taken as an exception to the general.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 272; Dec. Dig. <§=>194.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action, by I. A. Hodges and others against the Swastika Oil Company.
    Judgment for the defendant on directed verdict, and plaintiffs appeal. Reversed and remanded.
    Gaines & Corbett, of Bay City, for appellants. Hunt, Myer & Townes and Rodman S. Cosby, all of Houston, and J. W. Conger, of Bay City, for appellee.
   McMEANS, J.

Will Hodges, while in the employment of the Swastika Oil Company, a private corporation, fell from the triple board of an oil well derrick upon which he was at work, and thereby received injuries which resulted in his death, and I. A. Hodges, S. E. Hodges, and Dewey Hodges, the father, mother, and minor brother, respectively, of the deceased, brought this suit to recover of the oil company damages accruing to them by reason of his death. Recovery is predicated upon the alleged negligence of the oil company, as the proximate cause of the death of said Will Hodges, in the following particulars: (1) Faulty or defective construction of the finger-board upon which the deceased was required to stand while at work, in that the same was slanting, being about 6 inches lower at the end extending into the derrick than the end attached to the derrick girder, which caused the deceased to slip and fall. (2) In requiring the deceased to work in the .derrick when the weather was unusually bad and rainy. (3) In failing to furnish the deceased with a safety belt, which they alleged would have prevented deceased from falling in case of his foot slipping while working upon the triple board.

The defendant answered by general denial and special pleas of assumed risk and contributory negligence on the part of the deceased. The case was tried before a jury, who, in obedience to a peremptory charge of the court, returned a verdict for defendant, and a judgment was thereupon accordingly entered in defendant’s favor, and the plaintiffs liave appealed.

By appropriate assignments of error appellants assail the action of the court in peremptorily instructing a verdict for the defendant. The testimony in the record justifies the following fact findings:

The defendant was a corporation engaged in the production of oil in what is known as the Markham oil field, and, at the time of the death of Will Hodges, was engaged in drilling an oil well in said field. For this purpose it had constructed a derrick 84 feet high, having a 20-foot base, and being 4 by 6 feet at the top. The deceased was known as the “derrick man” and his work, as such, was performed upon the triple board, some 50-odd feet above the ground. The triple board consisted of two pieces of 2 by 12 lumber, extending across the derrick and resting on girders on both sides. These were for the derrick man to work 'upon when the drill pipe was being lowered into or withdrawn from the well. The drill pipe consisted of joints of pipe each about 20 feet in length, screwed together, and upon being withdrawn were uncoupled so that three joints of the 20-foot pipe would remain in one section. There was also what is known as a “finger board” made of 2 by 6 timber with a notch in the end to lay pipe in preparatory to attaching them to the elevator to lower the pipe in the well. The finger board is fastened to a girder at the same level as the triple board, and one end extends to the middle of the derrick, and the witness Marks says that:

“In a properly constructed derrick the finger board is about 3 feet, 8 inches from the derrick wall — about a step from the derrick wall to the finger board.”

He further says that:

“When the derrick man is engaged at work in the derrick, coupling his pipe with the elevator, he works with one foot on the finger board and one foot upon the derrick.”

Ordinarily the finger board should be on a level with the triple board or the end of the inside of the derrick should incline slightly upward, but it appears that the finger board on the derrick in question inclined downward, so that the end was some 3 or 4 inches lower than the girder to which it was fastened.

The witness Tate testified that:

“In regard to placing the finger board for safety, as to whether it is placed level or lower or raised at the notched end and where a man stands, I will state that the end extending out into the derrick should be a little bit higher than the end that is nailed to the girts of the derrick. * * * We have the projection inside of the derrick upward a little for several reasons, it is an advantage to the derrick man because in case of wet weather it will be less danger of a man’s foot slipping off the end, although his foot could slip if it is turned up a little. The effect of his foot slipping off the end, if there is nothing there to catch in the center of the derrick, would be that he would fall.”

It was shown that other corporations engaged in drilling oil wells’in the Markham field used safety belts for the protection off their derrick men while engag-ed in the performance of their duties. The witness Marks described safety bets and their uses as follows:

“A safety belt is made out of 3-inch heavy, harness leather, with two straps fastened across each shoulder, across the back and front, making a cage that you can’t fall out of, whether-you fall head forward or feet, you can’t get out of it. A heavy ring is attached to the back, and we use a rope, ordinarily a three-fourths inch rope tied onto the girt or brace of the derrick. Equipped that way, if the derrick man. should slip and fall, the effect would be that he would be caught on the rope; in other words, he would be caught, and would not fall.”

The witness Tate testified:

“The purpose of using the safety belt is in case-a man falls or slips it will catch him and hold him; it prevents him from falling to the floor and sustaining injury. I know that safety belts could have been obtained and procured by the Swastika Oil Company on or before the 2d day of March, 1915” (the date Will Hodges was-killed).

George Hathaway testified:

“I have used safety 'belt in the derrick work.. The safety belt keeps a man from falling.”

W. A. Hodges, brother of the deceased, testified:

“I did request the defendant Swastika Oil Company to procure for Will Hodges a safety belt. I made the request of the foreman, R. L. Hamil, and he told me that his brother, Kirk Hamil, did not approve of life belts, and that he did not think he would buy it because the expense was running so high he would ‘kick’ on it as he had on many other things. The Swastika Oil Company has procured safety belts, but they never did procure one for Will.”

The only person shown to have been present at the time Will Hodges fell was Ellis Hamil, and we give his.testimony in full:

“I was present in the Markham oil field on. the 2d day of March, 1915, working in the derrick where the deceased, Will Hodges, was at work. At that time I was working right at the ropes, right in the center of the derrick, on the platform, I cannot tell the jury how Will-Ilodges lost his life, any more than that he fell. I was at the ropes at the time he fell — I had just closed the sides. At the time Will Hodges-fell he was working in the derrick on the triple board, and fell from that point. I did not see him fall, but I heard him halloo, and looked up, and I left the floor because I could not see what it was that was falling. I saw something falling and I got out of the way, and later I found that this object that was falling was Will-Hodges. I did not see him fall; that is, when he started to fall I did not see him, and I don’t know how it happened. All.I know about it is that I heard him halloo and saw something falling, and I did not know until he hit the floor what it was that was falling. I don’t know the cause or reason that he fell. There was nothing wrong with the derrick that I know of, but I don’t know much about them. As far as I know the derrick was in good shape. I was not up on the triple board. I have been up there, but I don’t work up there, at all.”

Plaintiffs did not allege that the defendant was not a subscribing employer to the Texas-Employers’ Insurance Association organized in virtue of chapter 179, Acts of 1913 (Ver--non’s Sayles’ Ann. Civ. St. 1914, Arts, 5246bk-5246zzzz), commonly known as the “Employers’ Liability Act,” or that the defendant had in its employment at the time of the death of Will Hodges more than five employés. Proof was admitted, however, that the defendant then had in its service six employés.

