author: CONLEY, C. J.

text:
    TEAL et al. v. LAKEY.
    (No. 39.)

    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Pleading <@=>271 — Answer—'Verification —Amendment.
    Where plaintiff moved for judgment on the pleadings because the answer had not been verified, the court may properly allow the answer to be verified by way of amendment and then deny the motion.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 819; Dec. Dig. <§¿=>271.]
    2. Pleading <@=>345 — Judgment on Pleadings.
    Where the complaint seeking partition set forth plaintiff’s chain of title, the answer which, while admitting that plaintiff was the heir of the deceased owner of the property, averred that the owner made a partition during her lifetime, and that plaintiff received other lands and was not entitled to share in the property claimed, is a sufficient denial of the averments of the complaint to preclude judgment on the pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1055-1059; Dec. Dig. <@=>345.]
    3. Teial <@=>403 — Findings ox Facts and Conclusions ox Law — Filing.
    Where plaintiff requested written findings of fact and conclusions of law, and the same, being prepared by defendant and signed by the judge, were presented to plaintiff’s counsel within the time allowed, plaintiff’s counsel, having neglected to file them with the clerk according to the custom, cannot complain that they were not filed in time.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 913, 954-956; Dec. Dig. <@=>403.]
    4. Descent and Distbibution <@=^93 — Adv an cement — Expect.
    Where a landowner distributed her property before her death among her children, and plaintiff received and accepted her share, the transaction was an advancement, and plaintiff could not thereafter claim a share in the remaining property.
    [Ed. Note. — For other cases, see Descent and Distribution, Cent. Dig. § 889: Dec. Dig. <®=> 98.]
    Appeal from District Court, I-Xardin. County; J. Llewellyn, Judge.
    Action by Teresa Ann Teal and husband against S. F. Lakey. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    B. L. Aycoclc and A. M. Hill, both of Kountz, for appellants. Coe & Cóe and Singleton & Nall, all of Kountz, for appellee.

       Application lor writ of error pending in Supreme Court.

   CONLEY, C. J.

This was a suit by the appellant Teresa Ann Teal, who was joined pro forma by her husband, William Teal, against S. F. Lakey, to recover the possession of and to partition an alleged undivided one-fifth interest out of 32 acres of land, a part of the Winnie Robinson 100-acre homestead tract in the Alfred Ellis league, in Hardin county, Tex. The case was tried by the court, without the intervention of a jury, and a judgment rendered that the plaintiff take nothing, and refusing partition of the land, from which judgment plaintiff below perfected an appeal.

Appellant’s first assignment of error attacks the judgment of the court in not rendering judgment for the plaintiff on the pleadings in response to her request made in the court below, on account of defendant’s answer not having been verified in accordance with the statute. When this request was made by the appellant, defendant asked permission of the court to amend the answer by verifying it under oath, and, the court having granted such permission, the answer was amended accordingly. There is no merit in this assignment of error, and it is overruled.

Appellant’s second assignment of error attacks the action of the court in refusing her request below to render judgment on the pleadings by confession as to paragraphs 2, 3, 4, and 6 of the amended petition, because the defendant in his answer had not denied the allegations therein contained. Paragraph 2 of the amended original petition describes the land. There is no issue of dispute of any kind arising on the description of the land. Paragraph 3 'undertakes to plead plaintiff’s title. It, in substance, alleges that Winnie Robinson, the mother of appellant, died in February, 1909, leaving five children, and that plaintiff inherited a one-fifth interest, and the other interests of the other heirs plaintiff alleges upon information and belief to have been acquired by the defendant. Paragraph 4 describes the improvements, and states the value of the land and such improvements. Paragraph 6 states the rental value of the land, and that the defendant has had the exclusive use and benefit of same. Paragraph 6 alleges, in substance, that defendant refused to make partition, and that she believes partition can be had without the intervention of commissioners.

An inspection of defendant’s answer shows that in paragraph 3 it is alleged:

“That it was not guilty of the wrongs, injuries, and trespasses complained of it in the petition filed by the said plaintiff against him, and of this he puts himself upon the country.”

Paragraph 4 of the answer makes the following allegation:

“And further answering this defendant says that it is not true, as alleged by said plaintiff, that the said Teresa Ann Teal is the owner of one-fifth or any other part of the land and premises described in said petition, as an heir of her mother, Winnie Robinson, deceased. But' this defendant alleges the fact to be that in her lifetime the said Winnie Robinson, a feme sole, owned in her own right 160 acres of land, a part of the Alfred Ellis league in Hardin county, Tex., known as the Winnie Robinson 160-acre survey; and that the said Winnie Robinson, about 1902, decided to partition said land among her five children, and to this end caused said 160 acres of land to be surveyed and subdivided into five parts, consisting of 32 acres each, for the purposes of partition; and that in pursuance of such purpose, the said Winnie Robinson, on the 18th day of June, 1902, executed and delivered to the plaintiffs a general warranty deed to 32 acres of land, which the said Teresa Ann Teal, a daughter and heir of said Winnie Robinson, received and accepted as her full share and interest in said 160 acres of land; that in said deed there is expressed a cash consideration of $100, cash in hand paid for the land, and this defendant avers that said consideration so expressed in said deed was not and is not the true consideration for the execution and delivery of said deed; that no money or other consideration was paid by said plaintiff for said land, but that the same was so conveyed to them by the said Winnie Robinson for the purpose of partition and for no other purpose; and so defendant alleges that by reason of the premises, and in accepting said deed, the said Teresa Ann Teal is estopped to claim any other or further interest in said land, and especially that portion thereof now owned and occupied by this defendant, and described in plaintiff’s said petition.”

We find no error in the court’s ruling on these matters, and the second assignment is therefore overruled.

Appellant’s third assignment of error attacks the failure of the court to file its findings of fact and conclusions of law within the time required by statute.

It appears from the record that judgment in this case was entered on the 21st day of April, 1915. On April 30, 1915, plaintiff filed request for such findings of fact and conclusions of law. The court adjourned on April 30, 1915. There are no findings of fact and conclusions of law regularly in the record, but the court attaches the same to plaintiff’s bill of exception No. 2, under a qualification and explanation he made in approving said bill.

Plaintiff’s bill, together with the court’s qualification thereon, is as follows:

“Be it remembered that after the court overruled the plaintiff’s motion for new trial and to set aside the judgment on the day of adjournment of court, to wit, April 30, 1915, which being overruled, the plaintiff requested the court by written motion to file the conclusions of fact and of law on which the judgment was based, and which motion was duly granted, and now on the 11th day of May, 1915, no findings of fact and conclusions of law haying been filed in the cause, and, the clerk having so certified in taking up the matter of making out a transcript, plaintiffs pray the court to grant this bill of exception to such failure to file such paper in the record, and the bill is granted and the clerk ordered to file this bill in the record.
“[Signed] J. Llewellyn, Judge Presiding.
“This is to certify that no findings of fact and conclusions of law appear to have been filed in the above styled and numbered cause on the 11th day of May, 1915.
“W. G. Woodard, District
Clerk,
“[Seal.] Hardin County, Texas.
“The above bill is qualified as follows:
“I requested defendant’s counsel to prepare for me the findings of fact and conclusions in question. This was done, and I adopted and signed the findings and conclusions as prepared, which are attached to and made a part of this bill. This paper was returned to Mr. T. B. Coe, of counsel for defendant, who caused same to be handed on the same day, so he states, to Hon. B. L. Aycoek, of counsel for plaintiffs. This occurred less than ten days after adjournment of court, some four or five days after adjournment, according to statement of Mr. Aycoek.”

There appears in the record an affidavit of appellant’s counsel, in which he admits the statement, made by the court in qualifying the bill, but says he mistook the instrument which was given him to be a copy and not the original instrument, and that he did not discover it was the original instrument until after ten days had expired in which it should have been filed under the law.

We are at a loss to understand why appellant’s counsel or the court, under such circumstances, should be charged with the mistake of appellant’s counsel in not discovering that the instrument given him was the original findings of fact and conclusions of law. It is the universal custom for the court to sign the findings of fact and conclusions of law, and then either to personally deliver the same to counsel for the party requesting the same, or to send them to him, and he then in turn, after an examination, files them with the clerk or makes further request to the court on the subject-matter.

To allow this assignment of error would in substance be permitting appellant to take advantage of his own delinquency, and this the court does not feel justified in doing. The third assignment of error is therefore overruled, and the court will consider the findings of fact and conclusions of law. They are as follows:

“Bindings of Fact.
“(1) I find that Winnie Robinson, who died in 1909, left surviving her the plaintiff Teresa Ann Teal, a daughter, Mrs. Franklin, her daughter, W. N. Robinson, a son, the several Reed children of a deceased daughter, and-Word, a grandson, as her heirs.
“(2) That prior to her death the said Winnie Robinson, who owned 160 acres of land in Hardin county, Tex., on which she resided, as a homestead, had deeded to the plaintiff Teresa Ann Teal 32 acres of said 160-aere tract as the distributive share of the said Teresa Ann Teal of said 160 acres of land, and that said Teresa Ann Teal accepted the deed to the said 32 acres of land and went upon the land and has resided there ever since.
“(3) That while the deed to said Teresa Ann Teal recited a cash consideration of $100, that in fact nothing was paid by said Teresa Ann Teal for said land, but the same was given to her by her said mother and accepted by her as her expected share of real estate then vested in her said mother.
“(4) I find that the 32 acres described in plaintiff’s petition, and which she seeks to have partitioned between herself and defendant, was the 32 acres intended by the said Winnie Robinson to go to her daughter Mrs. Franklin, and which has since the death of said Winnie Robinson been treated by all the heirs except Teresa Ann Teal as the property of Mrs. Franklin.
“(5) I find that said Teresa Ann Teal has no interest in the 32 acres described in her petition, having before the death of her mother received her full share of real estate belonging to her said mother.
“Conclusions of Law.
“Upon the foregoing findings of fact I conclude that the plaintiffs in this suit are not entitled to recover anything and are liable for the costs incurred in this action and have given judgment accordingly.”

