text:
    WILLIAMS v. FARMERS’ NAT. BANK OF STEPHENVILLE.
    (No. 8778.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 12, 1918.
    Rehearing Denied Feb. 16, 1918.)
    1. Husband and Wins <§=>169(1) — Authority off Wife — Abandoned Wife.
    An abandoned wife may mortgage her separate estate.
    2. Husband and Wife <§=>304 — '“Abandonment of Wife.”
    The sentence of a husband to the penitentiary is equivalent to the abandonment of a wife.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Abandonment.]
    3. Homestead <§=>110 — Conveyances—Abandoned Wife.
    An abandoned wife, without minor children or single daughters living with her, or other constituent members of a family, may mortgage her homestead.
    4. Witnesses <§=>164(3) — Competency — “Transactions with Decedent.”
    Testimony that decedent was the person who signed note in suit is not testimony as to a transaction with the decedent within Vernon's Sayles’ Ann. Civ. St. 1914, art. 3690.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transaction.]
    5. Witnesses <§=»144(13) — Competency — Transactions with Decedent — Agent of Corporation.
    Vernon’s Sayles’ Ann. Civ. St 1914, art. 3690, forbidding a survivor as against a personal representative to testify as to transactions with the decedent, does not apply to agents of a corporation with whom decedent had business relations, even though the business was transacted wholly through the agent.
    6. Husband and Wife <®=>85(1) — Notes— Validity — Necessaries.
    A note executed by an abandoned wife stands on the same footing as if it was executed for necessaries, where the proceeds were used in the purchase of necessaries.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Action by the Farmers’ National Bank of Stephenville against Mrs. Pearl Williams, ad-ministratrix. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. W. Moores, of Stephenville, for appellant. Chandler & Pannell, of Stephenville, for appellee.
   BUCK, J.

This was an action by appellee to recover of the appellant on three promissory notes in the sum of $186.15 each, of date November 19, 1915, executed by Mrs. N. C. Burkett and Albert and G. Burkett. To secure the payment of said notes, Mrs, Burkett and her two sons executed a deed of trust upon 228½ acres of land upon which Mrs. Burkett and her son Albert lived at the time, and also executed a chattel mortgage upon certain personal property. Prior to the execution of these notes and deed of trust, Mrs. Burkett had been married to one Ike Danley. After living with him a short time and after having removed from the homestead belonging to the community estate of herself and deceased former husband, Calvin Burkett, and because of Danley’s drunkenness and his threats to kill her, Mrs. Danley returned to the old home with her youngest son, Albert, who became of age prior to the execution of the notes and deed of trust. The money secured on the notes was used for the purchase of necessaries and the payment of taxes on this home. Subsequent to the separation, Danley was convicted of and served a sentence in the penitentiary for a felony. The officers of the appellant bank did not know that Mrs. Burkett had been married to Dan-ley at the-time she executed the notes and deed of trust, and believed that she was in fact still the widow of Calvin Burkett. She signed the said instruments in her name as Mrs. N. C. Burkett. Subsequent to execution of the notes, Mrs. Burkett, or Mrs. Danley, died. Suit was brought on these notes, and plaintiff asked for a foreclosure of the deed of trust lien and the chattel mortgage lien. Mrs. Pearl Williams, appellant here, had been appointed administratrix of the estate of her mother, Mrs. Burkett, or Mrs. Danley, and was made defendant in this suit. W. Chamberlin, Sr., and W. Chamberlin, Jr., and F. A. Chamberlin intervened in this suit, predicating their cause of action on indebtedness alleged to have been incurred by Mbs. Danley in the sum of $800, and asked for a foreclosure of the chattel, mortgage on certain personal property and deed of trust on the same land covered by the mortgage to the bank; this foreclosure, however, to be subject to that of the bank. They alleged that the indebtedness was incurred for necessaries.

Defendant pleaded the coverture of Mrs. Danley at the time of the execution of these notes and obligations, the failure of her husband to join, in the same, that the acknowledgment on the part of Mrs. Burkett, or Mrs. Danley, was not in form as required under the law for a married woman, and further pleaded that the land and premises upon which the deeds of trust had been given was at the time of the execution of the same the homestead of Mrs. Danley, formerly Mrs. Burkett, and therefore the mortgage fixed no lien upon said land. The cause was tried before the court without a jury, and judgment was rendered for the plaintiff and the interveners, and a foreclosure on Mrs. Bur-kett’s interest in the 228½ acres was decreed, from which judgment the defendant has appealed.

Appellant’s first assignment of error urges that the court committed error in permitting the introduction of the notes in question, because at the time oí the execution, of the same, Mrs. Danley, formerly Mrs. Burk-ett, was a married woman, and that the notes were void because she was not joined therein by her husband. The second assignment is directed to the foreclosure of the deeds of trust executed upon the 228½ acres, because, it is insisted, the evidence showed that said premises were the homestead of Mrs. Danley, or Mrs. Burkett. These two assignments we will discuss together. In order to reach a proper conclusion with reference to the questions here presented, it will be necessary for us to decide: (1) May an abandoned wife mortgage her separate estate? (2) Was Mrs. Burkett an abandoned wife? (3) Did the premises constitute the homestead of Mrs. Burkett at the time of the execution of these notes? (4) May an abandoned wife, without minor children or single daughters living with her, or other constituent members of a family, mortgage her homestead under such circumstances ?

In Slator v. Neal, 64 Tex. 222, it is held that the sentence of a husband to the penitentiary is equivalent to the abandonment of the wife, and she may dispose of her community property as a feme sole. In Hector v. Knox, 63 Tex. 613, it is held even though the property be a homestead it may be conveyed by an abandoned life. In Mabry v. Lumber Co., 47 Tex. Civ. App. 443, 105 S. W. 1156, writ denied, this court held that an abandoned wife might incumber her homestead situated on her separate property. A wife, having authority by reason of the husband’s abandonment of her to bind the community estate for necessaries, can execute a valid mortgage thereon for debts theretofore incurred for necessaries. Fermier v. Brannan et al., 21 Tex. Civ. App. 543, 53 S. W. 699. In Grothaus v. De Lopez, 57 Tex. 670, it is held the surviving widow, occupying with her children her homestead in which she had at least a community interest and upon which .she executed a deed of trust, conveyed thereby her interest in said homestead. See Shannon v. Gray, 59 Tex. 251; Barrett v. Eastham, 28 Tex. Civ. App. 189, 67 S. W. 199; Ashe v. Yungst, 65 Tex. 636. The evidence discloses that the two sons of Mrs. Burkett were over 21 years of age, and that the 'daughter was married at the time of the execution of the notes to the bank. It is decided in Givens v. Hudson, 64 Tex. 471, that a family cannot be constituted by adult descendants other than unmarried daughters remaining with the family of deceased. In Harle v. Richards, 78 Tex. 86, 14 S. W. 257, after the death of a husband the widow and the son executed a mortgage on their interest in the residence; it was held that in a suit to foreclose the mortgage their interest in the residence homestead was subject to sale, under foreclosure, subject to the right of the widow and minor children to occupy it. See, also, Lee v. British Mtg. Co., 61 S. W. 138. From the above-cited authorities, and many others might be mentioned, we are of the opinion that Nos. 1, 2, and 4 of the questions above suggested as being raised by these two assignments must be answered in the affirmative, and in favor of a judgment. See Speer’s Law of Marital Rights in Texas, § 202. Question 3 then becomes immaterial.

