author: FLY, C. J.

text:
    INTERNATIONAL & G. N. RY. CO. v. WILLIAMS.
    (No. 5614.)

    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1916.
    Rehearing Denied March 15, 1916.)
    1. Carbiebs <$=>320(25) — Passengers — Duty to Assist — Question fob Juey.
    It is a question of fact for the jury whether a railroad owed to the plaintiff the duty of assisting her from its train, and is to be determined from a consideration of all the circumstances.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1244; Dec. Dig. @=>320(25).]
    2. Caeeiebs <$=>320(25) — Injuries to Passengers — Liability—Evidence.
    Evidence that plaintiff, 59 years of age and corpulent, weighing 175 to 180 pounds, having two bundles and a handbag, and having under her charge a 5 year old boys attempted to alight and fell because no employe of the railroad assisted her, raises the issue whether the railroad was negligent in the premises.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1244; Dec. Dig. @=>320(25).]
    3. Carbiers @=>318(9) — Injuries to Passengers — Liability—Evidence.
    Evidence held to show that it was the duty of employés of the carrier to assist passengers, who from the circumstances required assistance, from the trains of the defendant.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1314; Dec. Dig. @=>318(9).]

      4. Carriers <§=>303(8) — Injuries to Passengers — Liability.
    A carrier is chargeable with knowledge of the necessity of assisting a passenger from the train when she was 69 years old, corpulent, carried several bundles, and had in charge a small child.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1232; Dec. Dig. <§=>303(8).]
    6. Carriers <§=>280(1) — Duties to Passengers — Care Required.
    A carrier owes to every passenger the highest degree of care without regard to age, sex, or bodily infirmity, the degree of care to be determined by the circumstances of each ease.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1088, 1102, 1106, 1109; Dec. Dig. <§=>280(1).]
    6. Carriers <§=>320(1) — Care Required — Questions eor Jury.
    It is a question of fact for the jury in each case whether or not the highest degree of care was exercised in the premises by the defendant carrier.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1315, 1317; Dec. Dig. <§=>320(1).]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Action by Carrie Williams against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and Cobbs, Eskridge & C'obbs, of San Antonio, for appellant. J. R. Norton and Jas. Rout-ledge, both of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This suit was instituted by appellee to recover damages alleged to have been inflicted upon her person through the negligence of appellant in failing to assist her to alight from its train in Austin, Tex. The cause was tried by jury and resulted in a verdict and judgment in favor of appel-lee for $4,000.

Appellee was carried by appellant to Austin, where she desired to leave the train to visit her daughter. When she reached her destination and attempted to alight she fell from the top step to the platform and sustained serious injuries. She was a woman of 59 years of age and corpulent, weighing 175 or 180 pounds, and had two bundles and a handbag and had under her charge a boy about 5 years old. No effort was made by any employé to assist appellee at the time she was to go down the steps, and she stumbled and fell.

Appellant states that the only question in this case is:

“Under the law as administered in Texas, can a carrier be charged with negligence for failing to have an employé to assist a strong, healthy, female passenger, who made no request therefor, to step from the interior to the platform of a standing car and down each step therefrom to the ground?”

That does not accurately state the issue as made by the facts, but rather the issue is: Did the railway company owe the duty to an elderly female passenger, who was quite corpulent and incumbered With bundles and bag, in charge of a child, to assist her to alight from its train? This is a question of fact to be determined by the jury in view of the facts and circumstances. It is of course not laid down as a rule of law that it is the duty of common carriers to assist “strong, healthy, female passengers” off its train, but the facts of this case raise an issue as to whether it was negligence for appellant to have failed to furnish assistance to appel-lee in leaving the train. The jury was justified in finding that it was negligence.

No Texas case has ever held that it was the duty, as a matter of law, for carriers to assist passengers from their trains, nor has any case ever held that no circumstances could arise in which it becomes the duty to assist passengers to alight from trains. This is admitted to be the law, by appellant, and — •

“that under special circumstances this duty may arise in which event it is a proper question to submit to the jury for determination.”

In other words, the question of whether the carrier should have assisted appellee to alight is one of fact. The employés swore that it was their duty to assist passengers from the car. Ratclifire swore:

“It was my duty to help her. The instructions were that I should help off all lady passengers and all children. * * * If I had known this lady needed assistance I would have done more than I did, but I didn’t know it. If I had known she had a young child with her and three bundles to carry I would have gone up there and helped her with the child and the bundles; it was my duty. I had been through the car six times between San Antonio and Austin. She weighed about 180 pounds.” .

The auditor testified:

“The duty of the brakeman and the porter is to help women and children off the car, and if they are otherwise occupied it is the duty of the conductor to do it.”

The conductor and porter testified to the same effect, and yet no one made any effort to assist appellee, who was corpulent, nearly 60 years of age, and had bundles and a hand bag to carry, and a small boy in charge. None of the Texas cases cited by appellant militate against the duty of a carrier under certain circumstances to assist certain passengers to alight.

There is an expression as to carriers owing no duty to assist passengers off trains in the ease of Railway v. Wortham, 73 Tex. 25, 10 S. W. 741,3 L. R. A. 368, in which case the appellee was shown to have been hurt by a stool provided by appellant, by means of which passengers were to alight, which turned and threw her to the ground. The question of assistance to the passenger was not raised by the pleadings, and the expression referred to was purely obiter dictum. However, the expression was confined to the facts of that case, and no general rule was enunciated.

The cited case of Railway v. Miller, 79 Tex. 78, 15 S. W. 264, 11 L. R. A. 395, 23 Am. St. Rep. 308, held, just as this court does, that the duty to assist a passenger to alight may arise under the facts of a case and is a question for the determination of the jury. The court held that a charge to the effect that the carrier owed no duty to appellee in assisting her to alight from the train, unless she had proved that she was disabled or infirm, was properly refused. The following charge given by the court was approved:

“Whether or not the failure to assist Mrs. Miller in getting off the train on the part of the persons in charge of said train was a want of that measure of care which the employés of said receivers owed to her as a passenger, you will determine from all the circumstances, taking into consideration the failure on her part to ask for such assistance.”

The court said:

“As already said, the degree of care necessary to be exercised by the carrier was correctly stated in the charge of the court in view of the facts of the case, and whether .to constitute this degree of care it was necessary that employés of the carrier should have assisted Mrs. Miller to alight from the train was properly and correctly submitted to the jury in the charge given.”

In the case of Railway v. Frey, 25 Tex. Civ. App. 386, 61 S. W. 442, decided by this court, there was a proper platform, and assistance was given the passenger, and it was held that there was no evidence of negligence. The court said:

“In this ease not only does the testimony fail to show an improper platform, but it tends to show a proper one, and, in addition, that proper personal assistance was given to persons alighting from the cars.”

There is nothing in that decision to sustain the theory of appellant. The same can be said of the case of Railway v. Buchanan, 31 Tex. Civ. App. 209, 72 S. W. 96, cited by appellant. The Texas authorities all hold that if the circumstances indicate that a passenger needs assistance in alighting from a train, it becomes the duty of the carrier to render such assistance.

Appellant’s employé knew or should have known that appellee required assistance in leaving the car. The carrier is chargeable, under the facts of this case, with knowledge of the necessity of assisting the passenger from the train. She was large; aged, and burdened with bundles and the charge of a small child. Railway v. Russell, 8 Tex. Civ. App. 578, 28 S. W. 1042.