Appellant attacks the conclusion of the court, and insists that the doctrine of estoppel against a married woman is no defense of appellant’s suit, and that the findings show that the judgment of the court is erroneous, in that it is based on a parol will of Winnie Robinson.

In this case the court found — and there is no objection to such finding upon the part of the appellant — that the property she acquired from her mother under the deed mentioned was in truth not a purchase, but her share of the 160-acre tract given to her by her mother in furtherance of a purpose to settle and partition the estate among her children, and was accepted by her as such. Under such circumstances, she is not entitled to any other interest in the 160 acres. This was an advancement. Holliday v. White, 33 Tex. 448.

The third assignment is therefore overruled, and the judgment of the trial court is affirmed.

Affirmed.
      <gz=oFor other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. TROCHTA et al.
    (No. 5529.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 8, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Railroads <§==>316 — Crossing Accident— Speed oe Train — Negligence.
    Running a passenger train at the rate, of 30 to 35 miles an hour does not constitute negligence per se.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1006-1008, 1011, 1012; Dec. Dig. <§=>316.]
    2. Railroads <§=>314 — Highway Crossing— Trees Obstructing View — Negligence.
    Where trees grew so thickly on defendant railroad’s right of way at a highway crossing! as to obscure the view of approaching trains by travelers, defendant was not guilty of negligence by permitting such obscuration where all the trees except two small ones, which in themselves would not obscure the view, grew on the land of another adjoining the right of way, since defendant had no right to remove the trees from such adjacent land.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 965; Dec. Dig. @=>314.]
    3. Railroads @=>320 — Highway Crossing— Avoiding Collision — Choice oe Mehiods —Negligence.
    Where the engineer of defendant’s train saw deceased driving upon a highway crossing while the engine was 100 yards- distant, and was compelled, in order to make the best effort to avoid a collision, to choose instantly, without time to reason as to which was the better method, between reversing the engine under the emergency brake and with sanded track, or blowing the whistle to warn deceased, who probably could have stopped his team short of the track, the engineer being unable to do both, his conduct in choosing the method of attempting to check the train was not negligence, though the event showed that he chose the less efficient method.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1014-1016, 1019; Dec. Dig. @=> 320.]
    4. Railroads @=>328 — Highway Crossing— Collision — Contributory Negligence.
    Where deceased drove his wagon onto defendant’s railroad track at a highway crossing without looking or listening, when an approaching train was about 100 yards distant, he being familiar with the crossing by having driven over it frequently for 13 years, his wagon being empty and making considerable noise at the time, the effect of which as drowning the noise of the train he could have obviated by stopping and listening before going on the crossing, and though the view of the track was obscured at one point, he could have seen an approaching train for long distances from other points in his line of approach, the accident happening in daylight, and he having no reason to suppose that a train would not cross at the time and place in question, he was guilty of contributors' negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1057-1070; Dec. Dig. @=>328.]
    Appeal from District. Court, Williamson County; C. A. Wilcox, Judge.

    Action by Marie Trochta and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment.for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Wilcox & Graves, of Georgetown, and Spell & Sanford, of Waco-, for appellant. A. B. Wood, of Granger, and Bryan, Stone & Wade, of Ft. Worth, for appellees.
   Findings of Fact.

JENKINS, J.

This is a suit to recover damages on account of the death of Jos. Trochta, occasioned by the alleged negligence of appellant. The case 'was submitted to- the jury upon special issues, which, together with the jury’s answers, are as follows:

“Question No. 1. On the 13th day of August, 1913, as the defendant’s west-bound passenger train was approaching the public road crossing where the said Joseph Trochta was killed, did the engineer in charge of said engine cause the whistle on the engine to be sounded at least eighty rods before reaching said crossing? A. No.
“Question No. 2. If you have answered the foregoing question in the negative, then answer this question: Was the failure (if any) to sound said whistle the direct cause of the collision, and consequent death of said Trochta? A. Tes.
“Question No. 3. Upon said occasion did the employes in charge of said engine ring the bell upon said engine from a point at least 89 rods from said crossing continuously until such crossing was reached? A. Tes.
“Question No. 4. If you have answered the preceding question in the negative, then answer this question: Was the failure (if any) to ringr said bell the direct cause of the collision, and consequent death of said Trochta? No answer.
“Question No. 5. Upon said occasion, as said train was approaching said crossing, was said train running at an unreasonable and dangerous rate of speed? A. Tes.
“Question No. 6. If you answer the preceding question in the affirmative, then state whether the running of said train at such rate of speed (if it was so run) constituted negligence on the part of the defendant, as the term- negligence has been hereinabove defined? A. Tes.
“Question No. 7. If you have answered the two preceding questions in the affirmative, then answer this question: Was the speed of said train the direct cause of the collision, and consequent death of said Trochta? A. Tes.
“Question No-. 8. Prior to and at the time of the death of the said Trochta, did the defendant permit branches of trees growing upon the right of way to extend over the north boundary line of its right of way, and east of the crossing? A. Tes.
“Question No. 9. If you have answered the preceding question in the affirmative, then answer this question: Did the permitting of branches of such trees to extend over the right of way constitute negligence on the part of the defendant? A. Tes.
“Question No. 10. If you have answered the two preceding questions in the affirmative, then answer this question: Was the fact (if it was a fact) that branches of trees extended over the right of way of the defendant the direct cause of the collision, and subsequent death of said Trochta? A. Tes.
“Question No. 11. Did the employes in charge of the engine drawing said train, when said engine was within about 100 yards of said crossing, see the said Trochta driving upon said crossing? A. Tes.
“Question No. 12. If you have answered the preceding question in the affirmative, then did the engineer in charge of said engine realize the danger of said Trochta? A. Tes.
“Question No. 13. If you have answered the two preceding questions in the affirmative, then answer this question: Was the engineer in charge of said engine guilty of negligence in failing to sound the whistle of said engine upon said discovery of said Trochta’s position? A. Tes.
“Question No. 14. Was the failure of the engineer to sound said whistle at such time the direct cause of the collision, and consequent death of said Trochta? A. Tes.
“Question No. 15. If you have answered question No. 11 in the negative, then answer this question: Were the employes in charge of said engine guilty of negligence in failing (if they did fail) to see said Trochta while said engine was at a point about 100 yards east of the crossing? No answer.
“Question No.' 16. If you have answered the preceding question in the affirmative, then answer this question: Was the failure (if any) of the employes in charge of said engine to see said Trochta at a point 100 yards east of said crossing the direct cause of the collision, and consequent death, of the said-Trochta? No answer.
“Question No. 17. Tou are instructed that if, under the law and the facts of this case, the plaintiff should be entitled to recover damages against the defendant company, then the measure of such damages would be such sum as, if paid to them in cash at this time, would reasonably compensate them for the pecuniary loss (if any) which the said plaintiffs have sustained by reason of the death of said Trochta; and, in assessing the damages (if any) to which said Franciska Trochta would be entitled, you should take into consideration the reasonable pecuniary value (if any) of the nurture, care, and admonition which the said Franciska Trochta would have received from her father during her minority, had he lived. But you are further instructed that in assessing such damages you cannot take into consideration any grief or sorrow on account of the death of said Joseph Trochta, or loss of his society, affection, or companionship. You are further instructed that you will apportion the damages (if any) between the plaintiffs Marie and Franciska Trochta in such proportions as you may find to be just and fair. Now, bearing in mind the above instructions, you will answer these questions: (a) What amount of pecuniary loss (if any) has been sustained by the plaintiff Mrs. Marie Trochta by reason of the death of the said Joseph Trochta? A. $4,-000. (b) What amount of pecuniary loss (if any) has been sustained by the plaintiff Fran-ciska Trochta by reason of the death of the said Joseph Trochta? A. $3,000.
“Question No. 18. Did the said Joseph Trochta before driving u;pon the crossing, upon the occasion of the collision with said train, look or listen or do any act in order to discover whether or not the train was approaching said crossing? A. No.
“Question No. 19. If you have answered the preceding question in the negative, then answer this question: Did the failure of said Trochta to endeavor to discover whether or not a train was approaching said crossing (if he did so fail) constitute negligence on the part of said Trochta? A. No.
“Question No. 20. If you have answered the preceding question in the affirmative, then state whether such negligence (if any) on the part of said Trochta caused or assisted in causing the collision which resulted in his death? Not answered.”