Under the third assignment, it is claimed the court erred in admitting, over objection of defendant, the testimony of W. H. Frey, president of plaintiff bank, to the effect that Mrs. N. C. Burkett was the person who signed the notes and deed of trust sued on herein. We are of the opinion that such testimony would not be with reference to a “transaction” with decedent, as that term is used in article 3690, V. S. Tex. Civ. Stats. Martin v. McAdams, 87 Tex. 225, 27 S. W. 255. But even if the matter of identification of Mrs. Burkett with the person who executed the notes and deed of trust should properly be held a “transaction,” yet the objection must be overruled, because it has been held a number of times that the article in question does not apply to the agents of a corporation, or even to the agents of a natural person. In Saunders’ Ex’rs v. Weekes et al., 55 S. W. 33, it is held that Revised Statutes, art. 2302 (now article 3690), forbidding either party to any action against the executors to testify as to any transaction with the deceased unless called by the opposite .party, cannot be extended so as to include the agent of such party to a suit against executor, although the transaction sought to be established was done entirely by the deceased and the agent. In Mortgage Co. v. Thedford, 21 Tex. Civ. App. 254, 51 S. W. 263, this court held, in an opinion by Justice Hunter, that the inhibition did not apply to the officers or agents of a corporation. Lester v. Hutson, 184 S. W. 268.

In the fourth and last assignment, complaint was made that the court erred in his conclusions of fact that the notes sued on were in part given for the procuring of provisions and necessaries on the part of Mrs. Bur-kett and her family. The fact that the money loaned was needed and used for the purchase of necessaries would give the transaction the same character as if the notes themselves were made for necessaries. Fermier v. Brannan et al., supra.

All assignments are overruled, and the judgment is affirmed.

Affirmed.

CONNER, O. J., not sitting, serving on writ of error committee at Austin.
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source: Caselaw Access Project

author: HIJEE, C. J.

license: Public Domain

text:
    TEXAS & N. O. R. CO. et al. v. JONES.
    (No. 1298.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1918.)
    1. Afpeal and Error 3=3694(2) — Assignments oe Erbob— Statements.
    Where the statement merely sets out the petition, without the evidence, under a proposition that court erred in not directing verdict, the assignment will not be considered.
    2. Carriers §=320(31) — Agreements Between Roads — Question for Jury.
    In action against two railroads for personal injuries, where it appeared that one had been running trains over the track of the other for 14 years, the court did not err in submitting to the jury the question as to whether there was an agreement between the roads.
    3. Railroads §=260 — Lessees and Licensees.
    A railroad is liable for negligence of other roads using its tracks, whether licensees or lessees.
    4. Appeal and Error 3=994(1) — Weight of Evidence.
    The appellate court cannot weigh each fact and decide as to the credibility of the several witnesses.
    Appeal from Collin County Court.; M. H. Garnett, Judge.
    Suit by A. J. Jones against the Texas & New Orleans Railroad Company and the Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    See, also, 187 S. W. 717.
    G. R. Smith, of McKinney, and Baker, Botts, Parker & Garwood, of Houston, for appellants. R. C. Merritt and L. J. Truett, both of McKinney, for appellee.
   HIJEE, C. J.

A. J. Jones, appellee, sued the Texas & New Orleans Railway Company and the Houston & Texas Central Railroad Company for damage, occasioned by injuries received by his wife while a passenger on the Texas & New Orleans Railway Company’s train, October 24, 1914. It is alleged substantially on that date appellee’s wife and four children embarked on the Texas & New Orleans Railway Company’s passenger train at Jacksonville, Tex., on their way to Dallas, Tex., and after arriving there and after the train had gotten on the track of the Houston & Texas Central Railroad Company, in order to reach the Union Station, where Mrs. Jones was to alight, the train was uncoupled at a street crossing, which is alleged to have been Elm street, and the front end of the train moved across and pulled north towards the Union Station, and leaving Mrs. Jones and children in the coach just south of the street crossing, at which place passengers usually alighted, and, while she was alighting and while on the platform of steps of the coach, the front part of the train, to which was attached the locomotive, suddenly backed against the coach with great force and with unusual violence, and that the jar or jerk knocked Mrs. Jones down against the floor. It is alleged that these acts were negligent and which negligence it is alleged was the proximate cause of her injury. It is further alleged that, if appellee was mistaken as to the engine moving back and the cars being the property of the Texas & New Orleans Railway Company, then it was alleged that it belonged to the Houston & Texas Central Railroad Company. It is alleged: That Mrs. Jones was hurt internally, the nature of which could not be given further than that she became deathly sick, began flooding and miscarried, and her nervous system was greatly shocked and permanently impaired by reason of the injury and miscarriage. Her health was greatly impaired and destroyed, until she is now an invalid, and that her injuries are permanent. That then and since she has suffered violent and excruciating pains and will continue to do so. It was also alleged that each of the appellants were corporations and common carriers, incorporated under the laws of the state of Texas, and each was a common carrier for hire; that the Texas & New Orleans Railway Company owns and operates and maintains a line of railway from the town of Jacksonville, Tex., to the city of Dallas, where it connects with the line of its eodefendant, the Houston & Texas Central Railroad Company, which last company owns a line from Dallas north into and through Dallas and into and through Collin county; that the Texas & New Orleans Railway Company used the tracks of the Houston & Texas Central Railroad Company in the city of Dallas, in reaching the union depot, which is the place where each received and discharged passengers, but the exact understanding and agreement existing between the two roads it is alleged was not known to appellee, but that it was not specially authorized by the legislative authority of Texas; that by reason thereof the Houston & Texas Central Railroad Company is liable for the torts and negligent acts of the Texas & New Orleans Railway Company, as above stated. They were each notified in the petition to produce such agreement or contract, or secondary evidence would be offered on the trial by plaintiff.

The jury found upon special issues that the train upon which Mrs. Jones was riding gave a violent and unusual jar, bump, or jerk, occasioned by reason of the movement of the front part of the train while she was attempting to alight therefrom; that such violent and unusual jerk or jar was negligence on the part of the defendant the Texas & New Orleans Railway Company, and such negligence was the proximate cause of the injury to Mrs. Jones; that by reason of such injury appellee was damaged $2,000. The jury also found that the miscarriage of Mrs. Jones was not the probable and natural sequence of her general condition, and caused solely by such condition, or by her acts or habits prior to the time of her arrival at Dallas, when and where the injury was alleged to have occurred. The jury also found there was a contract or agreement between the two railroads, whereby the Texas & New Orleans Railway Company was permitted to and did use the tracks of the Houston & Texas Central Railway Company from the Texas & New Orleans Junction in South Dallas to the depot of the Houston & Texas Central Railroad Company at Dallas at the time of the alleged injury. The jury also found the car upon which Mrs. Jones was riding gave a violent and unusual jar, bump, or jerk, while she was attempting to alight, which was caused by the movement and operation of the train of cars, and that such movement was negligence on the part of the Texas & New Orleans Railway Company. This last finding was in answer to special issues requested by appellee in addition to those which had theretofore been answered, submitted by the court.