The circumstances of each case determine the negligence or not of the carrier, but it is the rule that the carrier owes to every passenger the highest degree of care, without regard to age, sex, or bodily infirmity. What, however, would be the greatest degree of care under one state of facts might be negligence under others. Whether or not the care has been exercised is a matter to be determined by a jury. Railway v. Finley, 79 Tex. 85, 15 S. W. 266.

The judgment is affirmed.
      <$=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

      <§r=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    LAWRENCE v. STORY & CLARK PIANO CO.
    (No. 1555.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 4, 1916.
    Rehearing Denied Feb. 17, 1916.)
    Chattel Mortgages <gtv>283 — Foreclosure— Sale.
    Where a chattel mortgage on a piano was foreclosed, and the judgment and order of sale described it as player piano No. 56388, a writ directing the seizure and sale of such piano does not authorize the seizure and sale of player piano No. 56338, which was in the possession of appellant, who was not the mortgagor; for, if the piano was incorrectly described in the mortgage, the instrument should have been reformed in the foreclosure suit.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig. <©=»
    Appeal from Gregg County Court.
    Proceedings between F. M. Lawrence and the Story & Clark Piano Company to determine the right of property in a piano levied upon while in the former’s possession. From a judgment for the latter, the former appeals.
    Reversed and rendered.
    F. B. Martin, of Longview, for appellant. M. L. Cunningham, of Longview, for appellee.
   WILLSON, C. J.

This was a proceeding under the statute to try the right of property in a piano levied upon while in appellant’s possession by virtue of an order of sale issued on a judgment in appellee’s favor against Annie Lawrence for $297, and foreclosing the lien of a mortgage on “one Weiler player piano No. 56388.” In accordance with the judgment, the writ directed the sheriff to seize and sell “Weiler player piano No. 5638S.” The piano levied upon and claimed by appellant was Weiler player piano No. 56338. The appeal is from a judgment determining that this piano was the one specified in the writ and subject to it.

The piano covered by the mortgage foreclosed was not otherwise described in either the judgment or order of sale issued on it than as above stated, to wit, “Weiler player piano No. 56388.” Appellant contended in the court below, and contends here, that the seizure while in his possession of piano No. 56338 was not authorized by the writ against piano No. 56388. We think the contention should be sustained. If the piano levied upon in fact was the one mortgaged to ap-pellee, and it was by mistake described in the mortgage as No. 56388, instead of No. 56338, the instrument should have been reformed in the foreclosure suit and foreclosed as reformed. Or, in that event, if the piano was correctly described in the mortgage, and by mistake was described as No. 56388 instead of 56338 in the judgment, it should have been corrected in some way authorized by law, and the writ should have conformed to the judgment as corrected. It is plain, we think, that where two articles are not otherwise distinguishable than by a number, a writ directing the seizure and sale of one of them by its number does not authorize the seizure and sale of the other.

The judgment will be reversed, and judgment will be here rendered in favor of appellant
      <S=3Por other cases see same topic and KEY-NUMBER in all Key-Nmnbered Digests and Indexes


author: WALTHALL, J.

text:
    TEXAS & P. RY. CO. v. TUCKER.
    (No. 532.)

    (Court of Civil Appeals of Texas. El Paso.
    March 2, 1916.
    Rehearing Denied March 16, 1916.)
    1. Damages <®=»130 — Injury to Passenger— Verdict — Evidence.
    In an action for personal injuries received while riding on ‘defendant’s train, evidence held sufficient to support a verdict for $1,500.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. <⅜=>130.]
    2. Appeal and Eeeoe <©=3548(4) — Improper Communication to the Jury — Affidavit— Record — Bill oe Exceptions.
    On appeal, error was assigned on the overruling of defendant’s motion for a new trial because of a communication made to the jury out of court, and the motion for a new trial had attached to it an affidavit of the person communicating with the jury setting forth the substance of the conversation. Held, in the absence of a bill of exceptions setting forth the fact that evidence was heard on such motion, and setting forth the evidence so heard, the assignment of error will be dismissed, under Rev. St. 1911, art. 2021, providing that the court- shall hear evidence on motion for a new trial because of a communication made to the jury; the statute requiring proof to be made by the personal appearance and examination of the witnesses in open court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2439; Dec. Dig. <©=>548(4).J
    Appeal from District Court, El Paso County; Ballard Cold well, Judge.
    Action by Susan Tucker against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Russell & Gillett, of El Paso, and Geo. Thompson, of Dallas, for appellant. Uea, McGrady & Thomason and Leigh Clark, all of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

The appellee brought this suit to recover damages for personal injuries, which she alleges she sustained, while a' passenger on one of appellant’s trains. • She alleged that on the 15th day of October, 1914, while she was in the negro coach and seat assigned to her by appellant, and while asleep, by reason of some violent and negligent jar of the train, or by reason of a collision of the train with an engine or other train, or by reason of some violent impact of the train, or violent and unusual motion or jar of said train, she was with great force thrown to the aisle of the coach, and sustained injuries in the ends of her fingers of her left hand and to her right elbow, and to her head, back, and hip, and was injured internally, and states specifically the said injuries, the extent of them, and the pain and inconvenience suffered therefrom. Appellant answered, traversing the facts alleged as to the negligence and the injuries alleged. The court submitted the case to the jury on a general charge, and the jury returned a verdict in favor of the plaintiff, upon which judgment was rendered for ap-pellee for the sum of $1,500.

Appellant’s third assignment and proposition thereunder are to the effect that the verdict of the jury for $1,500 is excessive for the reason that the uncontradieted evidence shows that plaintiff was old and in a weak and infirm condition, and at the time of the accident was suffering from a tumor in her abdomen, which caused her to suffer, in the manner complained of, prior to her injuries; that her injuries were slight and temporary, and from which she has fully recovered; and that the evidence did not warrant a verdict for more than nominal damages. The court gave the following as a part of the charge to the jury:

“You are charged that, even though you may believe from the evidence that the plaintiff, at the time of the alleged accident and injury to her, was not physically well, or that she had a tumor, if she did, then you are charged that if her condition was aggravated by reason of her being thrown from her seat, by the negligence of defendant, if any, if she was, and that the effect of her injuries, if any, upon her, were by reason of her physical condition made more serious, you should find for the plaintiff to the extent of the aggravation, if any, and her injuries, if any, notwithstanding you may believe she was not physically sound at the time of her injuries; and, in this connection, you are charged that the defendant would not be liable to plaintiff for any injuries or physical impairment which she may have had and would have had, independent of any negligent act or omission of defendant, its agents or servants.”

We do not think the evidence shows only slight injuries justifying only nominal damages. The evidence of Susan Tucker shows that for several days following the accident she suffered much pain in her hand, elbow, back, hips, and head, and was confined to her bed for several weeks. She had a physician attending her at Dallas, and again after she returned to El Paso. She testified that she continued to suffer much pain from her injuries long after her return to El Paso. Dr. Miller, a physician ■ who attended her in some ailment prior to her injuries and who called to see her after her return to El Paso, stated that at that time she complained of dizziness, headache, pain in her sides and back. He said that the pain in her right side and hip could not be attributed to the tumor. He advised her to have Dr. Love, then attending her, continue the treatment. Dr. Miller, answering a hypothetical question, said:

“If Susan Tucker’s pains have continued up to this time [time of trial, June, 1915] I would say, if her injuries had been slight, there would be no manifestation of pain at this time, and, assuming that she did receive such injuries and she has continued to suffer pain, as a physician, I -would say that the prognosis of her affliction would be they will he indefinitely prolonged.”