The evidence is sufficient to sustain the findings of the jury as to questions Nos. 1, 2, 3, 7, 8, 11, 12, 17, and 18, and we adopt said questions and answers as our findings of fact herein. Our reasons for not adopting the remaining questions and answers will be stated in the opinion herein.

Opinion.

The uncontradicted evidence as to speed was that the train was running some 30 to 35 miles an hour, and that such was its usual speed at that place. The fact that a passenger train was running at the rate of 30 to 35 miles an hour does not constitute negligence per se. The statute does not prescribe the speed at which trains shall be operated. McDonald v. Railway Co., 86 Tex. 7, 22 S. W. 939, 40 Am. St. Rep. 803. If the train in question was being operated at a dangerous speed .at the time of the injury, it was by reason of the conditions there existing, viz., that it was a public road crossing, and that the train was partially hid by trees and brush from those who were traveling upon the public road. Railway Co. v. Rogers, 91 Tex. 56, 40 S. W. 956. We do not think that the evidence upon this point is sufficient to sustain the finding of the jury, even though it be conceded that question No. 7, was correctly answered.

The evidence shows that appellant permitted one or two small trees to grow up in its right of way, but these would not have prevented the train approaching the crossing being plainly seen from the public road. There were, however, trees growing upon the land adjoining appellant’s right of way, which did, to a considerable extent, prevent the train from being seen from the public road. It cannot be said that appellant “permitted” these trees to grow at such place, for the reason that they were not upon the land of appellant, and it had no right to remove the same. Therefore we do not consider that the evidence is sufficient to sustain the jury’s answer to questions Nos. 9 and 10.

The reply to issue No. 13 presents a serious question. The undisputed evidence is that the engineer discovered the deceased when the engine was at a distance of about 100 yards from the crossing; that the deceased was then upon the right of way, driving his team in a trot, with the heads of the mules some 15 or 20 feet from the track, he himself being upon the spring seat, some 15 feet behind the heads of the mules. At the instant before this his team was traveling in a slow trot, but shortly after entering upon the right of way his mules increased their speed, whether because deceased urged them forward, or for some other reason, does not appear. The deceased was looking neither to the right nor to the left, but straight ahead, and the engineer realized that he would not probably stop his team before the engine arrived at the crossing. Hie was going upgrade to the crossing of from 4% to 5 feet from the edge of the right of way to the crossing, and, had he at this time seen the train approaching and realized his danger, it is probable that he could have stopped his team in time to avoid the collision. From these facts it is evident that the jury concluded that, had the engineer sounded the whistle at the time he discovered the deceased, the deceased would have seen the train and stopped his team. This may or may not have been the case, depending upon whether the impulse of the deceased in such case would have been to avoid the danger by stopping his team or urging it forward so as to cross the track before the engine could reach the crossing. The undisputed evidence shows that the engineer immediately upon discovering the peril of deceased, reversed his engine, applied the emergency brakes and sanded the track, which was the proper thing to do in order to slow up the train, and all that he could do to accomplish this end. The engineer testified that upon seeing the dangerous position of deceased his instinctive impulse was to slow up the train, in order to give the deceased -an opportunity, if possible, to cross the track before the train reached him, feeling that this was his only recourse to save the deceased from injury. He did all that he could to slow up the train. He could not have taken means to check the speed of the train and at the same time have blown the whistle, as it required the use of both hands and immediate action in order to reduce the speed of the train. Using the necessary means to slow up the train, he had no time to blow the whistle. Had he blown the whistle, he would have had no time to use the means necessary to lessen the speed of the train. The evidence shows that he was mistaken in supposing that by using every means in his power to lessen the speed of the train the deceased would cross the track in safety. Had he blown the whistle, it is possible, and we may concede (and in deference to the findings of the jury do concede) that it is prob: able, that the deceased would have cheeked his team and thus avoided the collision; but the question is, if the engineer took such means as to a very cautious man might have seemed the most proper under the circumstances to avoid the injury, is his employer to be held responsible for his mistake? In Railway Co. v. Brooks, 132 S. W. 98, this court said:

“The principal legal question involved in this ease is as to whether the deceased, in attempting to remove the hand car in order to prevent the passenger train from being wrecked, was bound to exercise that degree of care for his own safety that would be exercised by an ordinarily prudent man in the ordinary affairs of life. This question was so fully considered, and the law in such case was so clearly stated, in the able opinion by the late Chief Justice of this court in case of Railway Co. v. McVey, 81 S. W. 998, that we deem it unnecessary to do more than to refer to that case for our views on this subject. The cases cited by Judge Eish- or in that ease, as well as many others that we have examined, fully sustain the text of that decision. Upon the authority of that case and the numerous decisions sustaining the same, we hold that where a party has not, by his own negligence, produced the situation which endangers the lives of others, he is justifiable in exposing himself to danger which must be apparent to him as a reasonable man, in order to save the lives of such others, and that in so doing, if his conduct is not rash or reckless, he will not be guilty of contributory negligence.”

The facts in this case are the reverse of those stated in the Brooks Case, supra; that is to say, the engineer was not himself endangered by reason of his alleged negligent acts, but the injury occurred to another. However, we think the principle announced in that case is applicable here. If the engineer did what to a prudent man would have seemed reasonable in order to save the life of the deceased, he being compelled to choose his line of action upon the instant and almost, as it were, by instinct, without time to reason as to the comparative safety of two methods open to him, we do not'think that bécause the subsequent event may show that he made a mistake as to the most efficient method of avoiding the danger he was thereby guilty of negligence.

The jury found that the deceased, before driving upon the crossing, did not look or listen or do any act in order to discover whether or not the train was approaching the crossing, and the evidence fully sustains this finding? but they further found, in answer to question 19, that the failure of the deceased to endeavor to discover whether or not a train was approaching the crossing did not constitute negligence upon his part. This inference of the jury from the facts found is not justifiable. The deceased had been in the habit of traveling this road from one to three times a week for thirteen years, and knew that the road crossed the railroad track at the point of collision. It does not appear that he had any reason to suppose that a train would not cross the road at that place at that time. It does not appear that he could not have se.en the train, notwithstanding the timber, at some point within a reasonable distance of the crossing. His wagon was empty and was making considerable noise, which perhaps prevented his hearing the noise of the approaching train;' but, had he stopped his team before entering upon the right of way and listened, it is evident that he could have heard such noise. The noise of the approaching train was heard by Wilson, who was working in the adjoining field and near the public road, at about the same time that he heard the noise of the wagon, at which time the deceased was some 40 yards from the right of way. It occurs to us that a reasonably prudent man, in approaching a railway crossing at such place as that an approaching train could not be seen, would listen for such train; and, if Ms wagon was making so much noise that he could not hear the noise of an approaching train, that he would be aware of this fact and would stop Ms team. However this may be, the undisputed evidence shows that when the deceased reached the line of the right of way, 50 feet distant from the railroad track, he could have seen the approaching train at a distance of 194 yards; and when he had advanced 15 feet further, which would still have been in time for him to have stopped his team, he could, if .he had looked, have seen the approaching train at a distance of more than half a mile. The train at this time was in fact within about 100 yards of him. The collision occurred in the daytime, at about 3 p. m.

From these facts we conclude that the deceased was guilty of contributory negligence in driving upon the railroad track without looking or listening, or doing any other act in order to discover whether or not the train was approaching the crossing.

Although the appellant may have been guilty of negligence by reason of any of the facts found by the jury, if the deceased was guilty of negligence in failing to discover the approaching train, and if such negligence was a proximate cause of his injury, the appellees cannot recover, except upon the doctrine of discovered peril. Railway Co. v. Kutac, 72 Tex. 643, 11 S. W. 127; Railway Co. v. Dean, 76 Tex. 74, 13 S. W. 45; Railway Co. v. Fuller, 5 Tex. Civ. App. 660, 24 S. W. 1091.

For the reasons stated, tlie judgment of the trial court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.
      ^=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: WILLSON, C. J.

text:
    PIERSON et al. v. BEARD et al.
    (No. 1524.)