The first assignment is based on the refusal to instruct a verdict for the Houston & Texas Central Railroad Company, because, it is asserted, there is no evidence showing negligence on its part and no evidence showing a defect in trackage or equipment on its part. The sole proposition under this assignment is that the court erred in not giving this charge, and that such error is fundamental. The statement thereunder sets out only the petition of appellee and no evidence thereunder. The argument appears to be based on the ground that the court ought to have sustained the general exception to the petition. Clearly, the assignment is not briefed under the rules. We do not think if there had been an assignment on the action of the court in overruling the general exception that it could be sustained. Every reasonable intendment will be indulged under this record as presented in favor of the petition. The facts are undisputed, and all the testimony that was introduced shows the track on which the injury occurred was the Houston & Texas Central Railway Company’s track and at its depot. In the absence of testimony to the contrary, this we think sufficient to establish the liability of that company.

The second assignment urges that the court was in error in submitting the issue as to whether there was an agreement or contract between the two roads whereby the Texas & New Orleans Railroad Company was permitted the use of the Houston & Texas Central Railway Company’s track because there was no evidence of any such agreement. The evidence in this case shows that the Texas & New Orleans Railway Company used the depot of the Houston & Texas Central Railroad Company together with its track to the depot, from a junction in South Dallas, known as the Texas & New Orleans Junction. The conductor said the Texas & New Orleans Railway Company had been using this track and depot of the Houston & Texas Central Railroad Company for' 14 years to his knowledge, and he supposed under some sort of an arrangement. The testimony of other witnesses is to the same effect. The injury is shown to have been received on this track at a point where passengers for both roads were received and discharged at the depot. The evidence that the injury occurred on the Houston & Texas Central Railroad track is undisputed except as to whether Mrs. Jones was actually injured by an unusual jar or jerk of the cars. It seems to us that when it is shown, as in this case, for more than 14 years the Texas & New Orleans Railroad Company used the track of the other road and they both used that track,and depot in conjunction to take on and discharge passengers, that in the absence of any testimony tO‘ the contrary an agreement was shown between the two roads —at least if not an express agreement an implied one. But, as we understand the law, this is not vital. The Houston & Texas Central Railroad Company had a charter from the state, under which it was under obligations to use its road in the interests of the traveling public. The fact that it may do so by lessee or licensee would not have the effect to absolve it from the duty of seeing that its lessee or licensee provide instrumen-talities and servants competent to perform the duties devolving upon the railroad, and that such lessee used ordinary care and skill for that purpose; for upon such care depends the lives and property of the general public, and especially passengers passing over sue; roads, and both the instrumentalities and servants should be reasonably competent to perform that service.

“The law is well settled that when an injury results from the negligence or unlawful operation of a railway, whether by the corporation to which the franchise is granted or by another corporation which the proprietary company authorized or permits to use its tracks, both the lessor and the lessee are liable to respond in damages to the party injured.” Railway Co. v. Horne, 197 Ill. 250, 64 N. E. 331.

Our courts hold the same, as we understand the decisions. Railway Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805; Railway Co. v. Owens, 75 S. W. 579; Railway Co. v. McGrath, 160 S. W. 444; Railway Co. v. Mentzer, 214 Fcd. 10, 130 C. C. A. 404; Quigley v. Toledo Ry. Co., etc., Ann. Cas. 1915D, 992, notes.

The third assignment asserts that the un-contradicted proof shows that the injury complained of was the result of natural causes, and not the result of any injury Mrs. Jones received by falling on the steps. It will be noted the assignment is itself contradictory in a sense. Miscarriage was alleged as a result of the injury, or Bather a concurring injury with others. The assignment assumes there was an injury by the fall. Th'e petition alleges internal injuries were received, the nature of which was not known, producing a nervous shock which permanently impaired the health of Mrs. Jones. It will Be noted, also, the jury found that the fall was the proximate cause of her “injury.” In answer to another issue which had been requested by the appellants, the jury found that the miscarriage was not occasioned by natural causes or from her previous condition and habits of life. The appellants appear to rely upon the cross-examination of the doctors to sustain their assignment. The examination of the doctors was largely based upon hypothetical questions founded upon evidence assumed by appellants to be true. Many of the facts and circumstances constituting the hypothesis were in dispute. The appellee framed a question upon facts which he asserted were true and obtained from the doctors answers favorable to his allegation; that is, that the injury caused the mishap. The testimony upon which these several hypotheses were based, and the truth thereof, were for the jury.

The fourth and fifth assignments assert that the findings of the jury are not supported by the great preponderance and weight of the evidence; that the train was not cut and a fall and resulting injury occasioned thereby. We think the jury had evidence upon which to make the findings. It will be useless for us to discuss the conflicting evidence and the various statements, explanations, and inconsistencies in the testimony of the various witnesses for both parties. In order to do so, we would be required to weigh each fact and to decide as to the credibility of the several witnesses, which is not in our province.

The case made by this record is different from the record as made on former appeal and passed on by this court in 187 S. W. 717, in that the daughter and husband, who were present at the time of the injury, testified on the latter trial, and the testimony is different in several other particulars, not necessary, as we view the case, to point out.

The case will be affirmed.
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author: BOYCE, J. BOXCE, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. LANGFORD.
    (No. 1285.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1918.
    On Motion for Rehearing, March 13, 1918.)
    1. Railroads <©=>396 (1) — Injuries to Persons — Hot Cinders — Burden oe Prooe.
    One into whose eye a hot cinder is thrown by an engine 174 feet distant has the búrden of proving negligence.
    On Motion for Rehearing.
    2. Appeal and Error 3=51177(2) — Remanding Cause — Necessity.
    Where a case has been tried on an improper theory, the cause must be remanded, where it appears that under a proper view of the case, the appellee might make out,a case, although, as tried, he did not.
    Appeal from District Court, Hunt Coun. ty; J. A. Ward, Judge.
    Action by Robert Langford, by next friend, W. A. Langford, against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Dinsmore, McMahan & Dinsmore, of Greenville, and Chas. C. Huff, of Dallas, for appellant. Evans & Shields, of Greenville, for appellee.
   BOYCE, J.

The appellee, Robert Lang-ford, recovered damages in the court below against appellant railway company, on account of injury to his eye, caused by a cinder alleged to have been thrown out by one of appellant’s engines, and negligence charged against the railway company being in its alleged failure: First, to equip its said engine with the proper spark arresting devices ; second, to properly inspect the same and keep such devices in good order; third, to properly operate its said engine.

The evidence is sufficient to show that, while appellee was standing some 174 feet from the railway track and about 128 yards from appellant’s engine, from the direction of which a strong wind was blowing toward him, looking at said engine as it started to move the train after it stopped at the station of Celeste, a shower of cinders from said engine fell around him, and one or more hot cinders got in one of his eyes, from which he suffered pain for some time thereafter. The railway company offered evidence to show that its engine was properly equipped with proper spark, arresters; that these were in good repair, and that the engine was properly handled at the time. There is some testimony tending to show that, if the engine was properly equipped and properly handled, it should not throw cinders of the size, such as some of the witnesses described as falling around plaintiff at the time, the distance from the engine to where plaintiff was standing at such time.

Complaint is made of a part of the charge of the court, which is as follows:

“If you believe from a preponderance of the evidence in this case that on the 15th day of July, 1915, sparks and cinders escaped from one of defendant’s locomotives at Celeste, Tex., and that a hot cinder from the said locomotive struck the plaintiff in the eye and injured him in any of the ways alleged in his petition, then you will find for the plaintiff and assess his damages under the instruction hereinafter given you, unless you further find from the evidence for the defendant under the next paragraph hereof.”