We are of the opinion that no actionable negligence was shown by the testimony in respect to the allegations of defectiveness in the construction of the finger board, or, at least, if negligence was proved it was not shown that the defectiveness was the proximate cause of the injury. It was shown that the deceased was working upon and fell from the triple board, and no attempt was made to show that the triple board was defectively constructed. It was further shown that the derrick man, the deceased in this instance, would not have occasion to use the finger board for a resting place for his feet unless the work then being performed was the withdrawal from or lowering into the well the drill pipe, and the evidence does not indicate that such work was then being done, although it would have been a simple matter to prove it had such been the case. Nor does the evidence sustain the allegation that the defendant required the deceased to work in the derrick on the rainy day on which he was killed, or that to work in such a place on such a day was so dangerous that the defendant in the exercise of the degree of care that ,a reasonably prudent person would exercise under like circumstances was negligent in requiring or allowing its employé to work there. The evidence as a whole merely shows that the deceased while at work upon the triple board fell therefrom, without any explanation, of the cause of his fall. In the absence of any evidence showing that the board was a resting place for his foot, negligence, as the proximate cause of his fall, cannot be predicated upon the fact that the finger board inclined downward instead of upward, and it was shown by one witness that the foot could slip from it even if it were inclined upward.

But we think that the evidence was sufficient to raise the issue of actionable negligence upon the part of. the defendant in failing to furnish deceased with a safety belt, and that that issue should have been submitted to the jury.

The deceased, in performing his duties as derrick man, worked upon boards placed upon the girder of the derrick at a height of more than 50 feet from the ground, where, in the absence of anything to hold to a slip of the foot or misstep meant almost certain death. ■Safety belts, such as described by the witness Marks, whose testimony has been quoted, were in frequent if not in common use in the •oil fields, to protect employés working at just such places as the deceased was when he fell; and by their use such an accident as befell the deceased could be avoided. It was testified by the witness Tate that before the time the deceased fell the defendant could have procured such belts, and the witness W. A. Hodges, the brother of the deceased, testified that the defendant had procured such belts, but did not procure one for the deceased, although he had requested the defendant’s foreman to do so, who refused on the ground of expense. The question of assumed risk is not before use as that defense was stricken out by the court in sustaining a special exception to that part of the defendant’s answer which asserted it.

We think that in view of the foregoing facts it was for the jury to say whether the defendant was negligent in failing to furnish the plaintiff with a safety belt, and that the court erred in taking the case away from them by instructing a verdict for the defendant, and that for this error the judgment must be reversed.

In view of another trial we shall pass upon other assignments of error presented by the appellants.

It was not error for the court to overrule plaintiff’s special exception to that part of the defendant’s answer which pleaded contributory negligence of the deceased. If the defendant’s rights of defense in this regard are not controlled by section 1 of chapter 179 of the acts of the Thirty-Third Legislature (General Laws 1913, page 429), contributory negligence is an absolute defense; if they are, the defense is allowed, not as avoiding liability, but in diminution of the damages in the proportion to the amount of negligence attributable to the employé.

On the trial the witness Tate, while, testifying for plaintiffs, after testifying about the triple board and finger board, and the condition of the weather on the day the deceased fell, further testified that it was a very disagreeable day to work, especially in the derrick, and that it was very hard for the derrick man to get the pipe from behind him. He was then asked: “Would or would not that make it an unsafe place to work?” Objection to this question was made by the defendant and sustained by the court. Had the witness been permitted he would have answered: “It would.” A similar question was asked the witness George Hathaway, and an objection thereto sustained by the court.

We think there was no error committed by the court in sustaining the objections. The defendant owed to the deceased only the duty to use ordinary care to furnish him a reasonably safe place to work. If it performed this duty it discharged its obligations to him in this regard; therefore the question, if proper to be asked the witness at all, should have been confined to an inquiry as to whether the place so furnished was one that was reasonably, and not absolutely, safe.

But we further think that the question was improper, for the reason that it called for the conclusion of the witness in regard to a matter that was within the sole province of the jury to determine. The witness should have been confined to stating the conditions as they existed, leaving it for the jury to determine whether, under all the facts, the place was a reasonably safe one for the deceased to work. Consumers’ Lignite Co. v. Hubner, 154 S. W. 254; Railway v. May, 115 S. W. 901; Railway v. English, 59 S. W. 628. The fourth, fifth, and sixth assignments raising the points are overruled.

The ninth assignment is not followed by a statement as required by the rules, and cannot therefore be considered. Other assignments of error presented for a reversal have been carefully examined by us, and we are of the opinion that they do not point out reversible error.

We come now to a consideration of cross-assignments presented by appellee.

The first complains of the action of the court in sustaining plaintiffs’ exception to the defendant’s plea of assumed risk. By its proposition under this assignment it is urged that the defense of assumed risk is available except in certain exceptional cases provided for in the Employers’ Liability Act; and that where the pleadings of the plaintiff failed to show the plaintiff came within the provisions of that act, assumed risk was a defense. The first section ’of that act (Acts 33d Legislature, page 429, brought forward in Vernon’s Sayles’ Civil Statutes as article 5246h) provides:

“In an action to recover damages for personal injuries sustained by an employé in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense: * * * 3. That the employé had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused 'by the willful intention of the employé to bring about the injury.”

Section 2 of the act provides:

“The provisions of this act shall not apply to actions to recover damages for personal injuries or for death resulting from personal injuries to * * * employés of any person, firm or corporation having in his or their employ not more than five employés.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246hh.

The fourth section of the act provides:

“Employés whose employers are not at the time of injury subscribers to said association and the representatives and beneficiaries of deceased employés who at the time of injury were working for non-subscribing employers cannot participate in the benefits of said insurance association, but they shall be entitled to bring suits, and may recover judgment against such employers, or any of them, for all damages sustained by reason of any personal injury received in the course of employment, or by reason of death resulting from such injury; and the provisions of section 1 of this act shall be applied in all such actions.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246Ü.

From the sections above quoted it will be seen that the defense of assumed risk is denied generally by section 1, while section 2 exempts from the operation of section 1 nonsubscribing corporations, firms, or persons not having in their employment more than five employés, while section 4, in general terms, makes the provisions of section 1 applicable in all suits for the recovery of damages for personal injuries of employés or injuries resulting in death, except those employes who at the time of the injury or death are working for subscribing employers. Thus the two sections are apparently in conflict. But it is a cardinal rule in the construction of statutes that:

“All the parts * * * are to be looked at together, and one part may control another. If possible they are to be reconciled. Thus, where there are words expressive of a general intention, and then of a particular intention incompatible with it, the particular must be taken as an exception to the general, and so all parts of the act will stand.” Howard Oil Co. v. Davis, 76 Tex. 633, 13 S. W. 665.

In view of the foregoing rule of construction we think that the particular intent of the Legislature exempting from the operation of section 1 of the act employers who do not have in their employment more than five employés, controls the general provisions of that part of section 4 which declares that the provisions of section 1 shall be applied in all actions for damages against employers who are nonsubseribers to the association. In this view, section 4, being construed with section 2, should be interpreted to mean that the employés of nonsubscribing employers may recover judgment against their employers for all damages sustained by reason, of any personal injuries received in the course of employment, or by reason of death resulting from such injury, and the provisions of section 1 of the act shall be applied in all such actions, provided that such employers had in. their employment more than five em-ployés. This construction harmonizes the apparent conflict between the two sections and permits both to stand.

It follows, we think, that the defense of assumed risk is not denied to an employer who does not have in his service more than five employés, and is not available to employers who have in their employment more than five employés. This being true, the plaintiffs, if they desired to bring their case in the class of cases in which such defense is denied, should have alleged the necessary facts, and as they did not do so, we think the court should not have sustained the exception to the defendant’s plea of assumed risk.