Dr. Love, after stating that he had known plaintiff 10 or 12 years and had examined her before her injuries and found a growth or tumor, said, among other things:

“I know the time she made the trip to Mineral Wells or Dallas. It had been some time before that I had occasion to call on her or make an examination of her. When I examined her after the accident, I found a bruised spot on her elbow, and some little something the matter with her finger; don’t remember the nature of that. I examined her body and told her it would require some little time to tell the state of her injury. I saw her every day for a month or two after that. Her condition slowly improved. She complained most of soreness in the side, loss of sleep, nervousness — she didn’t eat much — and she complained of severe headaches and backaches. I treated her for that, and it continued until I ceased to treat her. I treated her for two or three months. When I ceased to treat her, her injui'ies were better and internal soreness had grown better. A person in the condition she was (from the tumor) could not stand a shock as well as one in a normal condition. I applied linament and recommended massage. I gave her powders to make her sleep. She wasn’t as heavy the last time I observed her as she was before she left on that trip.”

. Dr. Love, answering a hypothetical question, said:

“Assuming that she was violently hurled from her seat to the aisle of the car by a collision, and that before that she was free from pain in her back, hip, and head, and that following the shock such pains became manifest, I would say the shock caused the pains. * * * I told Dr. Satterlee, the osteopath, to begin her treatments light. The medicine I had given Susan helped her, relieved her, but hadn’t cured her. If Susan’s pains have continued severe up to the present time [June, 1915] the chances are they will continue indefinitely. She complained of pains in her head, back, and hip. She didn’t complain of these before she made the trip. In my opinion her symptoms were aggravated by the shock.”

Dr. Satterlee stated that when he called, the plaintiff was suffering from pain in the head, neck, and side, and stated the cause of it, knew that Susan Tucker was suffering pain, and did not come to that conclusion from what the patient said, but from the condition in which he found her, and stated in detail her condition. The evidence is sufficient to sustain the verdict, and the assignment is overruled.

Appellant complains that during the trial one of the jurors discussed the facts and merits of the cause with an outsider who had not and did not testify as a witness in. the case,, and that the conversation had was communicated to the other jurors, thereby causing the jurors to become prejudiced against defendant and to render an excessive verdict. Appellant called the attention of the court to the fact of such conversation in its motion for a new trial, and attached the affidavit of the outsider to the motion as an exhibit, and part of the motion in which the substance of the conversation was given. The ground in the-motion for new trial is dehors the record, misconduct of a' juror not in the presence of the court, and there is no bill of exceptions, showing the relevant facts as proved on the trial. In the absence of a bill of exceptions, it is impossible for this court to know what evidence the trial court had on the matter complained of when the ruling on the motion was made. Article 2021, Revised Statutes 1911 provides that where the ground of the motion for new trial is misconduct of the jury, or because of any communication made to the jury, or because the jury received other testimony, the court shall hear evidence thereof, and makes it competent to prove such facts by the jurors or others by examination in open court; and, if the matter of misconduct proven or the testimony received or communication made be material, a new trial may, in the discretion of the court, be granted. There is no suggestion here that appellant offered or the court heard any evidence on the matter stated in the motion or the ex parte affidavit attached to the motion. The affidavit itself was not offered or considered as evidence of the facts stated in the motion. The Dallas Court of Appeals, in Dallas Consolidated Electric Street Railway Company v. Kelley, 142 S. W. 1005, in construing the article of the statute above, said:

“It seems * * * the language used in the statute excludes the idea that the misconduct of the jury can be shown by affidavits, but requires proof of such to be made by the personal appearance and examination of the witnesses in open court.”

In the absence of a statement following the proposition, showing what the evidence was on the fact made the ground of the motion, the assignment must be overruled. Again, we are of the opinion that, whatever the conduct of the juror was, the verdict rendered was not excessive.

The case is affirmed.
      <@x^>For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    THRIFT & EDWARDS v. HOLLAND et al.

    (No. 5613.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 16, 1916.
    Rehearing Denied March 15, 1916.)
    1. Appeal and Error <©=ml011 — Review — Question op Fact.
    Where the evidence is conflicting and there is evidence to sustain the finding of the trial court, the court on appeal will not disturb the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. <©=> 1011.]
    2. Evidence <g=>354(13) — Books op Account.
    Entries in books on information received by the witness from third person were not admissible in evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1457,1458; Dec. Dig. <®^354(13).]
    Appeal from District Court, Victoria County; John M. Green, Judge.
    Action by C. S. E. Holland and another against Thrift & Edwards. From a judgment for plaintiffs, the defendant appeals.
    Affirmed.
    Emmett B. Cocke, of San Antonio, for appellant. Ely & Ragsdale and Proctor, Van-denberge, Crain & Mitcbell, all of Victoria, for appellees.

      Application ior writ of error pending in Supreme Court.

   CARL, J.

Appellee C. S. E. Holland brongbt suit against appellants on an assigned account which it was alleged had accrued in favor of Welder & Rathbone Company. The latter company was made a party on the allegation that it had guaranteed the account.

It is alleged that during the cotton market season of 1912 Welder & Rathbone Company, on various dates, had purchased cotton from appellants under an assignment at the beginning of the season substantially as follows: The cotton was to be shipped to Victoria or Galveston, same to be delivered by appellants f. o. b. cars at points of shipment and consigned to Welder & Rathbone Company, either at Victoria or Galveston, and that the weights and classification to be used in determining the amount to be paid for said cotton should be the weight at Victoria or Galveston, as the case might be, as determined by Welder & Rathbone Company, and the classification at said respective points as the same was determined to be by Welder & Rathbone Company; that appellants, under said agreement, shipped to Welder & Rathbone Company during the season various shipments of cotton, some to Victoria and some to Galveston, and which, based on weights and classifications at said respective points, aggregated in value $229,607.44; that in the instance of each shipment, appellants drew or caused to be drawn a draft upon Welder & Rathbone Company in payment of said particular shipment, and that each and all of said drafts were presented to and paid by said Welder & Rathbone Company; that the aggregate of said drafts was $231,088.15, or $1,480.71 in excess of the contract value of the cotton actually shipped by appellants and received by appellee Welder & Rathbone Company, which said overpayment was not discovered until the close of the cotton season. The drafts, with the dates upon which same were drawn together with the amount of each, the number of bales of cotton for which such drafts were in payment, etc., were set forth in exhibits to the petition; and, further, the transfer of the account was alleged, etc.

Appellants answered by general denial and special pleas, but asked no affirmative relief. It was alleged that C. S. E. Holland was not the bona fide owner of the claim sued on, and that J. J. Welder, H. E. Rathbone, and A. W. Turner were the real owners of the claim; and estoppel was pleaded against the parties because it is claimed Welder & Rath-bone Company furnished the defendants what are called “out turns” on the first shipment or two, and they showed an increase in weight and classification, and the Welder & Rathbone Company was repeatedly notified, both verbally and in writing, to notify the defendants promptly should there be any loss of weight or failure of the classification as made by the defendants, so that defendants might take proper steps to reimburse themselves from those selling them the cotton while the matter was fresh and the true facts might be ascertained. They say Welder & Rathbone Company failed to do this, although often reguested so to do, except as to the first one, two, or three shipments. On the contrary, it is asserted that the only claim made by A. W. Turner, with whom defendants had their dealings with the Welder & Rathbone Company, was for failure to fill a certain order of something over 200 bales of cotton, and defendants allege that Turner often told them that he had gotten behind with his “out turns,” but knew all the cotton they were shipping was showing better weights and grades than defendants had shipped on and would show nice profits. They say they relied on these statements of Turner, and the plaintiffs are es-topped now to deny that the weights and grades did come up to those made by defendants in their shipments.