This paragraph of the charge was followed by the following instruction:

“If you fail to find from the evidence that a spark escaped from defendant’s engine and struck plaintiff in the eye, you will find for the defendant.”
“If you believe from the evidence in this case that the defendant used ordinary care to equip its said locomotive with the best and most approved spark arrester then in general use among competent railroad operators for the prevention of the escape of sparks and fire therefrom; and if you further believe the defendant used ordinary care to keep said spark arresters in good order and condition; and if you further believe from the evidence that the said locomotive was being skillfully operated by a competent and skillful engineer, and with ordinary care — then you will find for the defendant.”

The effect of this charge was to make the railway company liable for the injury resulting from a cinder emitted from its engine without a finding of negligence, and the liability thus imposed could be escaped only by an affirmative showing on the part of the railway company and finding by the jury that the railway company had exercised ordinary care in respect to providing and keeping in repair its spark:arresting devices and in the management of the engine at the time. We think the charge was erroneous. In the case of fires resulting from sparks escaping from railway engines, it is the established rule in this state that the court may inform the jury that the fact of the setting of the fire is sufficient to establish a prima facie case which may be rebutted on the part of the railway company by showing that it had exercised ordinary care to select and equip its engine with the most approved spark arresters, etc. It was held, however, by the Supreme Court, in the case of St. Louis Southwestern Railway Co. v. Parks, 97 Tex. 131, 76 S. W. 740, that this rule was an exception, and would not be extended to eases of this character, and that in these cases the burden of proof on the issue of negligence remained on the plaintiff throughout the trial. This case was followed in the case of M., K. & T. Ry. Co. v. Mitchell, 34 Tex. Civ. App. 394, 79 S. W. 94. The rule established in the fire cases was followed in Railway Co. v. O’Kelleher, 21 Tex. Civ. App. 96, 51 S. W. 54, and Texas Midland Ry. Co. v. Jumper, 24 Tex. Civ. App. 671, 60 S. W. 797. These cases were decided before' the decision in the Parks Case, and the 'Supreme Court in said case expressly states that it did not approve the charge in the OTielleher Case.

If it is true, as the undisputed evidence seems to show, that no spark arrester that will permit a reasonable use oJJ a locomotive will prevent the emission of cinders of the small size shown to have entered appellant’s eye, then before plaintiff should be permitted to recover it ought to reasonably appear from the evidence that by reason of some negligence of the defendant in the construction, repair, or operation of its engine, plaintiff sustained any injury that would not have resulted from the proper operation of a locomotive properly equipped. Cantelou v. Trinity & B. V. Ry. Co., 101 S. W. 1019, and authorities. In view of another trial we will not discuss the testimony on this subject in detail to determine whether it was sufficient to warrant the submission of the case to the jury.

Reyersed and remanded.

HUPP, C. J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.

On Motion for Rehearing.

BOXCE, J.

Our reason for not discussing the evidence in detail in this case was that, since the case was tried on an erroneous theory as to the prima facie effect of the mere showing of the injury from a cinder from appellant’s engine, we would not feel authorized in reversing and rendering the case, unless it should reasonably appear that under a proper view of the law tlie plaintiff could not establish any liability. The evidence does tend to show either that the engine was not properly equipped or was improperly handled, and while it does also show that no degree of care in either respect might prevent entirely the escape of cinders of the size that entered plaintiff’s eye, the evidence suggests that such facts might have an effect on the quantity of such cinders that might escape, or the distance to which they might he thrown, thus increasing the danger to one in plaintiff’s position with reference to the engine. Such evidence might be sufficient to warrant a finding that, but for the negligence, the injury would not have resulted.

Both appellant’s and appellee-’s motions for rehearing are overruled.

I-IUFE, O. J., not sitting.
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author: BUCK, J.

text:
    INTERNATIONAL LIFE INS. CO. v. STUART et al.
    (No. 8787.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 2, 1918.)
    1. Accord and Satisfaction <Sp»7(3) — Part Payment of Debt^-Mistake of Creditor.
    Where buyers of corporation stock knew that mistake was made in making too small the amount of the draft drawn on them for the purchase price, on payment of which they received the stock, and fraudulently concealed the fact, but afterwards admitted the mistake and promised to pay the balance due, they were liable to the seller for such balance.
    2. Equity <s=>8 — Mistake—Mutuality.
    A mistake which equity would relieve against must ordinarily be a mutual one, but, where a fact is known to one and not to the other, its suppression may constitute fraud.
    3. Pleading <®=t>33 — Mutual Mistake.
    An allegation of mutual mistake becomes immaterial where unilateral mistake of one party, known to the other party, is also sufficiently alleged.
    4. Contracts <S=10(4) — Mutuality — Acceptance by Performance.
    Where buyer promises to purchase a certain amount of corporate stock at a certain price per share, and the seller furnishes such amount under the agreement, the contract is not invalid for lack of mutuality, on the ground that at the time of the making of the offer the seller did not bind himself to furnish said amount of stock.
    5. Gamin® ®=12— Contract for Future Delivery.
    The fact that at the time of making the contract for future delivery the party binding himself to sell has not the goods in his possession, and has no means of obtaining them for delivery otherwise than by purchasing them after the contract is made, does not invalidate the contract.
    8. Appeal and Error ©=3934(2) — Review — Presumptions.
    It is the appellate court’s duty to give the strongest probative effect to the evidence in favor of the judgment rendered below.
    7. Contracts <®=>32S(1) — Defenses — Gross Negligence.
    Gross negligence in the seller’s mistake in making_ the amount of his draft on the buyer too small is no defense to an action based on a promise by the buyer to make good the mistake.
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by R. T. Stuart against the International Life Insurance Company and others. From judgment for plaintiffs, the named defendant appeals.
    Affirmed.
    Bryan, Stone & Wade, of Ft. Worth, for appellant. H. A. Turner, of Ft. Worth, for ap-pellees.
   BUCK, J.

On January 5, 1915, R. T. Stuart filed suit against Massey Wilson and J. W. Bryan, and on January 22, 1917, plaintiff filed amended petition in which the International Life Insurance Company of St. Louis, Mo., was also made defendant. Plaintiff alleged that in the matters, contracts, and agreements set forth in the pleading defendant Bryan acted for himself and as agent for his codefendants Massey Wilson and the International Life Insurance Company. He pleaded a contract or agreement in 1914, whereby plaintiff agreed to sell and defendant to purchase $50,000 of the capital stock, at $20 per share, of the American Home Life Insurance Company; that, in pursuance of said agreement, plaintiff delivered to defendants a large number of the shares of stock of the Americam Home Life Insurance Company, for which defendants paid him $20 per share, but that 275 shares of said stock so delivered to defendants were not paid for in full, but that he (plaintiff) only received $4,500, and that defendants still were due him thereon the sum of $1,000. He further alleged that, at the time of delivery of the 275 shares, the agent of plaintiff made a mistake in drawing the draft attached to the shares of stock, drawing said draft for the sum of $4,500 instead of $5,500; that defendants knew at the time of said mistake,, and fraudulently concealed the same from the plaintiff, and that plaintiff did not discover the mistake of his agent until later; that when plaintiff discovered the mistake he called the attention of the defendants thereto, and they acknowledged the existence of said mistake, and promised to pay the balance due on the purchase price of said stock. Defendants, after a general demurrer and general denial and special exceptions, specially denied that there was any mistake made in the drawing of the draft in the sum of $4,500, and specially denied that in the contracts and agreements as to the purchase of the stock of the American Home Life Insurance Company the defendant Bryan acted for and was the agent of the defendants Wilson and the International Life Insurance Company. Defendant Bryan, individually, pleaded that he was under no contract or obligation to purchase any given number of shares in the American Home Life Insurance Company, but that on August 29, 1914, said plaintiff was claiming that said defendant was under obligation to purchase some American Home stock from the plaintiff, and that upon said date the plaintiff wrote the defendant to the effect that he was drawing a draft upon defendant Bryan for $4,500 with 275 shares of the American Home stock attached to the draft, and that if said draft was paid that this would relieve the defendant of any further obligations under this contract; that later said draft was paid and the transaction closed. Defendant Bryan denied specially that any mistake was made in the drawing of the draft. The cause was submitted to the court without the intervention of a jury, and judgment was rendered against the International Life Insurance Company in the sum of $1,139, with 6 per cent, interest from judgment. The court found that the defendants Bryan and Wilson, in the negotiations and agreements with plaintiff, were not acting for themselves, but as the agents and representatives of the defendant International Life Insurance Company, and rendered judgment for said defendants Bryan and Wilson. The defendant International Life Insurance Company has appealed.