The other cross-assignment is directed to a matter which will doubtless be cured by an amendment of the plaintiffs’ pleadings, and need not therefore be discussed, further than to say that in view of the plaintiffs’ pleadings the assignment should be sustained.

For the error indicated the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <g^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: LANE, J.

license: Public Domain

text:
    FIRE ASS’N OF PHILADELPHIA v. PERRY et al.
    (No. 7092.)

    (Court of Civil Appeals of Texas. Galveston.
    March 16, 1916.)
    1. Insurance <®=>665(3) — Change in Interest in Property — -Conditional Sale — Sufficiency of Evidence.
    Evidence in an action on a policy of fire insurance, covering certain billiard and pool tables situated in a certain building, providing that any change, other than by the death of the insured, in the interest, title, or possession of the subject of insurance, except change of occupants without increase of hazard by the voluntary act of the insured, should avoid the policy, held to show that, after its issuance, the insured had made a conditional sale of the property on the security of a chattel mortgage and had received payments of part of the buyer’s notes before the loss.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1711-1716; Dec. Dig. ®=>G6S(3).]
    2. Insurance <®=o328(5) — Forfeiture—Place of Condition — Interest in Property.
    Under such policy, a conditional sale before the loss was a change other than by the death of the insured in the interest, title, and possession of the insured property avoiding the policy and defeating the insuTed’s recovery thereon.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 799; Dec. Dig. <§⅛328(5).]
    3. Contracts <⅜=>10(4) — Mutuality — Conditional Sale — Enforcement.
    A contract by the owner of billiard and pool tables, etc., situated in a certain building placing another in possession under the agreement that after a certain amount was paid by him in monthly payments, and that if meantime he refrained from drinking and lived with his wife, the property was to be his, and under which the buyer gave a series of notes secured by a chattel mortgage and paid part of such notes and was fully performing his part of the contract, was not unenforceable for want of mutuality.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 37; Dec. Dig. ©=>10(4).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by Rene Perry and another against the Fire Association of Philadelphia. Judgment for plaintiffs, and defendant appeals.
    Reversed and judgment rendered for defendant.
    Gill, Jones & Tyler, of Houston, for appellant. Robert & Sears, and C. M. Fairchild, all of Houston, for appellees.

      Application for writ of error dismissed in Supreme Court.

   LANE, J.

This suit was instituted by Misses Rene Perry and Nora Perry against the Fire Association of ¡Philadelphia, an insurance corporation, hereinafter called Insurance Company, to recover upon a certain policy of fire insurance for $2,000, issued by said Insurance Company to Rene and Nora Perry on the 23d day of January, 1913, which covered certain billiard and pool tables, balls, cues, etc., claimed by plaintiffs, situated in a certain building in Houston, Tex.

The defendant Insurance Company answered, admitting the execution and delivery of said policy, but it says that said policy contains, among other things, the following clause:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the hazard be increased by any means within the control or knowledge of the insured; or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be personal property and be or become incumbered by a chattel mortgage; or if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise.”

It further says that, if plaintiffs ever acquired the unconditional ownership of the property described in said policy, they sold the same to their brother, L. E. Perry, on or about the 1st day of February, 1913, and received in payment therefor from the said L. E. Perry his 20 promissory notes for the sum of $150 each, numbered from 1 to 20 inclusive, all dated at Houston, Tex., February 1, 1913, and payable respectively on March 1, 1913, and monthly thereafter until all are paid; that said notes were delivered by said L. E. Perry to plaintiffs, and that they accepted same in payment for an interest in said property; that during the period from the date of said notes, to wit, February 1, 1913, to the date of the fire which destroyed the insured property, five of said notes were paid to plaintiffs, and that by each of said payments a change in the title or interest of plaintiffs in said property described in said policy occurred, and that, at and prior to the time of the fire which destroyed said insured property, an interest in the same had passed from plaintiffs to L. E. Perry, and that at the time of the fire plaintiffs were not the unconditional owners of said property; that plaintiffs, under the conditional sale hereinbefore mentioned, placed L. E. Perry in possession of said property,, and thereafter L. E. Perry conveyed an interest therein to one B. H. Tinsley, who, together with said L. E. Perry, in conducting a billiard and pool hall business, took possession of all said insured property on the 1st day of February, 1913, which business they continued up to the time of the fire which destroyed said property, under the following contract:

“Know all men by these presents: That we, L. E. Perry, of the county of Harris and state of Texas, and B. H. Tinsley, also of said county of Harris, state of Texas, do hereby agree and do hereby make these our articles of agreement, and do enter into a partnership on equal shares, and do hereby agree, covenant and stipulate as follows:
“(1) The partnership business is to conduct a billiard and pool hall now situated at No. 1915½ Preston avenue in the city of Houston, and known as the Brunswick Billiard Parlor, and same shall be the style of our firm name and under which we propose to conduct business.
“(2) Whereas, said billiard and pool business is now owned by said Perry by virtue of a bill of sale from Blisses Bene and Honora Steele Perry, who bought same from J. S. Taylor; and whereas, said Misses Perry had made their bill of sale to said Perry, and the said Perry has given to said Blisses Perry a chattel mortgage on said business and all personal property therein to secure the whole of the purchase price, to wit, S3,000, which is payable in 20 installments of. $150 each, payable monthly, with interest thereon from February 1, 1913, the date of said notes, at the rate of 10 per cent, per annum; and whereas, wo each expect to pay off said notes as they fall due from the money taken in from conducting said billiard parlor; and whereas, we each agree to put in our personal time and attention to said business, at such hours as we may agree upon, and to devote our energies to making said business pay: Now, therefore, in consideration of the premises and in consideration of $1, the receipt of which is hereby acknowledged, the said L. E. Perry has bargained sold, and conveyed and delivered, and does by these presents hereby bargain, sell, and convey and deliver, unto the said B. H. Tinsley, an undivided one-half interest in and to said business as described in said bill of sale made to said L. E. Perry, the same consisting of the following described personal property, to wit: All the personal property now contained in the billiard hall known as the Brunswick Billiard Parlor, at No. 1915½ Preston avenue, in the city of Houston, in said Harris county, Tex., including the right to use said name, and also the good will of said business¡ the property therein contained being all that is now therein, and being the same so purchased by me from said Misses Perry, consisting in part of two billiard tables, ten pool tables, balls, bridges, cues and racks, chairs, a safe, a cash register, and a cigar case, and stove, to have and to hold unto the said B. H. Tinsley, his heirs and assigns, forever. This sale is, however, subject to said mortgage given by me to said Misses Perry, it being our understanding that we are going into together to buy this place, and to that end try to earn enough together in said business to pay off said mortgage and notes, so that when that is done we shall be equal partners and equally own said business and property.
“(3) We each agree that out of the money taken in from said business each month, that we pay off one of said notes with interest due thereon, and that we will try to be economical in conducting said business and in our expenses, so that we may be able to meet each note as it falls due. Neither party can sell their interest except by mutual agreement in writing. Not over $10.00 a week to be drawn.
“(4) The said Perry agrees to execute and deliver to the said Tinsley an unconditional bill of sale to an undivided one-half of said property, when same shall have been paid in full according to the terms of this agreement by the said Perry and the said Tinsley, and after same is released from said mortgage.
“(5) This contract of partnership is executed in duplicate. This the 1st day of February, A. D. 1913. [Signed] L. E. Perry.
“B. H. Tinsley.”