There was a plea of privilege, but it is unnecessary to discuss same, as the record comes to us.

The trial was before the court without a jury, and judgment was entered in favor of Holland against Thrift & Edwards and against Welder & Rathbone Company in the sum of $1,480.71, the amount sued for, together with interest, and Welder & Rathbone Company were given judgment over against Thrift & Edwards for $1,341.85 of said amount. The judgment finds that Welder & Rathbone Company were guarantors of the claim, and execution is first directed against Thrift & Edwards. Thrift & Edwards alone have appealed.

The first assignment is that the judgment is contrary to law, because it clearly appears from the evidence that plaintiff failed to make out a case for the reason that, under the contract between Thrift & Edwards and the firm of Welder & Rathbone Company, Victoria Compress weights and classes of the various bales of cotton as determined by Welder & Rathbone Company should govern, and there is no evidence as to the classes of said cotton, or enough evidence to support a judgment against appellants. Turner testified that every bale of the cotton involved was shipped to Victoria and was classed by him in person at Victoria, and under the contract he or his firm was to do the grading and his gi’ading was to govern; and when the cotton was shipped to Galveston, the classifications were made by their representatives. Turner identified each draft and explained how he arrived at the prices and classification of the cotton covered by each particular draft. Magee, Welder & Bath-bone’s weigher, weighed all the cotton and verified the weight sheets, and it is in evidence that there was no compress weigher. Turner testified to these matters while on the stand and reviewed his calculations while so testifying. The weight sheets were introduced upon which the weight of each bale was given. Turner’s testimony showed the aggregate of the weight sheets, based upon the aggregate of the weights, etc. But under this assignment appellants apparently attempt to challenge the admission of certain testimony. The evidence, in its most favorable light to appellants, was conflicting, and where there is evidence to sustain the finding of the trial court, we would not disturb the judgment on that account. The assignment is overruled.

The matters complained of in the second assignment cannot be sustained, because there was ample testimony to support the judgment of the court. What a certain shipment or two to Galveston weighed and classed would not overcome positive testimony as to weights and grades given on the witness stand as to the cotton in controversy, especially since the market is susceptible to variation during the season. What Thrift & Edwards paid for the cotton would be no inconsiderable factor in determining whether they made a profit on it, and the simple fact that they sold some in Galveston on which they made about $1,000 profit, would not determine whether they made a profit on other shipments even at the same time. The assignment is overruled.

Turner denies that he made any representations, such as advising appellants that the weights and classifications of the Victoria cotton were holding up all right, and that same would show a gain to them. Turner admits seeing a notation on some of the cotton papers to notify Thrift & Edwards if the weights and grades were not correct. He says they made such requests in some particular instances. He got behind with his “out turns,” but explains that the lists came attached to a draft, sent through appellant’s local bank. He says that in one or two instances appellants called him up and asked about weights and grades of cotton from certain points of shipment. He says substantially that he examined the lists if he had time after the drafts were paid, but on account of pressure of work got behind and does not recall. He says he did not know that it was important to Thrift & Edwards to make prompt report on these matters, but says that when these inquiries were made, he gave the information desired. That clearly creates an issue in the testimony, and the trial court’s finding would be final, even where appellants’ testimony is as strong as it is the other way. The assignment is overruled.

Thrift testified that the entries in his books, as to weights and grades of shipments, were made largely from information furnished him over the telephone and by other parties. Such entries as the witness made himself or knew of his own knowledge, were not excluded, but only such as came to him from third persons. The fourth assignment is overruled, and the judgment is affirmed.
      <§c»For other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    WILKERSON et al. v. STASNY & HOLUB.
    (No. 5578.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 19, 1916.
    Rehearing Denied March 1, 1916.)
    1. Appeal and Error <§=3719(4) — Assignments op Error — Necessity.
    Where demurrer was sustained to an in-tervener’s plea and he filed no assignment of error, the ruling will not be reviewed on appeal.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 2973; Dec. Dig. <§=>719(4).]
    2. Execution <§=>37 — Property Subject to ■Execution — Mortgaged Property.
    Both at common law and under Bev. St. 1911, art. 3744, mortgaged chattels are subject to execution and sale thereunder on a judgment recovered against the mortgagor.
    [Ed. Note. — Por other cases, see Execution, Cent. Dig. §§ 51, 95-97, 101, 103; Dec Dig. <§=>37.]
    3.Execution <§=>268 — Sales — Mortgaged Property.
    Where a mortgage on mules was recorded so that it was notice, an officer, selling the animals under execution issued against the mortgagor, need not, under Bev. St. 1911, art. 3744, declaring that mortgaged goods may be sold on execution and that the purchaser shall be entitled to the possession when the property is held by the mortgagee upon complying with the conditions of the mortgage, notify purchasers of the existence of the mortgage.
    [Ed. Note. — Por other cases, see Execution, Cent. Dig. §§ 762-767; Dec. Dig. <®=»268.]
    4. Execution <§=3176 — Sales—Expenses.
    Where execution was levied on mortgaged mules and the mortgagee secured a decree temporarily enjoining sale, which was modified so as to allow sale in case purchasers wore notified of the mortgage, the judgment creditors, though the decree was erroneous, are not entitled to recover from the mortgagee the expenses of readvertisement, etc., for such expenses will be deducted from the sale price, and the mortgagor alone would be entitled to complain.
    [Ed. Note. — Por other cases, see Execution, Cent. Dig. §§ 459y2, 538; Dec. Dig. <§==>176.]
    Appeal from Williamson County Court; Bichard Critz, Judge.
    Action by Stasny & Holub against A. E. Wilkerson and others, in which John Cer-venka intervened. Prom a judgment for plaintiff and against the intervener, defendants appeal.
    Affirmed in part and in part reversed and rendered.
    See, also, 179 S. W. 669.
    Stanton Allen, of Bartlett, and Wilcox & Graves, of Georgetown, for appellants. W. A. Barlow, of Taylor, for appellee.
   KEY, C. J.

A. E. Wilkerson obtained a judgment against John Cervenka for $169.-84 in a justice of the peace court, and thereafter, under an execution issued upon that judgment, B. M. McLaughlin, constable of the court referred to, levied upon two mules as the property of John Cervenka to satisfy that judgment. Stasny & Holub, holding a promissory note for $500 executed by John Cervenka and secured by a mortgage lien upon four mules, brought this suit in the county court against Wilkerson and McLaughlin, to enjoin the sale of the two mules that had been levied upon as stated. A preliminary injunction was issued staying the ■sale of the property referred to, and upon a trial of the case in the county court, a judgment was rendered, modifying that injunction, but perpetually enjoining the defendants Wilkerson and McLaughlin from selling or offering for sale the two mules referred to, unless it was stated in the advertisement or notice required to be given by the officer making the sale that the sale would be made subject to the mortgage of the plaintiffs, and unless the sale should actually and expressly be made subject to that mortgage. It was also adjudged and ordered that the defendant Wilkerson take nothing by reason of his cross-action against the plaintiffs, Stasny & Holub; and judgment was also rendered against the defendants Wilkerson and McLaughlin for all the costs except those incurred by reason of the intervention of John Cervenka. John Cer-venka filed a plea of intervention, to which the trial court sustained a general demurrer ; and, as Cervenka has filed no assignment of error, we decline to pass upon that ruling although requested to do so by his counsel.