    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 9, 1915.
    Rehearing Denied Dec. 23, 1915.)
    1. Process @==>4)5 — Service—Citation.
    Where the original writ is returned unserv-ed, an. alias writ may, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1866, declaring that, where any process shall have been returned or shall have been returned without service, it shall be the duty of the clerk to issue other process directed to the sheriff or other officer of the same or any other county, be issued to the sheriff of another county for service on the defendants without any amendment of the allegations of the petition as to their residence.
    [Ed. Note. — For other eases, see Process, Cent. Dig. §§ 42-45; Dec. Dig. <§=345.]
    2. Appeal and Error <§=914t — Review—Presumptions.
    An appellant has the burden of showing error; therefore, where it appeared that defendants were served in a county other than that alleged to be the county of their residence, it will, the record showing nothing to the contrary, be presumed that the original citation was returned unserved, and that an alias writ was issued.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3693-3698; Dee. Dig. <§= 914.]
    3. Husband and Wipe <§=68 — Liability oe Wipe — Contracts.
    Land subject to a vendor’s lien was conveyed to the principal defendant, who assumed payment of the vendor’s lien notes. Such defendant conveyed to a third person who assumed payment, and such person conveyed half of the property to the principal defendant’s wife who also assumed payment. It did not appear that such debts were contracted for the benefit of the covert defendant’s separate estate. Held, that she was not personally liable on her agreement to assume the debt.
    [Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 290-293, 343; Dec. Dig. <§¿=68.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by P. O. Beard and others against L. B. Pierson and others. From a judgment for plaintiffs, defendants appeal.
    Reformed and affirmed.
    February 23, 1911, D. C. Graver sold and conveyed certain land in Harrison county to appellees E. Thadd Post, H. L. Ferguson, and R. L. George, -who, in payment therefor, executed and delivered' to him their two promissory notes, dated said February 23, 1911, for $829.33 each, payable to said Craver’s order, one in one and the other in three years after its date. To secure the payment of the notes a vendor’s lien was expressly retained on the land. Afterward it (the land) was conveyed by the grantees in the deed and their vendees to appellant L. B. Pierson, who assumed the payment of the notes, and he conveyed it to appellant Sylvia White, who assumed the payment thereof. She then conveyed an undivided one-half interest in the land to appellant Selma Pierson, who assumed the payment of one-half the amount due on the notes. This suit was brought by appellee Beard, as the owner and holder of the notes, against said appellees Post, Ferguson, and George, and against appellants, L. B. Pierson, Selma Pierson, and Sylvia White, who, it was alleged in the petition, were residents of Cameron county. Beard sought judgment for the amount of the notes and foreclosing the vendor's lien retained to secure same as against all the parties mentioned above. The Farmers’ State Guaranty Bank intervened in the suit and sought judgment ■'"against said L. B. Pierson and Selma Pierson on a note for $2,000 made to it by them, and foreclosing (subject to the lien of appellee Beard) the lien of a deed made by them conveying the land to one Murray Reik-ey in trust to secure the payment of the note. Citations issued to Bexar county and accompanied by certified copies of both the plaintiffs’ and the intervener’s petitions were duly served on appellants L. B. Pierson and Sylvia White in that county. The suit having been dismissed so far as it was against ap-pellees Post, Ferguson, and George, judgment was rendered in appellee Beard’s favor against L. B. Pierson and Sylvia White for the amount of the two vendor lien notes, against Selma Piersonl for one-half that amount, and foreclosing as against each of them the vendor’s lien retained to secure the notes, and in favor of the appellee bank against said L. B. Pierson and Selma Pierson for the amount of their note to it, and foreclosing (subject to Beard’s lien) the lien of said deed in trust made to secure same.
    McCollum Burnett, of San Antonio, and Geo. R. Whitley, of San Benito, for appellants. Beard & 'Davidson, of Marshall, Graham, Jones & George, of Brownsville, and J. M. Mothershead, of San Benito, for appel-lees.

      Application for writ of error pending in Supreme Court.

   WILLSON, C. J.

(after stating the facts as above). It is insisted that the issuance of citations to and service thereof on appellants L. B. Pierson and Sylvia White in Bexar county was unauthorized, because it was alleged in Beard’s petition that they were residents of Cameron county, and it did not appear that citations to that county had been issued and not returned or had been returned not served. The contention is supported by Bean v. McQuiddy, 1 White & W. Civ. Cas. Ct. §§ 52, 53, and Duer v. Endres, 1 White & W. Civ. Cas. Ct. § 322, decided on the authority of Ward v. Lattimer, 2 Tex. 245. In the case last mentioned the residence of the defendants was alleged to he in' Red River county, where the suit was pending. Citation to that county having been issued and returned not served as to one of the defendants, an alias citation was issued to Lamar county, and there served on that defendant. The court held the service in Lamar county to be a nullity, on the ground that the statute “makes no provision for sending a summons out of the county, when the defendants all reside in the same county where the suit is instituted,” overlooking, evidently, section 19 of the act May 13, 1846 (P. D. art. 1435), then in force, as follows:

“When any process shall have been improperly served, or shall not have been returned, or shall have been returned without service, it shall be the duty of the clerk, upon the application of any party interested, his agent or attorney, to issue other process, directed to the sheriff or other officer of the same or any other county, as the party applying may direct.”

The section just set out of the act referred to is the same as article 1866, Yernon’s Statutes, and has been the law since its enactment in 1846. The Supreme Court, in Lauderdale v. Ennis Stationery Co., 80 Tex. 496, 16 S. W. 309, declaring it to be the duty of the clerk to issue citation to the defendants to the county in which they were alleged in the petition to reside, as directed by article 1215 of the Revised Statutes (article 1852, Vernon’s Statutes), held it to be proper, “upon the existence of any contingency mentioned in article 1227 of the revised statutes [being section 19 of the act of 1846, quoted above], for the clerk to issue alias process to the same or any other county, as directed, without an amendment of the pleading of the plaintiff; and when such process is found in the record, properly served, it will be presumed that its issuance was properly directed.” In the Lauderdale Case the appeal was from a judgment by default. In Railway v. Hagler, 38 Tex. Civ. App. 52, 84 S. W. 692, it was held:

“Where, in the process of a suit, it becomes necessary or advisable to issue citation to a county other than as originally prayed for, a mere suggestion to that effect devolves the duty upon the clerk of the proper court to do so.”

The effect of the rulings made in the two cases last cited, if it affirmatively appeared that the citations issued to and served on appellants, L. B. Pierson and Sylvia White in Bexar county were alias, and not original, writs, would be to require us to presume the existence of a state of facts which authorized the issuance of the alias writs, and to overrule their contention. The question is: Should the presumptioh be indulged and the contentions overruled because it does not affirmatively appear from anything in the record that the citations served on them were not alias writs? We are of the opinion the question should be answered in the affirmative. The burden is on appellants to show error entitling them to the relief they ask at the hands of .this court. They have not shown it, but are in the attitude of asking this court, as a basis for sustaining their claim of error, to presume that the clerk, in violation of his duty, did not issue the citations to Cameron county as prayed for in the plaintiff’s petition, but, instead, in the absence of facts which would have authorized him to do so, and, therefore in violation of law, issued the citations to Bexar county. The writer is further of the opinion, notwithstanding the rulings to the contrary made in the cases referred to, that, even if it conclusively appeared that the citations issued to Bexar county and served upon said appellants L. B. Pierson and Sylvia White were not alias, but were the original citations, the service on them should be held to have been sufficient to authorize the judgment by default rendered against them. They were duly served with the notice they, as defendants in the suit, were entitled to by the terms of the law, and he does not think the mere fact that service of that notice was had on them in another county in the state than the one they were alleged to reside in is a reason why they should not be held to have been bound to answer the suit.

The other contention, made on behalf of the appellant Selma Pierson, that the judgment is erroneous in so far as it is against her personally, is sustained. It appeared from the allegation in the plaintiff’s petition that she was the wife of appellant L. B. Pierson, and neither that petition nor the intervener’s petition disclosed that the debts respectively sued on, or either of same, were contracted for the benefit of her separate estate, or any other fact that authorized such judgment against her. Trimble v. Miller, 24 Tex. 214; Covington v. Burleson, 28 Tex. 368; Noel v. Clark, 25 Tex. Civ. App. 136, 60 S. W. 359.

The judgment will be so reformed as to deny to appellee Beard and also to appellee bank relief against Selma Pierson other than the foreclosure awarded against her of their respective liens. As so reformed, the judgment will be affirmed.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF LIVE STOCK INS. CO. v. LOVE et al.
    (No. 11.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 4, 1915.
    Rehearing Denied Dec. 2, 1915.)
    1. Bills and Notes <@=»226 — Indorsement as Surety — Consideratio n .
    Where a surety on a bond of an insurance agent conditioned that the surety would repay to the insurance company any premiums due it from the agent on termination of the contract between the agent and the company became a surety on notes of the agent for the sums then due the company, there was such a consideration for the new contract of suretyship that it was valid, since it operated as an extension of time of payment of sums already due.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 53A-541; Dec. Dig. @=> 226.]
    2. Pleading @=>412 — Reply—'Waiver of Objections to Want of.
    In an action on a contract of suretyship, where the defendant surety alleged fraud in securing his signature, to which the plaintiff failed to reply, it was the duty of the surety to ask for judgment upon the pleadings or to object to the introduction of evidence upon the question of fraud, and, where the surety proceeded to trial as if issue had been duly joined, he waived his ri<dit to avail himself at a later time of the defect in the pleadings.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. @=>412.]
    3. Bills and Notes @=>477 — Actions — Fraud — 'Good Faith — Pleading.
    Where defendant alleged that his signature was secured as surety on certain notes by fraud, it being represented to him that certain others would sign as sureties with him, and they did not so sign, that allegation was no defense to an action on the notes in the absence of a further allegation that plaintiff had notice of the fraud.
    [Ed. Note. — For other cases,, see Bills and Notes, Cent. Dig. §§ 1524, 1525, "1558: Dec. Dig. @=>477.]
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Action by the Gulf Live Stock Insurance Company against J. J. Love and another, in which the defendant J. T. Stark impleaded M. A. Watson and C. E. Slade. From a judgment for plaintiff against defendant Love and for defendants Stark, Watson, and C. E. Slade, the plaintiff appeals.
    Reversed, and judgment rendered as to defendant Stark, and cause remanded for new trial on the question of contribution between defendants Stark, Slade, and Watson.
    Bisland, Adams & Bruce, of Orange, for appellant. Holland & Holland, of Orange, for appellees.
   CONLEY, C. J.