That by reason of the facts hereinbefore alleged and otherwise, the interest of the insured in the property described in said policy was not the unconditional arid sole ownership at the time of the issuance of said policy, nor at any time thereafter, nor at the time of the fire, if any, and that a change other than by the death of the insured, or either of them, took place in the interest, title, and possession of the subject of insurance, in violation of the conditions, stipulations, provisions, and warranties contained in said policy, and hereinbefore set forth, whereby said policy became and is null and void according to its terms. Defendant further says that by reason of the facts above alleged and otherwise, and independently thereof, the provisions, stipulations, conditions, and warranties in said policy, as here-inbefore set forth, were breached by the plaintiffs herein prior to the 28th of July, 1913, either because the interest of the insured was other than the unconditional and sole ownership of the subject of insurance at the time of the issuance of said policy, and at all times thereafter, or else because after the issuance of the policies sued on a change took place in the interest, title, and possession of the subject of insurance, and in the interest, title, and possession of the subject of insurance (other than a change of occupants without increase of hazard) by the voluntary act of the insured prior to the date of the fire, if any, whereby said policy became and is null and void and unenforceable. That the policy sued on is void and unenforceable, according to its terms, because the interest of the insured in the property was not truly stated therein; because the interest of the insured therein was not the unconditional and sole ownership; and because by the voluntary act of the assured after the issuance of the policy and prior to the fire, if any, a change other than by the death of the insured took place in the interest, title, and possession of the subject of insurance other than a change of occupants without increase of hazard, all in violation of the conditions, provisions, stipulations, and warranties in said policy hereinbefore set forth. That each and all of said violations and breaches aforesaid were material both to the risk and the rate, and the compliance with each and all of the above-mentioned conditions, provisions, and stipulations were conditions precedent to any recovery on said policy, and were promissory warranties on the part of the insured, the violation of which avoided the policy.

Appellees’ contention is that they were at all times from the date of the policy of in< surance to the date of the fire the sole and unconditional owners of the insured property; that they had only placed L. E. Perry in charge of the pool hall business as their manager, with the understanding, however, that if he, L. E. Perry, would quit drinking and live with his wife — in other words, live with his wife and live a moral life — and pay them back the $3,000 paid by tiiem for the property, they would give the property to said L. E. Perry, but that the title to said property remained in them absolutely and unconditionally until said L. E. Perry had complied with the conditions above stated.

Appellant’s conterition is that the plaintiff purchased said pool hall business for their brother, L. E. Perry, and agreed and con-traded with him that if lie would take possession of said business and pay them $150 per month, as evidenced by certain notes executed and delivered by said L. E. Perry to, plaintiffs, until $3,000 and interest thereon shall have been paid, they (plaintiffs) would convey said property to said L. E. Perry, and that under said agreement the property was turned over to said L. E. Perry, who thereafter, in undertaking to carry out his part of said agreement or contract, paid to plaintiffs five payments of $150 each, and that plaintiffs accepted such payments as a part compliance with said agreement on the part of L. E. Perry and canceled and returned one of said notes upon each payment; that by reason of the transactions and agreements above mentioned an interest in said insured property in fact passed from plaintiffs to said Ij. E. Perry, and therefore plaintiffs were not the unconditional and sole owners of the insured property at the time of the fire which destroyed same, and under the terms of the policy sued upon they are not entitled to a recovery in this cause.

The case was tried by a jury upon special issues submitted to them by the court, and they found that plaintiffs were the unconditional owners of the property insured and destroyed by fire, and also found all other issues submitted to them in favor of plaintiffs. Upon the findings of the jury the court rendered judgment in favor of plaintiffs against said Insurance Company for $2,000, and interest thereon from date of judgment. From this judgment the Insurance Company has appealed.

Appellant’s first assignment is as follows:

“The court erred in refusing to give defendant’s specially requested instruction No. 1, being a request for a peremptory instruction as follows: ‘You are instructed to return a verdict in this case in favor of the defendant, Fire Association of Philadelphia, that plaintiffs take nothing by their suit against it,’ — because the undisputed evidence affirmatively shows that a change, other than by the death of the insured, took place in the title and interest of the insured in the subject of insurance by the voluntary act of the insured after the issuance of the policy, and before the fire, whereby the policy sued on became null and void and unenforceable.”

The disposition of this assignment requires a careful consideration of the evidence most favorable to the plaintiffs, and should such evidence show that after the issuance of the policy sued on, and before the fire which destroyed the property insured, plaintiffs made a conditional sale of said property to L. E. Perry, they cannot recover in this suit. Therefore we deem it advisable to here set out the substance of plaintiffs’ evidence upon the question of such sale, which we here do, as follows:

Miss Rene Perry testified:

“I am one of the plaintiffs. * * * I closed the deal on behalf of my sister and myself for the pool and billiard room business located at Preston and Fannin. * * * We bought for ourselves as far as money in itself was concerned, but I bought the business for my brother, trying to give Mm something to really make-something out of himself. I put in my brother, Edgar Perry, as manager. His duties were to-see that the poolroom was run properly. Pie had charge of it and ran it for us. That place was destroyed by fire about the 28th of July. I had the policy of insurance.”

On being questioned as to a sworn statement made by her before a notary public as to the ownership of the property in question, she said:

“That is my signature to the sworn examination. I don’t recall reading the paper over. I know I signed it in Mr. McCarthy’s office here in the courthouse and swore to it. I didn’t state that I swore to it without taking the time to-read my testimony of three pages, I say I did not recall whether I did. As to whether or not the report of this examination, as written here, is correct, there was one question here that my explanation was not put in at all. * * * In answering the question, ‘What was the consideration your brother, U. E. Perry, was to pay you and your sister for the pool and billiard equipment?’ the sworn statement shows my answer was, ‘$3,000 including 10 per cent, interest.’ With reference to this question and answer I said: ‘When I drew out the $3,000, there was no question of interest when I drew out the $3,000. We put in the business, and, if Edgar had made good at that time, then I would give him the place for himself without any further compensation from him.’ I wanted to cut out the word ‘interest.’ There was no question of interest, because I have never gotten any interest of any kind. With that addition the question and answer are correct.”

In answering the question in the sworn statement, “How was he to pay you the $3,-000?” her answer is shown to have been, “Take up the notes.” In explanation of this answer she said, while testifying at the trial:

“Mr. Bucklew insisted on putting in ‘Take up the notes.’ That reads like I said it. As to whether or not I said, ‘Take up the notes at $150 per month,’ I now answer, in using them as receipts, because they were not notes. * * * I did .add to that answer (which was not inserted), ‘They were not notes, it was $150-a month I was to draw out of the business, that I had as my interest in the business.’ ”

The witness further testified that the notes were to bear 10 per cent, interest, but they were never considered by her as notes. Five of these notes were taken up by L. E. Perry, and that she delivered them to Perry as receipts and not as notes. She testified that she had put in $3,000 and had only drawn out $150-a month for five months, and that she was to-draw out her full $3,000, and that after she-had realized that much, and if Edgar made good, the business was his as a present. On being asked if she had not stated on her sworn examination that the notes referred to were the ones executed by L. E. Perry, she answered that they are, and that she had nothing to add to such answer.