As to the controversy between the plaintiffs Stasny & Holub and the defendants Wilkerson and McLaughlin, and without referring in detail to the several assignments of error, we hold that the plaintiffs’ petition, as well as the facts upon which the case was decided, failed to show that the plaintiffs were entitled to the judgment they obtained or to any other relief. It requires no citation of authorities to show that the owner of personal property, although he" may have incumbered it by mortgage, can sell the same, and that the purchaser will acquire whatever title the- owner has, but will take the property subject to the mortgage; and it ought not to require the citation of authorities to establish the proposition that the title or interest of such mortgagor is also subject to sale under execution, the purchaser taking the same, as the owner held it, subject to the mortgage. The principle referred to has often been declared by decisions in this state, though generally in cases of trial of the right of property. Wright v. Henderson, 12 Tex. 43; Wooton v. Wheeler, 22 Tex. 338; Sparks v. Pace, 60 Tex. 298; Garrity v. Thompson, 64 Tex. 597. In fact the rule of law referred to is statutory, as shown by article 3744 of the Revised statutes, which reads as follows:

“Goods and chattels pledged, * * * or mortgaged as security for any debt or contract, may be levied upon and sold on execution against the person making the pledge, assignment or mortgage subject thereto; and the purchaser shall be entitled to the possession when it is held by the pledgee, assignee or mortgagee, on complying with the conditions of the pledge, assignment or mortgage.”

The trial court seems to have based its judgment upon its construction of this statute, but that construction is not regarded as sound. When the property was levied upon it was in the possession of the mortgagor, and not in possession of .the plaintiffs, who were mortgagees, and therefore a sale of the mortgagor’s interest therein, whether vouun-tarily or involuntarily made, would not have interfered with or adversely affected any right of Stasny & Holub, the mortgagees.

It may be true, though we express no opinion upon the question, that when it is sought to levy upon and sell the interest of a mortgagor in property in the possession of the mortgagee, the levy and sale should, in express terms, be made subject to the mortgage; but when such is not the case, and the property is in possession of the mortgagor when it is levied upon, the statute quoted does not require or contemplate that the officer making the levy should institute an inquisition for the purpose of ascertaining whether or not some one holds a prior mortgage upon it, and then specifically state in the notice of sale, and at the time of making the sale, that the property is sold subject to such mortgage. In the instant case the mortgage was recorded, the animals levied upon were in possession of the defendant in execution, and differed, at least in some respects, from those described in the mortgage; and we are satisfied that the statute referred to never intended to place upon the officer who made the levy the duty of determining whether or not the mortgage embraced the animals levied upon by him. That would be a judicial question, and it would seem that the Legislature would have no power to vest in an executive officer authority to decide such a question of law in such manner as to affect the rights of persons claiming an interest in the property. In fact we agree with appellant’s counsel that the statute means what it says, and merely intended to declare and make certain the proposition that mortgaged property may be sold under execution against the mortgagor, but that the purchaser would acquire no greater nor less title than would a purchaser directly from the mortgagor, and would- take it subject to any valid prior lien upon it. Whether or not a purchaser of mortgaged property, whether the sale be voluntary or involuntary, can claim protection as an innocent purchaser need not be decided in this ease, because appellees’ mortgage had been duly recorded, and therefore it was notice to the world as to appellees’ rights under the mortgage. The trial court held that the description contained in the mortgage was sufficient to put any one on notice that it covered the two animals here involved, although it stated their height and ages incorrectly. If that be true, as the mortgage was upon record, there could be no innocent purchaser of the property; and if the mortgage does not cover the animals referred to, as to which we express no opinion, then appellees have no case. Appellees alleged in their petition that if the property was sold under execution, the purchaser might remove it from the county, and make it very difficult and inconvenient for them to foreclose their mortgage when it became due, but the same might also he done by Cervenka, the mortgagor; and as no one can know who will buy the property under the execution sale, it is impossible for any one to correctly state that the purchaser will not preserve the property so as to render it as available for the satisfaction of the mortgage debt as it will be if it remains in the possession of the mortgagor. Hence we conclude that, upon the facts alleged in the plaintiffs’ petition and found by the trial court, judgment should have been rendered for appellants.

Appellants filed a cross-action, in which they sought to recover from appellees the additional expense that will be incurred in preserving and readvertising the property, and that would not have been incurred if ap-pellees had not wrongfully sued out the injunction. The trial court, having found that the injunction was rightfully sued out, rendered judgment against appellants upon their cross-action, and that judgment will be affirmed, but not for the reasons given by the trial court, because we hold that the injunction was wrongfully sued out; but it does not follow that the wrong referred to will result in any injury to either Wilkerson or McLaughlin. The expense of preserving the property and readvertising it for sale will be included in MieLaughlin’s cost bill and deducted from the proceeds of the sale; and, if after that is done there shall not be sul-ficient money remaining to satisfy Wilkerson’s judgment, then, and not until then, he may have a cause of action against appel-lees for their wrongful conduct in bringing about the delay which caused the additional expense. But if the property sells for enough to pay all the expenses and Wilkerson’s judgment debt, then the only person who would have any right to complain on account of the additional expense referred to would be John Cervenka, the judgment debtor. So, upon the whole case, we reach the conclusion that the judgment of the court below dismissing John Cervenka’s plea of intervention should remain undisturbed; but that, as between appellants and appel-lees, Stasny & Holub, the judgment against appellants on their cross-action should be affirmed, but that the judgment perpetuating the injunction should be set aside and judgment here rendered dissolving the injunction, and that appellees, Stasny & Holub, take nothing by their suit and pay all the costs of both courts, except those adjudged against intervener, John Cervenka.

Affirmed in part, and in part reversed and rendered.
      (§=>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    CURRIE v. GLASSCOCK COUNTY et al.
    (No. 547.)
    (Court of Civil Appeals of Texas. El Paso.
    March 2, 1916.
    Rehearing Denied March 16, 1916.)
    1. Highways ©=>41(3) — Laying Out of Highways — Disceiption.
    Under Rev. St. 1911, art. 6877, declaring that all roads ordered to be made shall be laid out by a jury of freeholders who may lay out, survey, and describe such road so that it can be traced with certainty, and the field notes of such survey or description of the road shall be included in the report of the jury, the jury’s report is sufficient where the road was laid out on the ground, and described with reference to a prior road, although its exact location on and along given surveys, was not included; the report not needing the accuracy required of a deed.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 113; Dee. Dig. ©=>41(3).]
    2. Appeal and Ereob ©=51062(2) — Juey Questions — Submission.
    Where there was no question but that the jury of freeholders which laid out a road complied with Rev. St. 1911,. art. 6863, requiring it to be the most direct and practicable route to the county seat of the adjoining county and verdict might have been directed against the plaintiff landowners, the refusal of the court to submit issues whether the road was a compliance of the statute was not error.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. § 4213; Dec. Dig. ©=> 1062(2).]
    3. Highways ©=>44(1) — Roads.
    Under Rev. St. 1911, art. 6863, declaring that commissioners’ courts shall lay out at least one first-class road from the county seats of their respective counties on the most direct and practicable route to the lines of. their coupty in the direction of the county seats of each adjacent county, but that this shall not be required where there already exists a sufficiency of public roads, a substantial compliance with the statute is all that is required, and the fact that a public road veered a few miles from the most direct route will not render the location improper.
    [Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 27, 137, 138, 140; Dec. Dig. ©=i 44(1).]
    Appeal from District Court, Glasscock County; JW. W. Beall, Judge.
    Action by Lucy Currie, individually and as executrix of the last will of James Currie, and as next friend of minors, against Glass-cock County and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    See, also, 179 S. W. 1095.