This is a suit by appellant insurance company against J. J. Love and J. T. Stark on nine promissory notes dated April 2, 1912, eight of said notes being for the sum of $200 each, and the ninth for $154.35. Each note is payable to the Gulf Live Stock Insurance Company at Orange, Tex., with 10 per cent, per annum interest thereon from date, and providing for the usual 10 per cent, attorney’s fee. The first one of said notes is payable on June 15, 1912, and the other eight are due and payable respectively on the 15th day of each succeeding month after June 15, 1912. Plaintiff, appellant here, filed suit on all of the notes, on April 19, 1913. The defendants J. J. Love and J. T. Stark filed answers June 4, 1913, setting up the following defenses:

The defendant Love, in substance, pleaded that during the years 1911 and 1912 the plaintiff company was doing a live stock insurance business, that is, it was issuing policies of insurance upon horses, mules, and other live stock, insuring the owners of same against loss of said animals by death, and was collecting premiums for said policies; that he (the defendant Love) was the general agent or general manager of said company, whose duty it was to appoint subagents in the different counties in the state, which subagents, together with this defendant, secured applications for insurance upon the live stock of different parties, and the premiums for said policies were paid to the agent securing the insurance, a commission for which was retained by the agent and by the general agent, and the balance of the premiums was turned over to the plaintiff company; that there was to be a monthly accounting between the plaintiff company and the defendant Love of the amounts of premiums collected by him and his subagents for the preceding month, and that the said agents had until the 15th day of the succeeding month in which to pay the amounts collected and to make said report; that defendant Love, as the general agent, was required to and did give a bond to the plaintiff to secure the plaintiff in the payment of premiums so collected, which premiums were by the subagents returned to the defendant Love and accounted for to him, and he (defendant Love) in turn accounted for the same to plaintiff company, and the bond was given to secure said premiums collected by the defendant Love as general agent; that some time during the year 1912, about May 15th, the plaintiff company removed the defendant Love from his said office, and appointed another general agent in his stead, and required the defendant Love to execute the notes herein sued on, in the total sum of $1,954.35, which the plaintiff company then estimated to be the amount of the defendant Love’s indebtedness to the plaintiff company upon the bond, as general agent, that is to say, that the same represented the amount of premiums upon policies outstanding written by the subagents of the defendant Love, and which had not been turned in; that it was agreed between plaintiff company and the defendant Love that said premiums, when collected, were to be turned over to the treasurer of the plaintiff company, and defendant’s liability upon the above mentioned bond was thereby to be extinguished and canceled, and the said notes herein sued on were then to be returned to the defendant Love and canceled; that soon after the new general manager or general agent was appointed, and acting for it, and with .the acquiescence and knowledge of the plaintiff company, said new agent represented to each and all of the subagents of the defendant that the defendant Love was no longer the agent of the plaintiff company, but that the agent had been appointed, and that the amounts so due on all outstanding premiums were not tb be paid to the defendant Love, which representations were made in writing, and that the defendant, on this account, was prevented from collecting the sums then due by such subagents, except that the subagents or some of them did pay to the defendant $200 of said amount, which the defendant Love paid to the plaintiff company, and which should have been applied upon the indebtedness of the defendant Love to the plaintiff company; that the defendant Love also secured a note for $100 from a subagent in Harris county, which was turned over to plaintiff company and accepted by it as a credit upon the indebtedness of the defendant Love, and that he also secured several notes of Ad Van Kalckstein, in the sum aggregating $50, which he turned over to the company, and which was accepted by it as a credit upon the indebtedness; that soon after giving by the defendant Love of the notes herein sued on to the plaintiff company the stockholders of the plaintiff company sold out the entire capital stock of said company to John C. Tracey, and transferred the entire assets of the company to him; that he (George C. Foreman), the new agent, began winding >up the affairs of the company and began canceling the insurance policies which the defendant Love had secured for the company, and which cancellation required the return of the premiums by the insurance company to be insured; and that the plaintiff company canceled all of the policies so written by the defendant Love and returned the premiums on the policies then outstanding to the parties insuring their live stock, and this defendant claimed that by reason of the cancellation of such policies and the return of the premiums the consideration for said notes wholly failed. The defendant claims as a credit in the event he was held liable on said notes the amounts hereinbe-fore set forth, to wit, the total sum of $350. He also further alleged in his answer that he was required to execute a bond to the plaintiff for the proper conduct of his business as general agent and as security for the collection of the premiums on the live stock insurance policies, and that upon said policy the defendant J. T. Stark, together with O. E. Slade and M. A. Watson, were sureties; that at the time a new agent was appointed in defendant’s place and stead to conduct the business of the plaintiff company there was outstanding in the hands of various subagents over the state certain sums of money estimated by the plaintiff and the defendant Love to be about the sum of the notes executed by the defendant Love to plaintiff, and they further represented to the defendant Love that, if he would make the notes which are sued on herein, such notes would never be held as a charge against him, but would be canceled and returned to defendant as soon as the matter of collecting the premiums had been straightened up with the defendant and the subagents of this defendant; and that, in view of the representations made to him and in order to adjust the matter of the bond, he executed the nine notes sued on, the first eight of which were for the sum of $200 each, and the last for the sum of $154.35. The defendant alleged further that the notes were never to become a claim or obligation, but were simply to be held until the premiums or such part of them as could be collected were collected, and that the said notes were never to take the place of said bond, but that the bond should be and remain the obligation of the company, and was and is the contract between the plaintiff and the defendant Love, and that, if there is any liability from the defendant Love to the plaintiff, which he denied, the same is upon the bond, and not upon the notes. He prayed that he go hence without day and recover his costs.

The defendant Stark, in addition to alleging, in substance, what appears in the defendant Love’s answer, also set up that he was an accommodation indorser on the notes sued on for Love; that he received no consideration for the indorsement and none of the proceeds of any of the notes, and no benefits therefrom, and that at the time of the execution of said notes, as set out in plaintiff’s petition, the defendant Stark was induced to indorse the same, with the distinct understanding that M. A. Watson and C. E. Slade would become indorsers with him upon the notes, and that, unless the indorsement of G. E. Slade and M. A. Watson was had upon the notes, the defendant Stark was not to be held as an indorser of same, and that he (defendant Stark) would not have indorsed the notes except with this distinct understanding, and that he did indorse them with the understanding that the same were not to be delivered to the Gulf Live Stock Insurance Company, and were not to become an obligation against him unless C. E. Slade and M. A. Watson became indorsers thereon with him, and that the conditions of his indorsement were not complied with, and that as to him the notes should not have been delivered, and were not delivered to the Gulf Live Stock Insurance Company, and never became an obligation against this defendant; that he signed the original bond, as set out in defendant Love’s answer, as a surety with C. E. Slade and M. A. Watson; that the defendant Love, in view of the representations made to him by the plaintiff insurance company, and in order to amicably adjust the matter of the bond, executed the nine notes sued on, with himself as indorser; that the notes were never to take the place of the bond, but that the bond should be and remain an obligation to the company; and that it still is the contract between plaintiff company and defendant Love and the defendant Stark, if there is any liability from either of them to the plaintiff company, which he denies. The defendant Stark impleaded M. A. Watson and C.-E. Slade, and prayed that, in the event judgment should he recovered against him by the insurance company, he have judgment over- against the defendant J. J. Love for a like amount, and that he have judgment against C. E. Slade and M. A. Watson as joint sureties with him on the bond.

The case was tried in the district court without the intervention of a jury, resulting in a verdict in favor of appellant insurance company against J. J. Love for the sum of $2,439.03, and that the defendants J. T. Stark, O. E. Slade, and M. A. Watson go hence without day and recover their costs of suit. The trial court filed his findings of fact and conclusions of law. There is also a statement of facts in the record. The court’s findings of fact and conclusions of law are as follows:

“Findings of Fact and Conclusions of Law.
“In the above cause I find the following’ findings of fact and conclusions of law, to wit:
“First. Prior to the execution of the notes sued on J. J. Love, as principal, and John T. Stark, C. E. Slade, and M. A. Watson, as sureties, had executed and delivered to the plaintiff company some character of bond, which, by inference only, was intended as an indemnity bond, and which bond was delivered and put in the possession of the plaintiff company.
“Second. Prior to the execution of the notes sued on the plaintiff company and defendant J. J. Love ascertained by agreement that the amount due and owing by the defendant J. J. Love to the plaintiff company was the sum of $1,954.35, and only by inference that the bond1 which had previously been executed was to indemnify plaintiff for any amount that defendant Love might owe plaintiff, and the plaintiff company demanded of defendant Love payment of this amount, and agreed with defendant Love that this amount agreed upon1 could be settled by notes of the defendant Love indorsed satisfactorily to plaintiff company.
“Third. Immediately before the execution of the notes sued on the defendant Love approached the defendant John T. Stark and told him that the plaintiff company desired notes instead of the bond, and asked him to sign same, and stated that he would obtain the signatures thereto of M. A. Watson and O. E. Slade, both of whom were financially responsible residents of Orange county, Tex., and that he would not deliver said notes in lieu of said bond until he had obtained the signatures of the said M. A. Watson and O. E. Slade, and all of which was agreed to by and between the defendant J. J. Love and the defendant John T. Stark, and which agreement was not known by the plaintiff company until after this suit was filed, and the defendant John T. Stark did not know until about the time this suit was filed that M. A. Watson and O. E. Slade were not indorsers or sureties on the notes sued on, and that the said J. J. Love had violated his agreement with him, the said John T. Stark, in faffing to secure as sureties or indorsers with him the said M. A. Watson and O. E. Slade.
“Fourth. After obtaining the signature of the said John T. Stark on said notes, and in disregard to his agreement and statement, and without the knowledge or consent of the defendant John T. Stark,. the said J. J. Love delivered said notes herein sued on to the plaintiff company.
“Fifth. The defendant John T. Stark received no consideration for the signing of said note, and never knew of their being delivered to the plaintiff company until some time about the filing of this suit.
“Sixth. The defendant- Love on said agreement above set out procured the defendant Stark to indorse nine notes for the sum of $200 each, and one note for the sum of $154.35, being the notes herein sued on, except the first one of said notes, the same being for $200, and which first note was paid at maturity by the defendant Love.
“Seventh. The- ten notes above set out were delivered by the defendant J. J. Love to the plaintiff company, and were by the plaintiff company accepted in lieu of and in satisfaction of said bond, and the bond was delivered at the time of the acceptance of said notes by the plaintiff to the defendant J. J. Love.
“Eighth. The plaintiff company at no time up to the trial of this case knew of the agreement entered into by the defendant J. J. Love and the defendant John T. Stark that the defendant J. J. Love was not to use nor deliver said notes signed by the said John T. Stark unless he secured also as indorsers on said notes M. A. Watson and C. E. Slade, and therefore did not know of said agreement between the said Love and Stark at the time it accepted said notes in lieu of said bond and surrendered said bond to the defendant J. J. Love.
“Ninth. At the time of the acceptance of said notes by the plaintiff company the plaintiff company and the defendant J. J. Love had agreed in a settlement that the defendant J. J. Love owed the plaintiff- company the sum of $1,954.35, and by inference only that said boijd was liable for said amount, and the notes taken were due and payable, one each month thereafter.
“Tenth. That M. A. Watson and O. E. Slade were made parties defendant herein by the defendant John T. Stark, and judgment was rendered in their favor, that they go hence without day, and that they recover all costs in this behalf expended.
“Eleventh. That the. notes herein sued on, the principal sum of which aggregated $1,954.-35 have never been paid in whole or in part.
“Conclusions of Law.
“Under the above facts, I am of the opinion that the defendant John T. Stark is not liable to the plaintiff, but that the defendant J. J. Love is liable. I further find that the defendants M. A. Watson and C. E. Slade are not liable to either plaintiff or the defendant John T. Stark. I therefore render judgment for the plaintiff against the defendant, J. J. Love alone for the amount of the notes sued on,, attorney’s fees, and costs of court, and render judgment in favor of the defendants John 'T. Stark, M. A. Wi'atson, and C. E. Slade, that they go hence without day and recover their costs.”

Under the second assignment of error the appellant attacks the findings of the court to the effect that Stark received no consideration for indorsing the notes sued on.

The original petition in this case sets forth a suit by plaintiff against Love and Stark upon promissory notes, fully setting them out and describing them.

The defendant Stark, among other things, pleaded as follows:

“And for further and special answer herein the defendant says that some time during the years 1911 and 1912, the date of which this defendant is not certain, the said defendant J. J. Love was appointed and became the general agent of plaintiff, Gulf Live Stock Insurance Company, for the purpose of securing subagents over the state of Texas and conducting a live stock insurance business, and that, as such agent, the said defendant J. J. Love was required to execute a bond payable to the plaintiff for the proper conduct of said business as general agent and for the security of the plaintiff in the collection of premiums on the_ live stock insurance written, and that the said Love executed the said bond payable to the plaintiff, and had as a surety on the bond the said defendant J. T. Stark, together with O. E. Slade and M. A. Watson, and that the defendant Love conducted the said business from time to time until a new agent was appointed for the said company, some time during the year 1912, the date of which is well known to the plaintiff, but not known to the defendant and that upon the said Gulf Live Stock Insurance Company relieving said J. J. Love as agent and manager, and appointing the said George C. Foreman in his stead to conduct the business of said company, there was outstanding in the hands of various agents over the state certain sums of money, estimated to be about the sum of the notes, executed by the defendant J. J. Love to the plaintiff, which said notes are herein sued on.”
“And that the said defendant J. J. Love was after the severance of his connection with the said company, and about the ISth day of May, 1912, organizing a live stock insurance company and expecting to take charge thereof as general agent, and that the plaintiff, acting through its agents officers and stockholders, represented to defendant Love that unless he satisfied them with notes to cover the amount estimated to be due by the said agents, they would interfere with his business and prevent his securing the position of general agent with this Central Texas Live Stock Insurance Company, which he was organizing, and with which he was negotiating for a position as general agent. And the said defendant Love, in view of said representations made to him, and in order to amicably adjust the matter of said bond, executed the said nine notes herein sued on, the first eight of which was for the sum of $200 each, and the last for the sum of $154.35.”

The following undisputed evidence occurs in the statement of facts:

The defendant Stark testified as follows:

“Well, I had been on the bond for Mr. Love, and he came to me and told me that it was payable, and that they had told him that, instead of the bond, they would rather have it in the shape of notes. He said that the holders of the bond preferred the notes in place of the bond, and that the other men on the bond had agreed to sign the notes if I,did. * * * So I signed the notes with that understanding, that Mr. Watson and Mr. Slade would sign them with me. I was on the bond to secure J. J. Love’s indebtedness to the Gulf Live Stock Insurance Company at that time. He was the agent of the company, and they put him under the bonds for the securing of the funds of the company intrusted to his hands. As to whether at that time he had a big indebtedness owing to the company, I don’t know. He had to give them that bond. As the agent of the company, he was engaged by them to secure business for the Gulf Live Stock Insurance Company. I had been on that bond some time with M. A. Watson and C. E. Slade, something like a year or so before they came to me to pay the notes. I had been on the bond for a year or more when he came to me and said that the Gulf Live Stock Insurance Company preferred the notes in preference to the bond that had been executed. He told me, as I was going out of the city, that he would get me to sign the notes, with the understanding that he would get Watson and Slade to sign them afterwards; that they had already agreed to sign the notes. These notes are not indorsed nor signed by them in accordance with the agreement on his part. I would not have indorsed these notes if it had not been for that promise that these other men would sign if I did. Yes, sir; that promise was relied upon by me 'at the time I signed these notes. I understood that these notes were not to be passed to the Gulf Live Stock Insurance Company or delivered to them unless these other persons signed them; that was the understanding. It must have been five or six months after the notes became due that I found out that the notes had been turned in without the signatures of M. A. Watson and C. E. Slgde. *' * * Nothing at all was received by me as a consideration for signing them; I was just helping the other fellow out. I never authorized Mr. Love or any one else to deliver to the Gulf Live Stock Insurance Company these notes without the signature of Mr. Love and Mr. Watson.”

The testimony of G. M. Sells, witness for the plaintiff, is as follows:

“I was treasurer of the company [plaintiff] at the time Mr. J. J. Love gave the Gulf Live Stock Insurance Company these notes sued on. These notes were for the final settlement of the account of Mr. Love as general agent of the company. Mr. Love was not the general agent at the time. Nothing was said to me by Mr. Stark with reference to his indorsement at that time as to how the transaction was completed. My recollection is that Mr. Love was out as general agent some time in January, 1912. Up to April 2, 1912 [date of the notes], he had not settled with the company his indebtedness, so he made that settlement with notes indorsed by John T. Stark, which the company accepted in settlement of his indebtedness to the company. * * * ijjjg secretary of the company and Mr. Love determined the indebtedness to be the amount of the notes. Mr. Love and Mr. Hust-meyer agreed on that, and then Mr. Love and myself agreed to the correctness of the amount. * * * The company took these notes in settlement of the bond.”

In the seventh paragraph of the court’s findings of fact the court finds:

“That the ten notes above set out (nine of which are sued on in this cause) were delivered by the defendant J. J. Love to the plaintiff company, and were by the plaintiff company accepted in ,lieu of and in satisfaction of the bond, and the bond was delivered at the time of the acceptance of said notes by the plaintiff J. J. Love.”

In the second paragraph of the findings of fact and conclusions of law the court finds, in substance, that the sum of $1,954.35, was due and owing by the defendant Love to the insurance company prior to the execution of the notes, and that an agreement was entered into between the defendant Love and the insurance company that the amount could be settled by notes of the defendant Love indorsed satisfactorily to the company.

In the ninth finding of fact the court finds:

“That the plaintiff at no time up to the trial of this cause knew of the agreement entered into between the defendant J. J. Love and the defendant John T. Stark that the defendant J. J. Love was not to use or deliver the notes signed by the said Stark unless he secured also as in-dorsers on said notes M. A. Watson and O. E. Slade, and therefore did not know of said agreement between said Love and Stark at the time it accepted said notes in lieu of said bond and surrendered said bond to the defendant J. J. Love.”