The twenty notes referred to by their terms were to be paid one each month until all of them were paid, and, omitting dates of payment, read as follows:

“150.00. Plouston, Texas, Feby. 1st, 1913.
“ * * * after date, for value received, I promise to pay to the order of Rene Perry and Honora Steele Perry, one hundred and fifty dollars at Houston, Texas, with 10% interest per-annum from date until paid.
“And in the event default is made in the payment of this note at maturity, and it is placed in the hands of an attorney for collection, or suit is brought on the same, then an addition■al .amount of ten per cent, on principal and interest of the note shall be added to the same as ■collection fees.
“Due-, 1913. L. E. Perry.”

The .witness was asked, “Did you furnish any inventory other than the hill of sale referred to from Taylor to you, to your broth■er, L. E. Perry, when you sold him the billiard and pool equipment?” and she answered, “No, sir.” At the trial she testified that the question and answer as above set out is ■correct and that the answer then given is ■still her answer. The witness was then asked if the following question and answer were not asked and given in the examination referred to, to wit:

“Q. Then the agreement between your brother, sister, and yourself was that you were to transfer to him all the billiard and pool equipment that you purchased from J. S. Taylor, and .you were to receive twenty notes, of $150 each, payable monthly, bearing interest at ten per cent, per annum from date on each note, is that right? A. That has the same explanation. I said, ‘Yes, sir ;’ and I explained and gave the same explanation I have used throughout this testimony. I made the answer, ‘Yes, sir,’ to the •question, ‘And upon that verbal agreement _ did you deliver to your brother, L. E. Perry, deliver ■ and turn over to him, all the .billiard and pool equipment' purchased from J. S. Taylor, to be used and handled as he saw fit for his own benefit, when he delivered to you the twenty notes above referred to?’ My whole answer was, ‘Yes, sir; when he took those all up and when he made good.’ The next question .and answer, ‘Had you any mortgage other than those notes against the property?’ to which I answered, ‘No, sir,’ is correct. By the words, ‘if Edgar made good,’ I mean if he had quit drinking entirely and treated his wife properly and lived with her properly as he should have done; in other words, be a real man — that is what I meant by makipg good. I don’t mean the business. I am talking about him himself. The business was not to be his until he did do that; that is, until he did those two things — treated his wife properly,. that is, lived with his wife, go back to his wife, and quit drinking. Those were the two things. This trade changed before the fire, because I came very near taking the business away from him twice. That understanding stood from the time I first put him until the fire. We never changed our agreement. I was perfectly willing to give it to him if he would make good. There was no change up to the time of the fire.”

That the contract between L. E. Perry and Tinsley, as hereinbefore set out, was executed, and that the parties thereto were acting thereunder with reference to said billiard and pool hall business from the date of its execution, to wit, on the 1st day of February, 1913, there is no dispute.

L. E. Perry testified for plaintiffs and substantially supported the testimony of Miss Rene Perry .with reference to the agreement between her and him, as to his right in the property. Both L. E. Perry and B. H. Tins-ley testified that the earnings of the business were about $850 to $900 per month; that the expenses were about $266 per month, .and that Miss Perry was paid $150, or about that sum, each month; that the difference between the expenses and the amount paid Miss Perry and the earnings went into the business, and that during the time they were in charge of the business they had bought a billiard table and other property and added it to the business before the fire.

L. E. Perry also testified:

“I bought the new stuff in my own name. It is mortgaged in my name in the county clerk’s office.”

A careful examination of the evidence in this case will show that the following facts are firmly established by the testimony of the plaintiff and her witnesses, and are admitted to be true: That is, that the insured property was purchased by plaintiffs from J. S. Taylor on the 22d day of January, 1913, for their brother, L. E. Perry; that the policy sued on was dated January 23, 1913; and that on February 1, 1913, plaintiffs placed their brother, L. E. Perry, in possession of the property under the agreement, understanding, and arrangement that if $3,000 were paid to plaintiffs by L. E. Perry in monthly payments of $150 per month, and if meantime L. E. Perry had refrained from drinking and lived with his wife, the property would be his.

The sum and substance of the testimony of the plaintiff Miss Rene Perry is that she bought the business for her brother, L. E. Perry; that she had paid $3,000 for the same; that L. E. Perry had paid her five payments of $150 each under the agreement between them that she was to be repaid the $3,000 she had put into the business; that after said $3,000 was paid and if L. E. Perry quit his bad habits and returned to his wife to live with her, the business was to be his.

We think no other conclusion can be reached than that a conditional sale of the property had been made by the Misses Perry to L. E. Perry on the 1st day of February, 1913, and that he was carrying out his part of the agreement at the time of the fire which destroyed the property; that, had the property not been destroyed, L. E. Perry could have carried out his part of the agreement between himself and his sisters and have become the sole owner of the property; and that his sisters, plaintiffs herein, could not, over his protest or objection, have arbitrarily canceled said agreement.

We therefore conclude that by the voluntary contract or agreement of the plaintiffs there was a change, other than by the death of the insured, in the interest, title, and possession of the insured property, and in view of the fact that the policy of insurance provided that “if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance, the entire policy shall become void,” plaintiffs cannot recover in their suit upon said policy, and it therefore follows that the court erred in not rendering judgment for defendant, Eire Association of Philadelphia. East Texas Fire Ins. Co. v. Clarke, 79 Tex. 23, 15 S. W. 166, 11 L. R. A. 293; Rochester German Ins. Co. v. Schmidt, 162 Fed. 447, 89 C. C. A. 333; May on Insurance, par. 287; Hartford Fire Ins. Co. v. Keating, 86 Md. 130-145, 38 Atl. 29, 63 Am. St. Rep. 499; Fire Association v. Flournoy, 84 Tex. 632, 19 S. W. 793, 31 Am. St. Rep. 89; Phoenix v. Quinette, 36 Okl. 384, 128 Pac. 722.

In the case of East Texas Fire Ins. Co. v. Clarke, supra, in discussing a similar provision in a fire insurance policy, our Supreme Court says:

“The word ‘interest,’ as defined, in Abbott’s Law Dictionary, means ‘any right in the nature of property but less than title. Its chief use seems to designate some right attaching to property which either cannot or need not be defined with precision.’ ”

In the case of Fire Association v. Flournoy, supra, it is said:

“It appears from the evidence on the 31st day of January, 1S88, Brady Bros, and Tinkle & Black entered into a written contract, in consideration of $400 paid to Brady Bros., and other payments to be made by Tinkle & Black, whereby Brady Bros, leased to Tinkle & Black for the term of three years, commencing February 1, 1888, all the property covered by the policy. The agreement states the time and amount of each subsequent payment, and contains this stipulation: ‘It is further hereby expressly understood and agreed by and between the parties to this contract that should the party of the second part, on or before November 3, 1888, pay to party of the first part an additional sum of $26.85, then and in that case the party of the first part doth hereby sell, transfer, .and convey unto the party of the second part the absolute title and ownership of all of said furniture and property.’ By the terms of the policy it is provided ‘that, if any change takes place in the title, interest, or possession of the property, except in case of succession by reason of the death of the assured, whether by sale, transfer, or conveyance, in whole or in part,’ etc., it shall become void. The court instructed the jury that the contract between Brady Bros, and Tinkle & Black created a change in the title to the property. We think this a proper construction of the contract. Insurance Co. v. Clarke, 79 Tex. 24, 15 S. W. 166 [11 L. R. A. 293]; Smith v. Insurance Co., 3 Cal. Unrep. Cas. 244, 23 Pac. 384.”