      Jas. T. Brooks, of Big Springs, and Royall G. Smith, of Colorado, Tex., for appellant. Morrison & Morrison, of Big Springs, for appellees.
   HARPER, C. J.

By this suit, Lucy Currie, individually, and as executrix and trustee under the last will of James Currie, deceased, and next friend of Stephen and William J. Currie, minors, seeks to enjoin the county judge and commissioners’ court of Glasscock ■county, Tex., from opening a first-class road ■60 feet wide through inclosed lands of plaintiffs. The petition alleges: That the jury of view arbitrarily and fraudulently laid out said road along a route known by them not to be the most direct and practicable route in the direction of the county seat of the adjacent county to the county line, as required by article 6863, Revised Civil Statutes of 1911, but bad laid out the road so as to meet at such county line a road laid out in Sterling county, without reference to whether such proposed road was the most direct and practicable route or not, and that the commissioners’ court had likewise fraudulently approved with full knowledge that said road did not meet the requirements of the statute aforesaid. That the road as run was not surveyed nor defined with any certainty, so for that reason it cannot be ascertained whether or not the lands described in the field notes are those embraced in the foad as brushed out, and that it is not known where any lines or corners of the surveys touched, crossed, or affected are. That it was laid out by guesswork, and for that reason its whereabouts on the ground is uncertain and indefinite. For a full statement of plaintiff’s pleading, see 179 S. W. 1095, opinion upon former appeal. Defendants filed general and special exceptions, general denial; specific admission and denials which are in any wise pertinent to the issues to be reviewed here are as follows: Deny that the road as laid out is not the most direct and practicable route to the county line, and specifically allege that it is the most direct and practicable route to the eastern line of Glasscock county, considering the topography of the country, and the further fact that it is laid out to meet the Sterling City Public Road which was already open to the line of Sterling and Glasscock counties. Say it is not true that the road was not surveyed nor defined with certainty, but that the lines are marked and evident and state the location so that it can be easily traced. Deny that they acted fraudulently or with any fraudulent intent, etc.

Findings of Facts.

On October 13, 1913, the commissioners’ court of the county entered an order appointing five freeholders a jury of view “to lay out and survey and describe a first-class road 60 feet wide from Garden City, county seat of Glasscock county, on the most direct and practicable route to the east line of said county, * * * to report in writing the field notes of such survey or description of the road so laid out, with such marks and other permanent natural objects that aid in defining the route so selected, so that the same can be traced with certainty, and make report to the next term of court.” The jury of view returned its report, as applicable here, as follows:

“We, the undersigned jurors, * * * did, * * * without a surveyor, proceed to lay out, and survey a new road, beginning at Garden City and terminating at the east line of Glasscock county in the direction of Sterling City in Sterling county * ⅜ * beginning at the southeast corner of the public square of Garden City; thence by reasonably definite calls ‘eastward’ and ‘southward’ to the gate into the inclosure of the plaintiff’s pasture.”

In this description reference is several times made to “a third-class road” heretofore laid out, opened up and heretofore in use, in pursuance of an order of the commissioners’ court of said county made and entered May, 1893, which said latter order was introduced in evidence by the plaintiffs, and which names certain sections by number over which the road was established. After reaching the line of plaintiff’s land, the description continues to call for the old third-class road, etc., names sections, gives direction and calls for stakes, rocks, hills, windmills, line cut through the brush, blazed trees, etc. The evidence of the jury of view shows clearly that they carefully did the work upon the ground, that they ran out the lines practically in accordance with the course and distance calls, and that they drove the stakes, marked the trees, cut the brush, and found along the line the objects called for, and that it is so marked as to be easily found upon the ground.

The first assignment urges that the court should have given a peremptory instruction because the uncontradicted evidence showed that neither the commissioners’ court nor the jury of view knew whether the road laid out upon the ground was embraced in the description filed and approved or not; therefore the order is void. The second proposition is that the report and order of confirmation must so describe the land to be condemned that it can be identified on the ground to the end that the road thus created may be kept within its bounds; if not, the proceedings are a nullity.

Article 6877, Rev. Stat. 1911, provides that:

“All roads hereafter ordered to be made shall be laid out by a jury of freeholders of the county to be appointed by the commissioners’ court * * * a majority of whom may proceed, with or without the county surveyor, as ordered by the commissioners’ court, to lay out, survey and describe such road to the greatest advantage to the public, and so that the same can be traced with certainty; and the field notes of such survey or description of the road shall be included in the report of the jury.”

As may be seen from the findings of facts above the description in the report follows the old third-class road, with specific reference to the report thereof upon the minutes of the court entered many years before this proceeding began; that the road as laid out was definitely fixed upon the ground by reference to stakes, trees, windmills, etc.; and further there is no doubt that its exact location upon the ground is in no way uncertain. But the exact contention of appellants in this case seems to be that the description in the report adopted must give its exact location on, along, and across given surveys, and that it must be known that it does so by the jury of freeholders and the commissioners’ court. The statutes do not require any such certainty of description. If plaintiff had shown that the written description or field notes filed and adopted did not fit the road as laid out, we would have a very different question. This they have not done»; but, on the other hand, the testimony of the witnesses show clearly that they have described the road as laid out. It is true that it may not be as specific as it might have been, but the very language of the statute quoted shows that it does not require the same accuracy of description as required even in deeds conveying lands. And it seems settled that mere deficiency or inaccuracy of description that is not substantial will not render void the proceeding establishing the road. Scaling v. Denny, 125 S. W. 351, and the cases there cited.

Appellants have other assignments charging error in the special issues submitted and error in refusing specials requested by them, all directed to the question of whether the charge was sufficient to submit the issues raised by the pleadings. If we concede that the court erred in refusing to give the special issues requested, nevertheless we think this cause should be affirmed, because a proper disposition has been made of the case.

Plaintiff’s case is based wholly upon the theory that the commissioners’ court and jury of freeholders have not complied with the provisions of article 6S63, Rev. Stat. 1911, under and by virtue of which they seek to take the land, and open up their pastures for a first-class road 60 feet wide, which reads:

“The commissioners’ courts of the several counties shall see that at least one first-class road of the width prescribed by law is laid out and opened from the county seats of their respective counties on the most direct and practicable route to the lines of their county in the direction of the county seats of each adjacent county, where no part of another county intervenes between the county seats of such counties; or, if a border county, to meet the nearest road to the border; and, if any adjacent county is not organized, then in the direction of the center of such county. And the commissioners’ court of a county to which one or more unorganized counties are attached for judicial purposes shall lay out and open at least two first-class roads sixty feet in width through the extent of each such unorganized county to intersect at right angles as nearly as may be at the center of the county, and to meet at the county lines similar roads of the adjacent counties. In counties now having public roads substantially complying with the preceding requirement as to course, the court shall be required only to give such roads the width of sixty feet and clear them of obstructions; such roads, however, shall not be laid out across orchards, yards, lots or graveyards, or within one hundred feet of a residence, without the consent of the owner; provided, that this law shall not apply to counties where there already exists a sufficiency of public roads.”