The trial court filed his findings of fact and conclusions of law, which we will not attempt to set out in detail, but, briefly, such findings of fact are to the effect that:

(1) In the summer and fall of 1914 the International Life Insurance Company, hereafter called Insurance Company, a corporation of St. Louis, Mo., attempted to acquire sufficient stock in the American Home Life Insurance Company, a corporation of Ft. Worth, Tex., to enable the former, by vote at stockholders’ meeting, to liquidate said last-named company and take over its assets; that in pursuance thereof, and as agent for said Insurance Company, said Bryan entered into a contract with Stuart, by which Stuart agreed to sell and Bryan agreed to buy $50,000, at $20 a share, of the American Home Life Insurance Company stock.
(2) That, prior to entering into said contract, plaintiff had discussed with defendant Massey Wilson, president of the Insurance Company, the matter of the proposed contract, and said Wilson represented to plaintiff that any contract made by him with Bryan would be carried out by the Insurance Company; that on July 20, 1914, a meeting of the stockholders of the American Home Life Insurance Company was held, for the purpose of deciding whether said company would liquidate through the said Insurance Company, and that prior thereto plaintiff, under his contract with Bryan, had delivered to the latter and to said Insurance Company about 1,000' shares of stock in the said American Home Life Insurance Company, some of which belonged to him (plaintiff) individually, and some to his friends, as was contemplated by the parties at the time they entered into the contract, and the defendants paid for same at the rate of $20 per share.
(8)That, on the date of said stockholders’ meeting', plaintiff delivered to said Bryan, under the contract aforesaid, 125 shares, of stock, which plaintiff had bought shortly prior thereto from one Allison, paying therefor $18 per share, but that said Bryan did not, at the time of said 'delivery by plaintiff, pay for said stock, but promised to do so immediately after the meeting. At this meeting the stockholders, voted against the plan to liquidate the American Home Life Insurance Company through the said Insurance Company, and Bryan left Ft. Worth, and later returned. the 125 shares of stock to plaintiff. The plaintiff refused to accept same, but insisted on said Bryan’s carrying out the contract as originally made.
(4) That the said Insurance Company did not abandon its plan to secure sufficient stock to liquidate the American Home Life Insurance Company, and on December 23, 1914, had secured sufficient stock to do so, and made a proposition to the stockholders, which was accepted, by which said Insurance Company acquired all the assets and assumed all the liabilities of the American Home Life Insurance' Company.
(5) That between July 20 and August 29, 1914, plaintiff purchased 150 shares of stock in said American Home Life Insurance Company, paying therefor $19, and defendant Bryan, acting on behalf of said Insurance Company, agreed to pay for same at $20 per share; that on August 29th said Stuart wrote said Bryan, advising him that he was drawing on him for $4,500, with 275 shares of the American Home stock attached, in which letter the following language was used: “When this draft is paid, this will relieve you of any further obligations under your contract with me. Otherwise I shall hold you to your contract, and will give you until September 4th to meet the draft, which will be one week from to-day.”
(6) That in writing said letter said Stuart dictated the same to his secretary, leaving the number of shares and the amount of the draft blank, telling his secretary to look up the number of shares on hand, and to figure the same at $20 per share, and to fill out said. blanks accordingly, and to draw on said Bryan for that amount; that, through an error of said secretary, the draft was made in the amount of $4,-500, and that amount was expressed in the letter as being the selling price of the stock to which the draft was attached.
(7) That several letters and telegrams passed between Bryan and Stuart between the drawing of the draft and the payment- thereof, and in these letters and telegrams the amount of the draft was mentioned, to wit, $4,500.
(S) That, before the payment of said draft,the plaintiff went to Arizona on business, and returned to his home in Dallas about December 20th, and that then, in checking up his accounts, he for the first time ascertained that a mistake of $1,000 was made in writing the letter of August 29, 1914, etc.; that immediately he phoned Mr. Bryan, who was then in Ft. Worth, and advised him that he had made a mistake, and Bryan admitted that he thought it was a mistake on the part of plaintiff, and then and there offered to return said stock to Stuart if the latter would return the $4,500; that .Stuart refused to accept this proposition.
(9)' On or about December 22d plaintiff met Bryan and J. L. Babler, one of the vice presidents of the said Insurance Company, in Ft. Worth, and there discussed the matters between them; that said Bryan again admitted the mistake, and told plaintiff that he would correct it as soon as the meeting for the purpose of liquidating the American Home Life Insurance Company had been held, which was to be the following day; that after some discussion, Stuart offered to return the-$4,500, and requested that his 275 shares of stock be returned to him then and there; that said Bryan and Babler stated to Stuart that they were going to have their meeting on the following day, and immediately thereafter the settlement would be corrected and cured, and said Babler stated that he would see that it was corrected.
(10) That said Stuart, relying on the representations and agreements of Bryan and Babler, permitted them to keep the stock, with the understanding that after the meeting they would pay him therefor at the rate of $20 per share.

From the foregoing facts the court found that- the said Insurance Company wanted to use said 275 shares of stock for the purpose of voting the same in the meeting to be held, and to prevent Stuart from using his influence against them in their efforts to effect the liquidation; that since said meeting the defendants have at all times refused to correct the mistake or pay the balance claimed by defendant.

Appellant’s first assignment is directed to the action of the court in overruling defendants’ special exception to that portion of plaintiff’s petition wherein the plaintiff undertook to allege mutual mistake. It is contended that the mere allegation of mutual mistake is the conclusion of the pleader, and that ⅛ is insufficient as a predicate for equitable relief, especially where the facts pleaded show that the mistake alleged was in fact not mutual, but unilateral, and on the part of the plaintiff alone. We are of the opinion that that portion of plaintiff’s petition, to wit, paragraph 4, wherein he asserts that the $4,500 had been paid by defendant and received by plaintiff under a mutual mistake of fact of plaintiff and defendant, does not in fact show a mutual mistake, but that it does allege a unilateral mistake on the part of plaintiff, and an acknowledgment on the part of the defendant that plaintiff had made a mistake in drawing the draft for $4,500 instead of $5,500; and that the further allegation in the paragraph contained, to the effect that defendants knew of this mistake on the part of plaintiff, and that plaintiff hereafter called the attention of the defendants to this error, and defendants acknowledged that they knew of this mistake, and promised to pay the balance due on the purchase price of the stock aforesaid, presents a ground for equitable relief.