Appellees contend, however, that if it be assumed that the contract between Miss Perry and L. E. Perry was one otherwise enforceable, L. E. Perry was never entitled to specific performance, because acts on his part remained to be done which no court could force him to do; that if it be admitted that Miss Perry contracted to sell the property to L. E. Perry if he paid $3,000 in monthly installments of $150, quit drinking and lived with his wife, such conditions could not be enforced as against L. E. Perry, and therefore the necessary elements of mutuality is lacking.

We cannot altogether agree to such contention. The undisputed evidence shows that L. E. Perry paid to appellee $750 of the money consideration named in the contract or agreement between himself and his sisters, and so far as the evidence discloses' was fully performing his part of the contract at the time of the destruction of the property.

In the case of Halff Company v. Waugh, 183 S. W. 839, decided by this court on the 20th day of January, 1916, it is said:

“It is true that the contract does not bind the defendant to perform any of its provisions, and that it is for this reason unilateral; but the mere want of mutuality did not render the contract unenforceable after defendant had accepted * * * the truck, and in all things performed his part of the agreement, especially after he had paid $729.83 in part performance, and offered to strictly carry out its terms until the full purchase price of the truck should be paid. Hawralty v. Warren [18 N. J. Eq. 124], 90 Am. Dec. 613; Pittsburg Brick Co. v. Bailey [76 Kan. 42, 90 Pac. 803], 12 L. R. A._(N. S.) 745 ; Allegheny Oil Co. v. Snyder [106 Fed. 764] 45 C. C. A. 604; Schroeder v. Gemcinder, 10 Nev. 355; McAfee v. Crubb, 164 S. W. 925.”

We think the rule laid down in the above quotation a sound one. If it were not so, then in this case Miss Perry would have had the right to declare her agreement with her brother, L. E. Perry, at an end, and have taken possession of the billiard and pool hall at any time, even after L. E. Perry had, in strict conformity to the terms of said agreement, paid all but one monthly payment of $150, and had up to the time of' the fire fully complied with all other provisions of said agreement. We think it was clearly contemplated that L. E. Perry should be the owner of the property in question at the end of 20 months if he paid $150 per month until the $3,000 was paid, and had during this time quit drinking and lived with his wife.

What we have already said, and in view of the disposition we shall make of the.ease under appellant’s first assignment, renders a consideration and discussion of the remaining assignments unnecessary.

As it appears that the case was fully developed, and it further appearing that plaintiffs were not entitled to recover, and that defendant was entitled to a peremptory instruction, the judgment of the trial court in favor of plaintiffs is here reversed and judgment is rendered for defendant.

Reversed and rendered.
      —-\T?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DANE, J.

text:
    COWARD v. SUTFIN et al.
    (No. 7087.)
    (Court of Civil Appeals of Texas. Galveston.
    March 9, 1916.
    Rehearing Denied April 6, 1916.)
    1. Divoeoe Petition — Sufficiency.
    A petition alleging that plaintiff resided in the county of Galveston of this state, and had been and now is a bona fide resident of the state of Texas and the county of Galveston for more than one year before the commencement of the action, is sufficient under Rev. iSt. 1911, art. 4632, declaring that no suit for divorce from the bonds of matrimony shall be maintained unless the petitioner for such divorce shall at the time of exhibiting his or her petition be an actual bona fide inhabitant of the state and shall have resided in the county where the suit is filed six months next preceding the filing of the suit.
    [Ed. Note. — Por other eases, see Divorce, Cent. Dig. §§ 287-289; Dee. Dig. @=91.]
    2. Sequestration @=20 — Judgment on Bond — Pleadings.
    In a divorce suit where plaintiff sought to sequester property and it was replevied by claimant, judgment may be rendered on the re-plevin bond furnished by the claimant, though there were no pleadings on which to base such judgment.
    [Ed. Note. — Por other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. <§==520.]
    3. Sequestration @=>20 — Sequestration of Property — Replevin—Judgment on Bond —Damages.
    Where, on plaintiff’s divorce suit, property which was sequestered was claimed, by appellant and he gave a replevy bond, judgment having gone for plaintiff, judgment on the bond should be for the value of the property at time of trial plus reasonable rental value, and should not be for the value of the property at the time it was replevied plus rental value.
    [Ed. Note. — Por other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. @==>20.]
    4. Sequestration @=>20 — Sequestration op Property — Replevin — Judgment — Earning Value op Property Replevied.
    Where an automobile sequestered by plaintiff was replevied by a claimant, judgment having gone for plaintiff, she is entitled to the actual earnings of the machine while in claimant’s possession, or, if they could not be ascertained, to the reasonable and probable earnings of the machine.
    [Ed. Note. — Por other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. @=20.]
    5. Sequestration @=20 — Replevy—Bond — Damage.
    An automobile sequestered by plaintiff was claimed by appellant, who gave a replevy bond. Judgment against appellant provided that plaintiff should recover the principal sum named in the bond, subject to a credit in case the automobile was returned. Held, that as plaintiff was entitled only to recover the value of the automobile at the time of trial, plus its earnings during the interval, the judgment was fundamentally erroneous.
    [Ed. Note. — Por other cases, see Sequestration, Cent. Dig. §§ 42 — 49; Dee. Dig. @=>20.]
    6. Sequestration @=>15 — Sequestration op Property — Replevin Bond — Return op Property — Effect.
    Under Rev. St. 1911, art. 7108, declaring that, if property tendered back by defendant has been injured or damaged while in his possession under a replevy bond, the amount of such damage shall be adjudged by the officer or constable receiving the property, appellant who replevied property is entitled to return it, though it was damaged during the interim, upon paying the amount of the damage.
    [Ed. Note. — Por other cases, see Sequestration, Cent. Dig. §§ 25-32; Dec. Dig. @==>15.]
    7. Appeal and Error @=>1073(1) — Review-Harmless Error.
    As one who replevied sequestered property is entitled to return it under Rev. St. 1911, art. 7108, and receive credit therefor, without any order of court, the fact that the judgment for plaintiff provided for return only in event the property was not injured is harmless, though erroneous.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4240; Dec. Dig. @=> 1073(1).]
    8. New Trial @=>85 — Right to — Discretion of Court.
    In a divorce suit, where plaintiff sequestered an automobile which was claimed by appellant, appellant engaged counsel- to file an answer and to represent him on trial, but they failed to do so without notice. On the day of the trial appellant’s son was very ill and his presence with his son was necessary. Held that, upon a showing of a meritorious defense, appellant was entitled to a new trial, and it was error for the court to refuse to hear his evidence on such motion.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 170-172; Dec. Dig. @=85.]
    9. New Trial @=>1 — Duty of Court — Prevention of Wrong.
    The power of the trial court to prevent probable wrong by granting a new trial should be freely exercised.
    [Ed. Note. — Por other cases, see New Trial, Cent. Dig. §§ 1-3; Dec. Dig. @=>1.]
    Error from District Court, Galveston County; Robt. G. Street, Judge.
    Suit for divorce by Viola Sutfin against Earnest Sutfin in which a writ of sequestration was issued, and D. A. Coward replevied property sequestered. There was a judgment for plaintiff against the claimant, and claimant brings error.
    Reversed and remanded.
    Meek & Kahn, of Houston, for plaintiff in error. Geo. G. Clough, of Galveston, for defendant in error.
   DANE, J.