It will be seen, from the pleadings quoted, that plaintiff contends that this is the initial first-class road from the county seat of Glass-cock county to the county seat of Sterling county, and that, as such, it must be on the most direct and practicable route to the line of the respective counties in the direction of the county seats thereof. The charges given, of which complaint is made and the charges requested, which it is charged it was error to refuse, are proper submission of these questions or contentions, and they had not been included in the general charge; so, if, from the evidence, there was any question about whether the commissioners’ court has complied with the provisions of this statute, in the respect mentioned, in declaring and opening up this road, as a first-class county road, then the case should be reversed for another trial. But we think from all the evidence that there is no question that the road as laid out is the most direct and practicable route between the two county seats. On the other hand, if it is not, it is clear from the latter provision of the statute quoted that the Legislature did not intend to require such roads to be laid out exactly with the points of the compass. “In counties now having roads substantially complying with the preceding requirements as to course, the court shall be required to give such roads the width of sixty feet and clear them of obstructions.” But, on the other hand, that a substantial compliance therewith would be sufficient.

The fact that the road adopted crosses the county line to meet the road of the adjoining county, 16 miles from the starting point, county seat, and that the point where it crosses the county line is only 4 ½ miles from the point at which the most direct route would intersect said line, together with other facts in evidence as to the topography of the respective routes being in favor of the adopted road, conclusively shows that this road, as laid out, substantially complied with the provisions of the statute mentioned.

Therefore the trial court should have instructed a verdict for the defendants. Rule 62a (149 S. W. x).

For the reason given, the cause is affirmed.
      <§3aFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    INTERNATIONAL TRAVELERS’ ASS’N v. PETERSON.
    (No. 5563.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1916.
    On Motion for Rehearing, March 3, 1916.)
    On Motion for Rehearing.
    1. Judgment @=>138(1) — Defaults — Vacation-Diligence.
    Where the trial was not actually delayed, a default taken for defendant’s failure to file its answer within time should be set aside, it appearing that defendant’s counsel, who resided in another county than that of trial, mailed the answer to a local attorney, but by mistake misspelled his name, though the diligence was very slight.
    [Ed. Note. — For other cases, see Judgment, •Cent. Dig. §§ 249-251; Dec. Dig. @=»138(1).]
    2. Judgment @=>1'59 — Default—Vacation— Motion.
    Under Acts 33d Leg. c. 127, §§ 5, 6 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1829a, 1829b), a corporate defendant’.s motion to set aside its default for want of answer is sufficient, though the officer verifying it stated only that he believed the averments of the answer setting up the defense to be true and the sources of the belief were not given.
    [Ed. Note. — For other cases, see Judgment, 'Cent. Dig. J§ 310, 312, 313; Dec. Dig. @=>159.]
    3. Appeal and Error @=>548(4)— Record — Entries — Construction.
    Where the order overruling a motion to vacate a default recited that the court, having heard the motion read and argument of counsel •and fully understanding same, was of the opinion that the motion should be refused, there is a fair implication that no evidence was heard; .•so one appealing from the denial of the motion ¡need not show what evidence was heard.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2439; Dec. Dig. @=> 548(4).]
    4. Insurance @=p451(1) — Accident Insurance — Defenses. ■
    In an action on an accident policy which excepted injuries received while the insured was riding on a motorcycle, it is a good defense that the injuries were so received.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1171; Dec. Dig. @=>451(1).]
    Appeal from Travis County Court; Wm. Von Rosenberg, Judge.
    Action by G. L. Peterson against the International Travelers’ Association. From a judgment by default which the court refused to vacate, defendant appeals.
    Reversed and remanded.
    Seay & Seay, of Dallas, and White, Cart-ledge & Graves, of Austin, for appellant. Hart & Patterson and Houghton Brownlee, all of Austin, for appellee.
   KEY, C. J.

This is an appeal from a judgment rendered by default, and from the action of the trial court in refusing to set aside that judgment and award appellant a new trial. Appellant’s domicile-is in Dallas county, and the motion to set aside the default judgment, which was filed in time, states that appellant’s general attorneys in Dallas prepared an answer and forwarded it to Austin in time for it to have Been filed in the trial court; that the intention was to forward the answer to Ireland Graves, an attorney residing in Austin, who-, if he had received the answer, would have- filed it, and thereby prevented the rendition of the judgment by default. It is further stated in the motion that Attorney Ireland Graves has-been commonly known as Pat Graves, and that appellant’s counsel at Dallas- was not aware of the fact that such' was not Ms real-name, and that, while the- intention was- to address the envelope in which appellant’s answer was contained to Pat Graves, through inadvertence and mistake it was addressed! to-“Pat Greaves.” The motion set up other facts which- it is claimed show that appellant had a meritorious defense, which we- deem- it unnecessary to set out, as we- hold- that St is-not shown- that the court committed error, even though appellant had a- meritorious- defense-. The- motion is signed hy Seay & S'ea-y, of Dallas, Tex., and White;. Cartledfee- & Graves, of Austin, Tex., and: is verified! By Ireland Graves, who states that he is one of the- attorneys of record for the defendant, - and that the facts stated in paragraph 1 of the motion- are trae, and that each and! all of the facts stated in the motion are by Mm believed to- Be- true. The first paragraph- of the motion relates to the question of diligence, and does not set up or deal: with appellant’s defense to the appellee’s suit. At the same time that the motion referred' to-was filed' appellant filed an original answer, which alleges;, among other things, that the contract between appellant and appellee;, in effect, stipulated that appellant was: not to be liable on its obligation to pay aecidtent insurance when the injury resulted! while riding a motorcycle, and further alleges that appellee’s injuries were- sustained- while he was riding a motorcyele. The answer is sworn to- hy appellant’s secretary, who- merely states, as shown tey the officer’s jurat, “that he believes tbafc the facts set forth in. the above and foregoing answer are true.”’ There is no statement of facts or bills of exception showing what, if any, testimony was heard by the court in passing upon the motion to set aside the default judgment. On these facts we hold:

1. That the motion failed to show sufficient excuse for not filing an answer before the case was called on the appearance docket. It shows that, when the answer was returned to the Dallas attorneys by the postoffice authorities, those attorneys immediately communicated by telephone with Ireland Graves, thereby indicating that, if they had exercised as much diligence before the judgment referred to was rendered as they exercised when they ascertained that the answer had not been filed, that judgment would not have been rendered. The envelope which contained the answer is attached to appellant’s motion, and it shows in plain, typewritten words that it was addressed to “Pat Greaves," and the motion merely states that the name “Greaves” was used through inadvertence and mistake, and we regard that statement as too general. By whose inadvertence or mistake was a different name written from that of the Austin attorney? Was it a mistake made by a stenographer in failing to correctly take or transcribe dictation, or was it a mistake made by the attorney who prepared and forwarded the answer? If by the former, there might be some excuse, but, if by the latter, we fail to see why it should be excused as he knew the Austin attorney’s name was “Graves,” and not “Greaves.” Furthermore, it is made to appear that Mr. Graves, to whom it is said the answer was intended to be sent, is a member of a law firm in the capital of the state, and it is not shown that the sender of the document did not know that fact, and, if he did, it would not have been the exercise of proper care, even if he had directed it to Pat Graves. But, as a matter of fact, and as stated before, it was directed to a different name, and the direction contained no street or number nor anything indicating that the addressee was an attorney; and, considering these facts, and keeping in mind the fact that the answer could have been sent to the clerk of the court, and thereby have prevented the judgment by default, we hold that the motion failed to show sufficient diligence.