From the above references these facts are undisputed:

(a) That the defendant Love was an agent of the plaintiff company, and, as such agent, he was collecting funds belonging to the plaintiff insurance company, and that the company had put him under a bond to secure tlie faithful performance of his duties in the handling of such funds, and that upon this bond the defendants John T. Start and C. E. Slate and M. W. Watson were sureties.

(b) That prior to and at the time of the execution of the notes sued on in this case there was a liability under the bond in the sum of $1,954.35 by reason of the failure of the agent Love to account to the plaintiff company for that amount of money, which amount the said defendant Love admitted was the correct amount.

(c) That prior to and at the time of the execution of said notes that amount was due and owing under the bond, for which Love and his three sureties were liable.

(d) That the notes were accepted by the plaintiff in satisfaction of the liability under the bond surrendered to the defendant Love, and the time of payment of such liability extended to the several dates of the maturity of the notes.

Now, in reaching the ultimate conclusion that the defendant Stark was not liable on said notes, did the trial court err in finding that the defendant Stark received no consideration for signing the notes? In this state, at least, the rule of law is established that the extension of the time of payment of a past-due indebtedness will support a consideration in a contract of suretyship; that one who becomes a surety or indorser under such circumstances, as set forth in the facts of the instant case, at the time of the renewal of a note, or when an extension of time for its payment is given, in consideration of such renewal or extension of the time, will be bound. The contract renewing and extending the time is sufficient to support the obligation of the surety or indorser to pay the note agreed upon. This principle is so well established that we do not deem it necessary to do more then cite a few of the authorities on the subject. Hannay v. Moody, 31 Tex. Civ. App. 88, 71 S. W. 325; Armstrong Cater Co. v. Snyder, 15 Tex. Civ. App. 394, 39 S. W. 379; People’s Bank v. Fleming, 160 S. W. 648; Templeman v. Texas Brewing Co., 35 S. W. 935; Brandt on Suretyship & Guaranty, par. 25.

Appellees contend that there is nothing to show that the bond was of any value, and that so far as this record shows it may be a worthless piece of paper. Under appellee Stark’s testimony, and under the other references hereinabove made, we fail to see the logic of this assertion. If, as appellee Stark testifies, the bond was to indemnify the insurance company for moneys in Love’s hands, it must have been a binding obligation to that effect, and so understood and regarded by Stark, when he executed it, and if, under its terms, $1,954.35 was due upon it, and payable before and at the time of the execution of the notes, and the notes extended the time of payment of said amount, would both determine the bond to be a paper of value and that it was surrendered for a valuable consideration. We think, under the facts and circumstances of this case, that the defendant Stark received a valuable consideration for indorsing the notes, and the second assignment of error is well taken, and should be sustained.

Under the first and fourth assignments of error the appellant attacks the action of the court in rendering judgment on the facts of the instant case for the defendant Stark. Before proceeding to consider these assignments, it will be well to notice here the contention of appellee under his first counter proposition to appellant’s first assignment of error, in which he urges:

“Defendant Stark having alleged fraud in procuring the notes sued on, that they were not to be delivered until indorsed by M. A. Watson, and O. E. Slade, who were sureties with him on a bond to plaintiff, and that said notes were not to become an obligation until so indorsed, these facts constituted such a fraud as to void the notes, in the absence of plea by plaintiff that he was a purchaser for value without notice.”

A close inspection of the defendant Stark’s answer leads us to the conclusion that there was perhaps an indefinite effort made in such answer to charge notice upon the part of the plaintiff insurance company of the agreement between Stark and Love that the notes were not to be delivered to the plaintiff company until Slade and Watson had indorsed them, and that, unless this was done, he was not to be hound thereby. At any rate, this agreement as between Love and Stark is clearly set out in the pleadings. No responsive pleadings of any kind were filed by the plaintiff, and nowhere does it appear that it filed any pleadings setting out that it took the notes before maturity and without notice of such alleged agreement.

For the sake of argument only, we may concede that it was incumbent upon the defendant company, in view of the allegations of the answer of the defendant Stark, to have filed a supplemental petition alleging such facts. However, the record shows that in the trial of this cause the case proceeded as though issue had been joined on such matters, and evidence was received thereon without objection, and there is a direct finding by the court that the notes were taken by the plaintiff company at the date of their execution, without notice of any such agreement, and in satisfaction of the bond.

It was the duty of appellee, if he desired to avail himself of the failure of appellant to controvert any of the allegations of the answer, or to file responsive pleadings thereto setting up the plea of innocent purchaser for value without notice, to have asked the court for judgment upon the pleadings, or at least to have objected to the introduction of any evidence by the appellant company upon such matters. If appellee proceeded as if issue had been duly joined on these questions, he waived his right to now avail himself of any right based thereon. In the case of Railway Co. v. Pennington, 166 S. W. 467, the court said:

“Failure to file any pleading which is necessary to form an issue, including a complaint, answer, or reply, or otherwise failing to join issue properly, or at all, upon any or all of the allegations appearing in the pleadings, is deemed waived by voluntarily proceeding to trial as though issue was properly joined. Likewise, whore the parties have voluntarily tried the case as if certain matters were in issue, neither will be permitted afterwards to object that such matters were not properly put in issue by the pleadings.”

For additional cases on this subject, see Shaw v. Thomson Bros. Lumber Co., 177 S. W. 574; Railway Co. v. Tomlinson, 169 S. W. 217; Hill Co. Cotton Oil Co. v. Gathings, 173 S. W. 598; Bybee et al. v. Austin et al., 180 S. W. 287, decided by this court on October 14, 1915, and which has not yet been reported.

Proceeding now to the discussion of the above assignments of error: There is no controversy by either side as to the court’s finding of fact that no notice of any kind of the agreement between defendants Stark and Love as to the matter of having C. E. Slade and M. A. Watson indorse the notes before delivery, and that unless this was done the defendant Stark would not be liable on said notes, if chargeable to the plaintiff company, when it took the notes in satisfaction of the bond. The evidence is clear and undisputed that the notes were delivered to the plaintiff company on or about the date of their execution, to wit, April 2, 1912, and that upon such delivery the plaintiff company, in. accordance with its understanding and agreement with Love, surrendered the bond and accepted the notes in satisfaction of the claim under the bond. The notes were ordinary forms of promissory notes,- and there was nothing in the notes that would in any way appraise the appellant company of any such agreement, or to put it upon notice of any such agreement, and, as heretofore held, there was ample consideration supporting Stark’s execution of said notes.

The law in this state is equally well established that one who received a negotiable note in the ordinary course of business for a valuable consideration, executed by two or more, but with the understanding of the makers between themselves that the note would not be delivered to the payee unless the signature of a third party was to he procured, can enforce its collection against those who signed it, unaffected by any such understanding of which he had no notice. In the case of Davis v. Gray, 61 Tex. 506, the court said:

“The note made the foundation of this action is negotiable in form, bears no evidence on its face that it ever was expected to be signed by any other persons than P. R. Turner & Co. and J. S. Davis, the appellant, and if the averments of the answer are to be taken as trae, was delivered by Turner & Co. to Gray, in the ordinary course of business, for a valuable consideration. This being true, it must he held that any agreement between Turner & Co. and Davis to the effect that the notes should be canceled unless Illison and Kyle also signed it as sureties cannot defeat the right of the plaintiff to recover on the note, unless it be shown that he had notice of the agreement between Turner & Oo. and Davis. The signing and delivery of the note by Davis to Turner enabled the latter to deliver it to Gray, who, in the absence of notice to the contrary, might rely upon the intention of all the parties whose signatures were on it to make with him the contract which the note evidenced.” Hess v. Sehaffner, 139 S. W. 1024; First Nat. Bk. v. Burns, 126 S. W. 34; Wharton v. Fidelity Ins. Co., 156 S. W. 539.

We think that the court erred in reaching the conclusion that the defendant Stark was not liable in this cause, and the first and fourth assignments of error are therefore sustained.

Under the view we have taken of this case, it is unnecessary for us to consider the other assignments of error, as they appear in' appellant’s brief.

The pleadings of C. E. Slade and M. A. Watson, if they filed any, are not contained in the record. The trial court, having found against the liability of the defendant Stark as a signer of the notes sued on, did not adjudicate the responsibility, if any exists, of M. A. Watson and O. E. Slade to contribute to the defendant Stark any sum he may expend in discharging the liability to the plaintiff company. In this state of the record, we are unable to determine what sort of a judgment if any, should be rendered against them, and in favor of the defendant Stark. For this reason it will be necessary to send that portion of this case back to the trial court for adjudication. This case will accordingly be reversed and rendered as to the defendant Stark on his liability as signer of the notes to the plaintiff company, and judgment will be rendered in favor of the plaintiff company against the defendant Stark, and said cause will be remanded for a new trial on the question of contribution between Stark and C. E. Slade afid M. A. Watson; and it is so ordered.
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author: KEY, C. J.

text:
    ÆTNA INS. CO. v. DANCER.
    (No. 5469.)