This suit was instituted by Viola Sutfin against her husband, Earnest Sut-fin, for a dissolution of the bonds of matrimony existing between them, and for their household goods valued at $150, and against her husband and appellant Coward jointly for an automobile valued at $400.

Plaintiff alleged in her original petition that at the time of filing same she resided in the county of Galveston of this state,' and that she had been and was at the time of filing her suit a bona fide inhabitant of the state of Texas and county of Galveston, and had been such for more than one year next before the commencement of this suit; that she is the owner of an automobile, described in the petition, in her separate right; and that she fears that her said husband and defendant Coward, unless restrained by order of court, will dispose of said property, etc.

Upon plaintiff’s application a writ of sequestration was issued, and said automobile was taken from the possession of defendant Coward by virtue thereof. Thereafter, to wit, on the 26th day of September, 1914, Coward gave a replevy bond in manner and form as provided by law, with Dan Wilson and A1 Maher as his sureties, and by virtue of such bond took possession of said automobile.

The cause was called for trial on the 12th day of December, 1914. Plaintiff appeared and announced ready for trial, but neither of the defendants appeared in person or by counsel. The trial court heard the evidence introduced by plaintiff and rendered judgment in her favor — first, dissolving the bonds of matrimony existing between her and defendant Earnest Sutfin; second, judgment against said Earnest Sutfin for the title and possession of the household goods sued for; third, judgment against Earnest Sutfin and (appellant) Coward for the title and possession of the automobile sued for by her; and, fourth, judgment against L. A. Coward as principal, and 'Dan Wilson and A1 Maher as sureties, upon said replevin bond for the sum of $600. This decree further provides as follows:

“But it is further ordered, adjudged, and decreed by the court that the defendant D. A. Coward shall have the right, at any time within ten days after the date of this judgment, to deliver to the sheriff, or any constable of this court, the said automobile sequestrated, being Eord Car Motor No. 491,631, if the same has not been injured or damaged since the replevin, and upon such delivery so to be made there shall be credited, upon the herein judgment for $600, the sum of $300, the same being the proven value of said car and automobile at the time of the execution of said bond.”

Prom so much of the judgment as is against D. A. Coward, Dan Wilson, and Á1 Maher said parties have appealed.

Appellants insist that the trial court had no jurisdiction to hear and determine appellee’s suit for a divorce from her husband, and consequently no jurisdiction to hear and determine the other matters involved therein, because there is no allegation in the petition that the plaintiff was an actual bona fide inhabitant of the state of Texas, and had been such inhabitant for one year next preceding the filing of her suit, and that she resided in Galveston county, where the suit was brought, for six months next preceding the filing of said suit.

There is no merit in appellants’ contention. It is alleged in the petition “that plaintiff resides in the county of Galveston of this state, and that plaintiff has been and is now (the date of filing the suit) a bona fide inhabitant of the state of Texas and county of Galveston, and has been for more than one year next before the commencement of this action.” This allegation substantially meets the requirements of article 4632. Rev. St. 1911, which provides:

“No suit for divorce from the bonds of matrimony shall be maintained in the courts, unless the petitioner for such divorce shall, at the time of exhibiting his or her petition, be an actual bona fide inhabitant of the state, and shall have resided in the county where the suit is filed six months next preceding the filing of the suit.” Jones v. Jones, 60 Tex. 455; Needles v. Needles, 54 S. W. 1070.

In the case of Jones v. Jones, supra, it is said:

“The plaintiff here alleges that she is a bona fide inhabitant of Camp county, where the suit was brought, and had been so continuously for six months before the commencement of this action. * * * We think that all such necessary facts are fully stated in petition, and the court had jurisdiction of the cause.”

Appellants also insist that the court erred in rendering judgment against them on the replevin bond for the sum of $600, for the reason that there was no pleading upon which such judgment could be based, and that such error is fundamental. If the proposition presented by the foregoing assignment was an open one, and had not been heretofore decided by our courts adversely to appellants’ contention, the writer would be disposed to hold that the plaintiff should be required to allege by supplemental pleadings the specific damages suffered by reason of the taking of the automobile under the re-plevin bond, so that defendants might have prepared themselves to controvert the allegation of damages. But the decisions of the courts are adverse to appellants’ contention. Wandelohr v. Grayson County Bank, 106 S. W. 415; Tyson v. Bank, 154 S. W. 1055; Morris et al. v. Anderson, 152 S. W. 677. In the case last cited it is said:

“It can be said the law in this case gives the defendant affirmative relief without any plea on the replevin bond when the plaintiff failed to establish her cause.” Again: “We think the statutes under which plaintiff executed the re-plevin bond clearly authorizes the court to render judgment against the maker thereof for the return of the property or its value and for the value of its rents.”

Following the decisions referred to, we must overrule appellants’ assignment.

Appellants’ second assignment is as follows:

“The court erred in finding that the automobile at the time of the execution of the replevin bond was of the value of $300, and in rendering judgment against the appellant and his sureties, Dan Wilson and A1 Maher, for the sum of $600, said amount including the item of $300 found to be the value of the machine at the date of the execution of the bond, and the other $300-being for the value of the hire of said machine at $5 per day, for the reason that there was not a scintilla of evidence before the court as to what was the value of the automobile at the date of the trial, and it was the duty of the court to find from the evidence, if any there was, the value of the automobile at date of trial, and not at the date of the giving of the replevin bond, and it was fundamental error for the court to find the value of the automobile as of date of the replevin bond and to render judgment against the appellant and the sureties on the replevin bond for the value as of that date and not as of the date of the trial.”

The judgment shows that the trial court found the value of the property at the time of the execution of the replevy bond and not at the time of the trial. In such cases as the one now under consideration, proof should be made of the market value of the property, taken under the replevin bond, at the time of the trial. Luedde v. Hooper, 95 Tex. 172, 66 S. W. 55; Wood v. Fuller, 34 Tex. Civ. App. 178, 78 S. W. 236; Martin v. Berry, 87 S. W. 712; Talcott v. Rose, 64 S. W. 1009; Lewter v. Lindley, 81 S. W. 776.

In the case of Luedde v. Hooper, supra, Judge Brown, speaking for our Supreme Court in answering the following certified question, in a case similar to the one now before us, to wit, “Should the value of property in a case like the present be ascertained and determined at the time of trial, or at the time that the owner was illegally deprived of possession of the same, or at the date of the execution of the replevy bond by the defendant and his sureties in such a bond?” said:

“When a plaintiff sues to recover personal property, and by writ of sequestration places it in the custody of the sheriff or other officer, the defendant may retain possession of the property by giving bond conditioned as prescribed in article 4874, one of the conditions being ‘that he (defendant) will have such property, with the value of the fruits, hire, or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof,’ efe. The judgment to be rendered by the court in case plaintiff shall recover is prescribed in the following article of the Revised Statutes: ‘Article 4876. The bond provided for in the three preceding articles shall be returned with the writ to the court from whence the writ issued, and in case the suit is decided against the defendant, final judgment shall be entered against all the obligors in such bond, jointly and severally, for the value of the property replevied, and the value of the fruits, hire, revenue or rent thereof, as the case may be.’ If the property be not damaged, the defendant may discharge the judgment by delivering the property itself to the sheriff; and, if it be damaged, then he may deliver the property by paying the damages, to be assessed by the sheriff. Articles 4877, 4878. The language used in article 4876, ‘the value of the property replevied,’ has been construed by this court to mean the market value at the time of the trial. Watts v. Overstreet, 78 Tex. 571, 14 S. W. 704. The opinion in that case is well supported by sound reasons, and we deem it unnecessary to add anything to it. That decision is sustained by the following cases, construing statutes with similar provisions to ours: Brewster v. Silliman, 38 N. Y. 423; Allen v. Box, 51 N. Y. 562, 10 Am. Rep. 641; Chapman v. Kerr, 80 Mo. 158 ; O’Meara v. Mining Co., 2 Nev. 112. There is seeming conflict of authority on this'question, but we are satisfied to rest the construction of the statute as already announced, by which the practice of the courts of this state has been shaped. We answer that the value of property sequestered and retained by a defendant under replevy bond should be determined by its market value at the time of the trial when the question arises in the original suit and under the statute.”