In 2 Pomeroy’s Eq. Jur. § 856, it is said:

“There are two requisites essential to the exercise of the equitable jurisdiction in giving any relief, defensive or affirmative. The fact concerning which the mistake is made must be material to the transaction, affecting its substance, and not merely its incidents; and the mistake itself must be so important that it determines the conduct of the mistaken party or parties. * * * As a second requisite, it has sometimes been said, in very general terms, that a mistake resulting from the complaining party’s own negligence will never be relieved. This proposition is not sustained by the authorities. It would be more accurate to say that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief; but, even with this more guarded mode of statement, each instance of negligence must depend to a great extent upon its own circumstances. It is not every negligence that will stay the hand of the court. The conclusion from the best authorities seems to be that the neglect must amount to the violation of a positive legal duty. The highest possible care is not demanded. Even clearly established negligence may not, of itself, be a sufficient ground for refusing relief, if it appears that the other party has not been prejudiced thereby.”

In Taylor v. Godfrey, 62 W. Va. 677, 59 S. E. 631. it is held that:

“Mistake, within the rule making it a head of equity jurisdiction, has been defined as ‘some unintentional act, omission, or error, arising from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.’ Where an instrument is drawn and executed, professing or intending to carry into execution an agreement previously entered into, but which, by mistake of draftsmen, either as to fact or as to law, does not accomplish that purpose or violates it, equity will relieve from such mistake. Mere neglect or omission to read or know the contents of a written instrument before execution is not necessarily a bar to reformation thereof, but relief is proper in such case if the instrument, through mistake, fails to accomplish the purpose intended. See vol. 3, Words and Phrases.”

A mistake which equity would relieve against must ordinarily be a mutual one. Abbott v. Building Ass’n, 86 Tex. 467, 25 S. W. 620. But it is not always necessary, in order that equity may be invoked, that the mistake shall be mutual. Where a fact is known to one, and not to the other, its suppression may constitute fraud. Plaintiff alleged in his petition that the defendants, knowing that a mistake had been made in the amount for which the draft was drawn, fraudulently concealed from plaintiff the fact, but afterwards, admitting the mistake, agreed to pay him the balance due.

We think the pleadings sufficiently alleged a unilateral mistake, of a clerical nature, on the part of plaintiff’s secretary, the acceptance of the shares of stock and the payment of the draft in the smaller amount on the part of defendant with the knowledge that a mistake had been made, and a subsequent promise on defendants’ part to pay the balance due on the original contract price, and that in this respect the allegations present a cause of action. Hence the allegation of mutual mistake becomes immaterial, and the court did not commit reversible error in overruling defendants’ exception.

In the appellant’s second assignment an attack is made on the contract, as supported by the evidence, on the ground that the evidence shows that if Bryan, acting for appellant, had contracted to purchase from Stuart the $50,000 worth of stock, at $20 per share, there was no corresponding obligation on the part of plaintiff to deliver to defendants said amount of stock at said price; that, therefore, the contract is lacking in mutuality. In Rose v. R. R. Co., 31 Tex. 49, 59, 60, a quotation is .given from Parsons on Contracts, vol. 1, p. 375, which is pertinent to and answers the question here presented, and to which reference is here made. See, also, R. R. Co. v. Coyle, 123 Ky. 854, 97 S. W. 772, 99 S. W. 237, 8 L. R. A. (N. S.) 433, 124 Am. St. Rep. 384; Gile v. Motor Car Co., 27 N. D. 108, 145 N. W. 732, L. R. A. 1915B, 109. If Bryan, acting for appellant, promised to purchase $50,000 worth of the American Home Life Insurance Company stock from Stuart, and Stuart furnished such amount in compliance with the agreement, appellant would not be relieved of the force of the agreement to pay the agreed price for the stock on the ground that Stuart did not, at the time of the making of said offer, bind himself to furnish said amount of stock. As is said in a quotation in Anderson v. First Natl. Bank, 191 S. W. 936, 940:

“Accordingly, where one makes a promise conditioned upon the doing of an act by another, and the latter does the act, the contract is not void for want of mutuality, and the promisor is liable, though the promisee did not, at the time of the promise, engage to do the act; for, upon the performance of the condition by the promisee, the contract becomes clothed with a valid consideration, which relates back and renders the promise obligatory.”

See, also, Roberts v. Anthony, 185 S. W. 426.

The fact that at the time of making the contract for future delivery the party binding himself to sell has not the goods in his possession, and has no means of obtaining them for delivery otherwise than by purchasing them after the contract is made, does not invalidate the contract. Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed. 1196; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Merriam & Millard Co. v. Cole, 198 S. W. 1054, by this court, not yet officially reported; Burleson v. Burleson, 11 Tex. 7. Therefore we overrule appellant’s first and second assignments.

As preliminary to the discussion of further assignments in appellant’s brief, attacking the findings of fact filed by the trial court, we think it proper to say that this is one of those eases wherein the evidence is so conflicting upon the material issues that the appellate court would be bound by the findings of fact by the trial court or the verdict of the jury upon such issues of fact, and in this respect the reviewing court would be required to sustain the verdict and judgment rendered for either party. And while, in the instant case, there is sufficient evidence in the record upon the material issues involved which would justify the 'sustaining by us of a judgment for the appellant, yet we think by giving the strongest probative effect to the evidence in favor of the judgment rendered, as it is our duty to do, such judgment cannot be disturbed for failure of necessary proof.

Under tie third specifications of error, appellant urged that the court erred in his findings of fact, wherein he found that an unconditional contract of purchase was entered into by and between this defendant, acting through its agent, and R. T. Stuart, by the terms of which defendant absolutely contracted and agreed to purchase from said Stuart $50,000 worth of the capital stock of the American Home Life Insurance Company at $20 per share. Appellant insists that, under the undisputed evidence in this case, the trial court should have found that said contract was merely with reference t’o the stock owned by said Stuart at said time and by his friends at that time, and not with reference to stock subsequently purchased by Stuart from others than his friends. Stuart testified as follows:

“Mr. Bryan proposed that if I would agree to give him a letter saying that I had sold the stock to him that I owned in the company, that I could fix my own price on my own stock, provided it was within the bounds of reason. He wanted a letter from me stating that I had transferred my stock to the International, in exchange for their stock, with the understanding that, after they got charge of the company, that they would then pay me the money for my International stock. I told Mr. Bryan that I would not even entertain a proposition like that, and that the only proposition I would entertain would be that he should give me and my friends twenty dollars a share for our stock, and that I would want him to make a contract with me to take at least fifty thousand dollars’ worth of stock at twenty dollars a share; and he said he would not consider that proposition at all; that he would not agree to pay twenty dollars a share; that the International could not afford to pay that much, because he figured at that time that the liquidating value was about eighteen dollars or nineteen dollars a share, and that they would consider it. I says, ‘All right, Mr. Bryan, if you won’t consider that, there is no use for us to talk any further.’ I left him, and three days later he came back to my office in Dallas and said he had been thinking about the matter, and that he had seen Mr. Wilson, and that they had decided to pay me twenty dollars a share for fifty thousand dollars worth of stock.”