2. We also hold that the motion was not properly verified as regards the defense to the plaintiff’s cause of action. As to that branch of the case the jurat of the officer merely shows that Mr. Graves stated on oath that he believed the facts set up in that regard in the defendant’s answer were true, without even stating the source of his information; and, if the answer referred to can be looked to in aid of the motion, its verification is equally defective, as the secretary who swore to the answer merely stated that he believed the facts therein set forth to be true. It is one thing to swear that a fact exists, and another to swear that the affiant believes that it exists ; and while, in some instances, it may be permissible for an affiant to make an affidavit upon information and belief, giving the source of information, even that was not done in this case. Some of the facts set up in appellant’s answer, if true, must have been known to its secretary, and therefore he could have sworn positively to such facts.

3. We are inclined to the view that appellant should have made it appear, by bill of exception or otherwise, that the court heard no other testimony in passing upon the motion, though it is not necessary to decide that question. It may have been shown by clear and undisputed proof that appellee was not riding a motorcycle at the time that he was injured, and therefore the trial court may have concluded that appellant was not entitled to have the case reopened, when it was certain that it did not have a meritorious defense.

Judgment affirmed.

On Motion for Rehearing.

Upon further consideration of this case on motion for rehearing we have reached the conclusion that this court fell into error in affirming the judgment, and that a rehearing should be granted, the judgment reversed, and the cause remanded for a further trial. In Dowell v. Winters, 20 Tex. 794, in considering the question of diligence in cases of this sort, our Supreme Court announced and applied the following rule:

“But, where the trial has not been delayed, and there is an affidavit of merits, we think the default should be set aside, and the answer received, upon some showing by way of excuse for the failure to plead in time. The excuse proffered in this case was certainly very slight. But it appears that the counsel acted under a mistake of law. Both counsel and client appear finally to have done their best to make amends; they present what seems to be a strong case of merits; and there is reasdh to apprehend that, if not allowed to make defense, irreparable injury may be the consequence. For, having no such excuse for not having made his defense to the action as a court of equity would deem sufficient, the defendant may not be entitled to an injunction to stay execution upon the judgment, until he shall have established his cross-demands against the plaintiff in another suit. It does not appear that the trial would have been delayed; the plaintiff would not have been injured or hindered by reason of the default; and, on the whole, we conclude that the court ought, under the circumstances, to have set aside the judgment by default, upon the payment of costs, and permitted the defendant to answer to the merits of the action, and that the court erred in refusing it.”

Tested by the rule of diligence there prescribed, we have reached the conclusion that appellant’s motion in the court below to set aside the judgment by default disclosed sufficient diligence.

Upon the second point decided against appellant, relating to the verification of the motion to set aside the judgment by default, we have reached the conclusion that, inasmuch as the verification was in compliance with the act of 1913 (Acts 33d Leg. c. 127, §§ 5, 6 [Vernon’s Say Ies’ Ann. Giv. St. 1914, arts. 1829a, 1829b]), which was then in force regulating practice, it was sufficient.

As to the other point, to the effect that it is not shown what, if any, evidence was heard by the court below when it considered the motion to set aside the default judgment, we are not prepared to hold that it was incumbent upon the appellant to make any showing in that regard.

However, it is not necessary to decide that point, as the record indicates, with reasonable certainty, that nothing outside of the motion was considered by the court. The order overruling the motion recites:

“And the court, having heard said motion read, and the argument of counsel thereon, and fully understanding same, is of the opinion that said motion should be refused.”

A fair implication from the recital quoted justifies the conclusion that nothing but the motion and the argument of counsel thereon were presented to or considered by the trial court when the motion was disposed of.

In deciding the case before we did not find it necessary and did not pass upon the question as to whether the motion to set aside the default judgment, in connection with the answer filed at the same time, showed a meritorious defense. Having decided to change our former rulings upon the other questions, it has become necessary for us to consider the latter question, which has been done, and the conclusion reached that the motion and answer show a meritorious defense, which, briefly stated, is that, by the terms of the contract of insurance, it was stipulated that appellant was not to be liable if at the time of appellee’s injury he was riding a motorcycle, and appellant alleged that he was so doing at the time in question. We do not agree with appellee’s construction of the contract; but, on the contrary, hold that it exempts appellant from liability if appellee was riding a motorcycle at the time of his injury.

Eor the reasons stated, appellant’s motion for rehearing is granted, the former judgment of this court is set aside, and the judgment of the trial court is reversed, and the cause remanded for further proceedings consistent with this opinion.

Rehearing granted. Reversed and remanded.

MEMORANDUM DECISIONS
      ®^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    CUTBIRTH v. STATE.
    (No. 3937.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.
    Rehearing Denied March 29, 1916.)
    Appeal from Criminal Court, Taylor County; Thomas L. Blanton, Judge. Purna Cutbirth was con- and he
    Affirmed.
    See, also, 174 S. W. 1066.
    J. M. Wagstaff and S. P. both of for
    O. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of

perjury; his punishment being assessed at two years’ confinement in the penitentiary. This is a companion case to Reed v. State, 183 S. W. 1168, this day decided, in an opinion by Judge Harper, cause No. 3938. The questions are, it may be stated, the same in both cases, except perhaps one question in the Reed Case not in this case. Inasmuch as the Reed Case has been affirmed, it would serve no practical purpose to write an extended opinion in this case. Upon the authority of that case the judgment herein will be affirmed.


author: PRENDERGAST, P. J.

text:
    HALL v. STATE.
    (No. 3976.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Norman H. Hall was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal

a conviction, and a statement of facts or bills of exceptions. In the absence of these, nothing is presented which can be reviewed. The judgment is therefore affirmed.


text:
    McCLEARY v. STATE.
    (No. 3960.)
    (Court of Criminal Appeals of Texas.
    Feb. 23, 1916.)
    Appeal from District Court, Red River County; W. F. Moore, Special Judge. Will McCleary was convicted of crime, and he appeals.
    Affirmed.
    C. G. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This record is before us, without bill of exceptions or statement of facts, under a plea of guilty. The judgment seems to be in proper form under the statute authorizing a plea of guilty in felony cases, following all provisions therein set out. As the record is presented to us, we find no question for review or discussion. The judgment therefore will be affirmed.


text:
    PAYNE v. STATE.
    (No. 3977.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Jesse Payne was convicted of burglary, and he appeals.
    Affirmed.
    C. C, McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction of burglary, with the lowest penalty assessed, without a statement of facts or a bill of exceptions. There is nothing raised, in the absence of these, which we can review. The judgment is therefore affirmed.


author: HARPER, J.

text:
    WILEY v. STATE.
    (No. 3978.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Rip Wiley was convicted, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary. As no. statement of facts accompanies the record, and the record contains no bill of exceptions, there is no question presented in the motion for a new trial we can review. The judgment is affirmed.


author: F,LY, C. J.

text:
    MATLOCK et al. v. McGREGOR.
    (No. 5617.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 23, 1916.
    Rehearing Denied March 22, 1916.)
    Appeal from District Court, Bexar County; W. F. Ezell, Judge. Action by J. D. McGregor against A. L. Matlock and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    A. L. Matlock, of San An-for
   F,LY, C. J.

This is a suit instituted by ap-pellee on a promissory note for $900 against A. L. Matlock, Harry Hyman, Charles G. Johnson, C. H. Moore, and D. R. Scrivener. The case was submitted to the court without a jury, and judgment was rendered in favor of appellee for $1,096.92, with interest at 8 per cent, from date of judgment. Judgment was by default as to Moore and Scrivener. There is no statement of facts. The only point made in appellants’ brief is that the record failed to show that either Moore or Scrivener had been cited, and that therefore the judgment should be reversed. Since the brief was filed a supplemental transcript, agreed to by appellants, has been filed, which shows that C. H. Moore and D. R. Scrivener were duly cited. The judgment is affirmed. . ...