We decline to follow the contention of appellee that the rule announced by the Supreme Court in the ease just quoted is not the law and should not be followed, and that we should follow the rule as announced by the Court of Civil Appeals in the case of McLeod v. Craig, 43 S. W. 937. This court is controlled by the decisions of the Supreme Court.

We also think that the recovery to be awarded for the fruits, hire, and revenues of the automobile should he such sum as would compensate appellee for loss sustained by reason of the detention of said automobile, or its actual earnings (fruits) while in the possession of appellant, or, in the event said actual earnings cannot be ascertained, then the reasonable and probable earnings (hire) of said automobile, based upon the manner and kind of use to which it was put from the time appellant took possession of same until it is returned to appellee. See Railey v. Hopkins, 50 Tex. Civ. App. 600, 110 S. W. 779. The difference in the value of the automobile at the time appellant took possession of it under the replevin bond and at the time he tenders it back to the officer from whom he received same is to be adjudged by said officer before he is compelled to receive the same as a credit upon the judgment recovered against defendant and his bondsmen. As the judgment rendered by the trial court discloses the error complained of, we think such complaint presents fundamental error, and we therefore consider and sustain said complaint.

The judgment rendered by the trial court was erroneous in adjudging that appellant shall have the right at any time within ten days after date of judgment to deliver the automobile to the sheriff, only in the event the same had not been injured or damaged, since it was replevied, as by article 7108, Rev. St. 1911, it is provided:

“If the property tendered back by the defendant has been injured or damaged while in his possession under such bond, the sheriff or constable to whom the same is tendered shall not receive the same, unless the defendant at the same time tenders the reasonable amount of such injury or damages, to be judged of by such sheriff or constable.”

Under this article appellant is authorized to return the property taken under the bond, within ten days after judgment, to the officer, and if, at the time he returns the same, he tenders to said officer the injury or damage thereto, if any, while in his possession under the bond, such officer must receive such property, and its value upon return must be credited upon the judgment against the defendant and his bondsmen, thus relieving the parties from payment of such judgment to the extent of such credit.

But such error is not cause for reversal of the judgment, as, under the law, appellant would have the right to return the property when he complies with the requirements thereof, without an order to that effect being made by the court. Mills v. Hackett, 65 Tex. 580.

Appellant’s seventh assignment is that the court erred in not granting his motion for new trial, wherein, among other things, he alleges that “this defendant shows that he could not reasonably be expected to be in attendance on this court in this cause on the day of the trial hereof, because he says his little son. was seriously ill at the residence of this defendant in a distant and remote part of the city of Galveston, and, as this defendant then believed, was in danger of his life, and this defendant was under the necessity and duty of caring for said .child and of conveying said child to a sanitarium for medical aid and attention, all of which he did do, and was doing at the time of said trial and at the time of the default claimed by plaintiff, and hut for which he would have been in attendance upon this court in this cause, in support of which is attached hereto affidavits marked Exhibit A and Exhibit B, and made part of this motion.

This defendant having engaged counsel, as hereinbefore shown, believed that his said counsel would be in attendance upon this court, and would prepare and file his said answer, as in fact they had agreed to do, and would have done, but for the facts shown in paragraph 2 hereof, and so believing relied upon his said counsel to so file his answer and represent him on the trial hereof, and he did not know that his answer had not been filed, and he did not know that his counsel did not appear for him until after the said judgment complained of had been entered. And in support of the allegations herein respecting the employment of counsel and the answer prepared by them and delivered to counsel for plaintiff, and their withdrawal from his defense herein, he attaches the statement of Mr. King to this motion, and the same is marked Exhibit O and made part hereof.

He shows that he has a good and meritorious defense to' the action of the plaintiff herein, and had caused the same to be set forth in his written answer, which said written answer, being the same as referred to in the preceding paragraph hereof, is hereto attached and marked Exhibit D, made a part of this motion, and requested to be filed among the papers of this cause, as of the second day of this term of court, and to be effective as his written answer of that date.

The affidavit of Dr. J. S. Jones attached to the motion for new trial is as follows:

“Know all men by these presents: That I am a regular licensed practicing physician in Galveston, Galveston county, Tex., and have been for more than one year next preceding the making of this affidavit; that I know L. A. Coward of Galveston, Galveston county, Tex.; that on the 12th day of December, 1914 (D. A. Coward has a child about three years old); that on the day just mentioned and for long prior thereto it had been seriously ill with an affection about the throat; that in my opinion an operation was imperative; that in my opinion the child was in a very dangerous condition; that in my opinion that in the presence of Mr. Coward the operation- was absolutely necessary and proper; that on the morning of the 12th day of December, 1914, I performed an operation upon the child and this operation took place at 9:30 a. m.; that for some time prior to the operation we were making preparation for the operation, and Mr. Coward’s presence was required.
“This the 26th day of December, A. D. 1914.
“J. S. Jones.
“Subscribed and sworn to before me this the 26th day of December, A. D. 1914.-
“[Seal.] L. R. Pullor, Notary Public
“in and for Galveston county, Tex.”

The record shows that this cause was called for trial on the 12th day of December, ÍL914; that it was tried in the absence of appellant Coward and judgment rendered against him; that after the case was called for trial Messrs. King & Hughs, attorneys for appellant, withdrew from the case, without filing any answer for him, and that they had not notified him of their intention to so withdraw from the case, and that they would not further represent him; that he filed his motion for a new trial in due time, alleging, among other things, that he had a meritorious defense to plaintiff’s cause of action, and setting out defensive matter which, if true, would have tended to defeat said cause of action. The motion also alleges the sickness of his son and the necessity for his presence at the bedside of his son, as set out in his assignment; that the attorneys employed by him had prepared his answer, and that the same had been handed to counsel for plaintiff, and the failure or refusal of his attorneys to file said answer was by reason of an affidavit made by the defendant Earnest Sutfin, which counsel for appel-lee showed to his counsel, the existence of which he had no knowledge. This motion was properly sworn to by appellant. The court refused to hear evidence in support of said motion, except such affidavits as were attached thereto, and overruled same.

We think the trial court erred in overruling appellant’s motion without giving him a full hearing upon the evidence tendered. If the matters alleged in said motion are true, appellant was entitled to a new trial. The power to protect litigants against probable wrongs by rendition of judgments in their absence lies peculiarly in the trial court, and it should be freely exercised to prevent probable wrongs and injuries to parties litigant in his court. Goodhue v. Meyer, 58 Tex. 405; Chandler v. Meckling, 22 Tex. 42. This being true, the judgment of the trial court should be reversed, and the cause remanded for another trial, and it is so ordered.

Reversed and remanded.
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