We think the evidence quoted is sufficient to sustain the finding of the court in the respect of which complaint is made. Hence we overrule the third assignment, and the fourth, which attacks the conclusion of law by the trial court to the effect that the plaintiff was entitled to recover of the defendants the sum of $1,000. This contention is based on the asserted fact that the evidence shows that by the letter of August 29, 1914, Stuart proposed to accept $4,500 in payment of the 275 shares of stock, and that, if any mistake was made by Stuart in drawing such draft, Bryan had no knowledge or notice that such mistake had been made, and that the payment of such draft by Bryan was a settlement in full of all contracts theretofore made between the parties. As to this feature, Stuart testified in part as follows:

“It is my testimony that Mr. Bryan admitted to me that he knew the draft of $4,500 was a mistake. He made that admission to me on the day of the meeting,- on December 20th. He said at that time it was a mistake, and that he would correct it as soon as the meeting was over; but after the meeting was over, and they had gotten what they wanted, he left.”

We think the above' quotation from the record is sufficient answer to the fourth assignment, and what we have heretofore said sufficiently disposes of the question, presented in the fifth assignment, which is likewise overruled.

Under the sixth assignment, appellant refers to the fact that plaintiff’s letter of August 29, 1914, to Bryan, was dictated and signed by plaintiff, and that in said letter he offered to compromise all claims held by him against Bryan on his alleged contract, - provided said Bryan would pay the draft for $4,500, and accept the certificates! representing the 275 shares of stock. Appellant urges that, taking into consideration the fact that several letters and telegrams passed between Bryan and plaintiff, in several of which communications the number of shares of stock involved in the deal and the amount of the draft drawn were mentioned, “it is uncon-ceivable to believe the testimony of R. T. Stuart to the effect that an error was made in that way in the face of the letters which passed between them, and therefore the court should not have found that such a mistake had been made.” It is true the facts mentioned by appellant would have amply sustained a conclusion contrary to that reached by the trial court. But the trial court heard the testimony, and we cannot say, as a matter of law, that the conclusion reached by him is not supported by the evidence.

We do not think any error is presented in appellant’s seventh assignment, wherein it contends that in no event could plaintiff below recover more than the reasonable market value of the 275 shares of stock, which it is insisted the evidence shows to have been $18 or $19 per share. The cause of action was predicated on an alleged express contract on the part of defendant to accept and pay for the stock at $20 per share. If a mistake was in fact made by Stuart or his secretary in drawing the draft, and if Bryan knew that such a mistake had been made, and subsequently promised to pay for the stock purchased, such promise would reasonably be construed to mean that he would pay the contract price for said stock.

Attack is made, under the eighth assignment, on the findings of fact by the trial court to the effect that in writing said letter of August 29, 1914, Stuart dictated the same to his secretary, leaving the amount of shares and the amount blank, telling his secretary to look up the number of shares on hand and to figure the same at $29 per share, and to fill out said blank accordingly, and to draw on said J. W. ©ryan for the amount. It is insisted that the undisputed evidence shows that Stuart knew the said number of shares he was promising to sell to said Bryan at the time of dictating said letter, and at said time, according to his evidence, dictated the number of shares to the stenographer, and only the amount was left blank, and not the number of shares which he was selling. Even if the state of evidence be as claimed by appellant, and the court was not justified in finding that both the number of shares and the amount of the draft were left blank, yet such mistake, if any, becomes immaterial, since the judgment rests on the theory that the mistake was made as to the amount of the draft.

It is urged in the ninth assignment that it is evident that Stuart was guilty of gross negligence in making the mistake claimed by him as to the amount for which the claim was to be drawn. We do not think, under the circumstances, it is a question of negligence. Even though plaintiff was negligent in the respect mentioned, if Bryan knew that a mistake had been made, at the time he accepted the stock and paid the draft, he could not avoid the effect of the mistake, by reason of said negligence on the part of plaintiff, esp-cially in view of said Bryan’s agreement and promise thereafter to right the mistake.

We think what has been said heretofore has sufficiently disposed of- the| questions raised, and the remaining assignments, -to wit, the tenth and eleventh, and therefore all assignments are overruled and the judgment is affirmed. Affirmed.

CONNER, C. J., not sitting. Serving on Writ of Error Committee at Austin.
      <®s=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

       — ,⅛ other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WADTHADD, J.

text:
    ATCHISON, T. & S. F. RY. CO. v. BERKSHIRE.
    (No. 804.)
    (Court of Civil Appeals of Texas. El Paso.
    March 1, 1918.
    Rehearing Denied March 21, 1918.)
    1. Death <⅜=35 — Jurisdiction—Transitory Action.
    The cause of action for wrongful death given by Comp. Daws N. M. 1884, §§ 2309, 2310, as amended by Daws 1891, c. 49, which must -be instituted in the name of the personal representative of the deceased, is transitory, and may be maintained in a state other than that of New Mexico.
    2. Death @=>31(3) — Right to Sue — “Personal Representative. ”
    The words “personal representative” ordinarily mean the executor or administrator of decedent.
    [Ed. Note. — Por other definitions; see Words and Phrases, First and Second Series, Personal Representative.]
    3. Executors and Administrators @=>518(1) — Ancillary Administrators — Appointment.
    Where the domiciliary administrator of resident of New Mexico who had met his death in that state, brought in Texas an action against a railroad company alleged to be liable, the appointment of an ancillary administrator in Texas is proper, for as, under Comp. Daws, N. M. 18S4, §§ 2309, 2310, as amended by Daws 1891, c. 49, an action for death can be maintained onlv by the personal representative, and the authority of the domiciliary administrator did not extend beyond New Mexico, administration in Texas, whereby the ancillary administrator could intervene, was necessary, this being particularly true as under the Texas statutes providing for distribution of the recovery the amount recovered could be distributed in accordance with the New Mexico laws. ¡
    4. Executors and Administrators @=3518(1) —Ancillary Administration.
    Under Const, art. 5, § 16, declaring that the county court shall have the general jurisdiction of a probate court and shall grant letters testamentary and of administration and transact all business appertaining to estates of deceased persons, the county court, though a special court with defined powers, has, sitting as a court of probate,_ jurisdiction to grant ancillary letters of administration when necessary.
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Petition by W. S. Berkshire for appointment as ancillary administrator and personal representative of the estate of Robert S. Her-rington, deceased. After appointment the Atchison, Topeka & Santa Fé Railway Company intervened, filing its protest. Prom a judgment of the district court which affirmed the action of the probate court in denying the protest, intervener appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Turney, Culwell, Holliday & Pollard, of El Paso, for appellant. Geo. E. Wallace and W. 5. Berkshire, both of El Paso, for appellee.
   WADTHADD, J.