    (Court of Civil Appeals of Texas. Austin.
    Dec. 1, 1915.
    Rehearing Denied Jan. 12, 1916.)
    1. Judgment <&wkey;633 — Res Judicata — 'Waiv-eb of Bab.
    A trial resulted in a verdict for defendant, and the term of court ended without any entry of judgment or any ruling upon the motion for a new trial. At a subsequent term the judgment was entered of record nunc pro tunc, and plaintiff’s second motion for a new trial was granted, to which defendant excepted. Subsequently plaintiff filed its first amended original petition, and defendant its first amended original answer. Both parties announced ready, and the case was tried and judgment rendered on1 the findings for plaintiff. Held, that the question of jurisdiction was substantially the same as it would have been if plaintiff had brought another suit, and the defendant had answered and proceeded with trial, without suggesting any question of jurisdiction, and without any plea or proof of res judicata, so that the court had jurisdiction to retry the ease.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 1149; Dee. Dig. &wkey;633.]
    2. Judgment &wkey;>633 — Merger and Bab — WaiveR oe Bab.
    In such case defendant, which had not below denied the jurisdiction of the trial court to pass on the plaintiff’s second motion for a new trial and which had not in its amended answer, filed on the day when the case was called for retrial, suggested that the court was without jurisdiction to retry the case, but filed an answer to the cause of action set up in the petition, which was a cause within the trial court’s jurisdiction, and which voluntarily consented to a trial upon such cause of action, was es-topped from denying the trial court’s jurisdiction to retry the case.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1149; Dec. Dig. &wkey;>633.]
    3. Appeal and Ebeoe &wkey;>173 —. Review — Question Presented Below.
    In such case the question whether, in the absence of plea and proof of the former judgment, the defendant was entitled to a verdict and judgment because the trial court at a former term had rendered judgment for it, not presented in the court below during the trial, or in the motion for new trial, or in1 the assignment of error subsequently filed, would not be ruled upon.
    [Ed. Note. — R'or other cases, see Appeal and Error. Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. &wkey;173.]
    4. Insurance &wkey;>336 — Additional Insurance — Divisibility op Contract.
    A contract of insurance upon a house in a certain amount and upon household furniture in' another amount was divisible, so that the procurement of additional insurance upon the personal property did not affect the validity of the insurance upon the house.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 856-873; Dec. Dig. &wkey;336.]
    5. Insurance &wkey;>336 — Divisibility op Contract — Breach op Warranty.
    Under such policy a breach of warranty as to either the house or furniture would not affect the insurance on the remainder of the property.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 856-873; Dec. Dig. &wkey;»336.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by Ben F. Dancer against the /Etna Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wm. Thompson, of Dallas, and Jno. S. Patterson, of Austin, for appellant. Gross & Street and W. L. Eason, all of Waco, for ap-pellee.

      writ of error pending in Supreme Court.

   KEY, C. J.

On March 6, 1909, the /Etna Insurance Company issued to E. G. Keelin a policy, insuring him for three years in the sum of $1,500 on his house and $500 on household. furniture while in the house. la 1911 Keelin sold the house and farm to P. E. Ferguson, and, with the consent of the insurance company, transferred to him the policy of insurance. Keelin moved his furniture out and Ferguson moved his in. Thereafter in August, 1911, Ferguson sold the farm and house to William A. Casseday, and, with the consent of the company, transferred to him the policy of insurance. Ferguson moved his furniture out of the house, and Casseday moved his in. On September 4, 1911, Casseday procured $1,000 insurance on his household goods from another company. On October 9, 1911, the house was totally, and the furniture partially, destroyed by fire. Casseday transferred the /Etna policy to Ben F. Dancer, who brought this suit against the /Etna Insurance Company to collect the $1,500 on the house, no claim being made for the $500 on the furniture.

The insurance company has brought up transcripts covering three terms of court, and showing that the case was first tried at the April term, 1913, at which trial, which occurred on June 23, 1913, the jury returned a verdict for the defendant. On June 25, 1913, the plaintiff filed a motion for a new trial. On July 5th that term of court ended without any judgment having been entered upon the minutes of the court, and without any ruling having been made upon the motion for new trial. At the July term, 1913, and on the 30th day of that month, upon motion of the defendant agreed to by the plaintiff, the judgment, which had formerly been rendered upon the verdict of the jury for the defendant, was entered of record nunc pro tunc, and on that day the plaintiff filed a second motion for new trial, and on October 3d amended that motion, which was acted upon by the court on October 4th and granted, and an order entered setting aside the verdict of the jury rendered at the former term and granting plaintiff a new trial, to which action the defendant excepted. The July term ended October 4, 1913. At the January term, 1914, and on the 10th day of that month, by leave of the court the plaintiff filed his first amended original petition, and two days thereafter, by leave of the court, the defendant filed its first amended original answer, whereupon the case was called for trial, and both parties announced ready. The c'ourt submitted the case to the jury upon special issues, and upon findings made rendered judgment for the plaintiff, and the defendant, who will hereafter be called appellant, has brought the ease to this court by writ of error.

By its first assignment of error appellant presents the contention that the judgment appealed from is void and 'of no force, for the reason that the court below was without jurisdiction to try the case and render judgment, because of the fact that it had been previously tried at a former term and a verdict and judgment rendered for the defendant, which judgment was not set aside or vacated at that term of the court, and therefore became final and binding upon the plaintiff, and that the court below .had no jurisdiction to vacate that judgment at a subsequent term, and to retry the case. While the solution of the question of the jurisdiction of the court below to retry the case is not free from difficulty, we have reached the conclusion that, as presented by the record, it should be decided against appellant. In so far as the record shows, the question of jurisdiction was not even suggested in the trial court and is presented for the first time in this court. It may be conceded that counsel for appellant are correct in their contention that the court below had no power at a subsequent term to set aside the verdict and judgment rendered for appellant at the former term, although it had the power at the subsequent term to cause the judgment formerly rendered to be entered upon the minutes nunc pro tunc. And it may also be conceded that if, when the case was called for trial at a subsequent' term, appellant had pleaded the former judgment as a bar to the right of recovery set up in plaintiff’s amended original petition, or, perhaps, if appellant had objected to the retrial of the case upon the ground that the court was without jurisdiction, and had proceeded with the trial under protest, then it may be that the case should be reversed. But the record fails to show that appellant even denied the jurisdiction of the trial court to pass upon appel-lee’s second motion for a new trial, and nowhere in appellant’s amended answer, which was filed on the same day the case was called for trial, was it even suggested that the court was without jurisdiction to retry the case. The amended petition, upon which the case was tried, stated a cause of action that was within the jurisdiction of the trial court; and, without raising any question of jurisdiction, appellant filed an answer to the cause of action set up in appellee’s petition, but did not even plead the former judgment as a bar t'o appellee’s right to recover; and after filing that answer, and without questioning the jurisdiction of the court, appellant announced ready, proceeded with the trial, and did not even raise the question of jurisdiction in its motion for new trial; and, in order to present that question t'o this court it has brought up transcripts covering three terms of the court below. This being the condition of the record, we have reached the conclusion that the question of jurisdiction is substantially the same as it would have been if the plaintiff had brought another suit in the court below and the defendant had appeared, answered, and proceeded with the trial without suggesting any question of jurisdiction, and without any plea or proof of res adjudi-cata, in which event we think it should be held that the court was not without jurisdiction to try the case. The case at bar was tried upon a petition which, upon its face, disclosed a case within the jurisdiction of the trial court; and if, as shown by the record, the defendant voluntarily consented to a trial of the case upon the cause of action so disclosed, we think it is precluded from denying that the court had jurisdiction. As to whether or not, in order to avail itself of the former verdict and judgment, it was necessary for appellant to plead and prove the existence of such former judgment, we deem it unnecessary to decide.

Certainly it would have been necessary to have done so if the former judgment had been rendered by some other court; and whether or not, in the absence of such plea and proof, appellant was entitled to a verdict and judgment because of the fact that the trial court at a former term had rendered judgment for it is a question that was not presented in the court bel'ow, either during the trial or in the motion for a new trial or in the assignments of error subsequently filed, and therefore we do not rule upon it.

If it be true, as contended by appellant’s counsel, seemingly well supported by authority, that the transfer of the policy made it a contract between appellant and Casseday, by which Casseday’s household goods were insured for $500, nevertheless, inasmuch as the house and the personal property insured were different in kind and were insured as separate articles and for separate and specified amounts, following the rule established in this state, we hold that the procurement of additional insurance upon the personal property did not affect the validity of the insurance upon the house, which is all that appellee sued for in this case. In other words, a contract of this sort is held to be divisible, and it is also held that a breach of warranty or condition as to one kind or class of property will not affect the insurance on the remainder of the property. Insurance Co. v. Schmitt, 10 Tex. Civ. App. 550, 30 S. W. 834; Luckett v. Insurance Co., 12 Tex. Civ. App. 139, 34 S. W. 175; Roberts v. Insurance Co., 13 Tex. Civ. App. 64, 35 S. W. 957; Insurance Co. v. Brady, 41 S. W. 517; Insurance Co. v. Tufts, 20 Tex. Civ. App. 147, 50 S. W. 181; Insurance Co. v. Kellner, 169 S. W. 636; 2 Cooley’s Briefs, 1896, 1900, 1901, 1904, 1914, 1916, 1925.

All the questions presented in appellant’s brief have been duly considered, and our conclusion is that no reversible error has been shown, and therefore the judgment is affirmed.

Affirmed.
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