The appellee, W. S. Berkshire, on January 29,1917, filed in the probate court of El Paso county, Tex., his application for appointment as ancillary administrator and personal representative of the estate of Robert S. Herrington, deceased, representing therein that Robert S. Herrington, on the 28th day of February, 1916, through the negligence of appellant, was killed at Santa Rita, N. M.; that he died intestate, and left a surviving wife and three minor children; that the estate has a suit and cause of action against the appellant by reason of the negligence causing the death of deceased; that on the 15th day of May, 1916, the .probate court of Grant county, N. M., appointed Fred F. Fletcher administrator of said estate, and that said Fletcher, as such administrator and personal representative of Herrington, deceased, instituted in the district court of El Paso county, Tex., a suit against the appellant for damages growing out of the death of said Herrington; that there is a doubt as a matter of law as to the right of such foreign administrator to prosecute suit in the courts of the state of Texas, but that by reason of the filing of said suit the same constitutes an estate in El Paso county, Tex., of the probable value of $5,000, and that there is a necessity for the appointment of an ancillary administrator and personal representative of the estate of Herrington, deceased, with authority to intervene in the suit filed and prosecute same to final termination. The wife of deceased waived her right to be appointed administrator and personal representative oí the estate. The probate court of said El Paso county appointed said Berkshire administrator and personal representative of the estate of Herrington, deceased, in this state, with power to either prosecute 'said suit as ancillary administrator and personal representative against appellant in the Texas courts, or to intervene therein, and made other orders as to his duties as ancillary administrator. Said Berkshire accepted the appointment and gave the required bond and otherwise qualified and filed an inventory of the estate which showed that the only property owned in this state was the said suit against appellant then pending in the district court. Thereafter appellant filed in the probate court its protest and intervention, representing that it was interested in the estate and the administration thereof, that the accident out of which the suit and claim against it was predicated occurred in Grant county, N. M., where said Herrington died, and that administration should and could be had only in that county or elsewhere in that state, and giving, among others, substantially the following reasons:

The deceased was a resident of Grant county, N. M., had never lived in El Paso county, Tex., and had no property of any kind in any county of Texas; that he was not living in Texas at the time of his death, nor did his family reside in Texas; that deceased was not an employé of appellant; that the right of action against it did not arise under what is known as the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Oomp. St. 1916, §§ 8657-8665]), because it appeared that the sole purpose of the administration was the proposed intervention in the said suit then pending, that there could be no administration in El Paso county, Tex., having for its sole object the collection of damages against appellant where the accident causing said death occurred without the state, and where deceased and his family were not residents of Texas at the time of the death of Herrington, and where deceased was not an employé of said railway company, and the right of action was not governed by the federal Employers’ Liability Act, and where appellant was not doing business in El Paso county, and had no agent and no line of road in said county. The parties agreed to and the material facts are: That said Fletcher, as administrator and personal representative of the estate of Herrington, deceased, filed in the district court of El Paso county a suit for damages against the appellant for the negligent killing of said Herrington, and that said suit was then pending on the docket of said court 'at the time the order was made by the county court of El Paso county, Tex., appointing Berkshire administrator and personal representative of the estate of Herrington, deceased ; that Berkshire in his representative capacity filed an application in said suit in the district court asking leave to intervene and make himself party plaintiff in said cause, which application was granted by the court; that citation was' issued in said court and service had upon certain parties in El Paso county and elsewhere in Texas, alleged by ap-pellee to be local agents of appellant; that Herrington, deceased, did not reside in Texas, and never had resided in El Paso county; that deceased owned no property in El Paso county at the time of his death, and that his next of kin did not reside in El Paso county. The pending suit in the district court of El Paso county claiming damages against appellant for the negligent killing of said Herrington was the only suggestion of property owned by the estate in this state. Probate proceedings in Grant county, N. M., showing the appointment and qualification as administrator and personal representative of E'red F. Fletcher in the matter of the estate of Herrington were shown. Three sections of an act of the Twenty-Ninth Legislative Assembly of New Mexico (page 101) amending sections 2309 and 2310 of the Compiled Laws of New Mexico of 1884 appear in the record. These sections as amended read:

“Sec. 2309. Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act or neglect or default is such as would, if death had not ensued, have entitled the pajky injured to maintain an action and recover damages in respect, thereof, then, and in every such case, the person who or the corporation which would have been liable, if death had not ensued, shall he liable to an action for damages, notwithstanding the death of the person injured.”

Said section 2310 reads:

“Every such action as mentioned in the next preceding section shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or par-, ties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister or child or children of the deceased child, but shall be distributed as follows. * * * ”

The rest of the section provides the manner of distribution of any proceeds obtained through any judgment in such action.

Section 3 of the act repeals all acts and parts of acts in conflict, and provides that the act shall take effect from its passage. The contest of appellant in the probate court was overruled. On appeal to the district court contest of appellant was again overruled. We think the above a sufficient statement of the facts which are undisputed.

It is the contention of the appellant presented under several propositions that under the above facts and other facts presented in the record, but not considered essential to a decision of the issues to be decided, the probate court of El Paso county, Tes., is without jurisdiction to appoint an ancillary administrator and personal representative of the estate of Herrington, deceased, and that the order of the probate court of El Paso county and the district court are void.

We are not called upon in this proceeding to determine the merits of the suit filed in the district court of El Paso cbunty by Fletcher, administrator of the estate of Herrington. The right of recovery for damages in that suit is governed by the laws of New Mexico, and, so far as the record in this case shows, the right of recovery is controlled by the two sections of the New Mexico statutes above quoted. Under the two sections of the New Mexico laws quoted a suit to recover damages for the alleged negligent killing of Herrington by appellant must be prosecuted in the name of the personal representative of the estate of Herrington. The cause of action arising under the sections of the law quoted is transitory, and may be brought in any jurisdiction in which the appellant is found. So far as this proceeding is concerned, we think we need not go into a discussion of the question as to whether appellant is doing business in El Paso county, or has a local agent here, since appellant voluntarily entered its appearance in the probate court contesting the appointment by that court of appellee as administrator and personal representative of said estate. The important and central inquiry seems to he as to the jurisdiction of the probate court of El Paso county in the proceedings had in that court to appoint an ancillary administrator of the estate in this state; the sole object and purpose of such appointment being that the person appointed could by virtue of such appointment intervene in the pending suit and represent the estate of Her-rington. The rule or policy in the various states on the question involved, so far as we have been able to gather from the opinions of the courts, is not harmonious. A general discussion of the question in an effort to discover the various points of divergence would render the opinion entirely too lengthy and serve no good purpose. Ruling Case Law, under the titles “Death,” found in volume 8, and “Executors and Administrators,” in volume 11, gives a general discussion of the subject and reference to many authorities both state and federal. The articles of the statute of New Mexico quoted above provide that the action to recover damages thereunder shall be brought by and in the name of the “personal representative” of the deceased person. An administrator represents the deceased, and the words “personal representative” ordinarily mean the executor or administrator, so that in order to comply with the requirement of the statute in providing a personal representative to intervene or prosecute the suit filed a form of administration was had in El Paso county auxiliary or ancillary to the administration of the estate of Herrington in New Mexico. It seems to be universally held, .from necessity, •that in the same estate there may be two or more administrations, one domiciliary and the other ancillary. It also seems to be the general rule that, if there are assets or claims in another state than that in which the principal administration is had, ancillary administration may be obtained in the state in which the asset or claim may be. Letters of administration have no legal force beyond the state in which they are granted. Hence the only way of collecting personal assets located in a jurisdiction other than that in which the decedent had his domicile at the time of his death is by auxiliary or ancillary administration. It is claimed that, because the asserted cause of action made the basis of the ancillary administration proceeding did not arise in this state nor under any law of the United States nor of this state, there is no authority for the appointment of an ancillary administrator in this state.

There is no express provision in the stat- . utes of this state conferring jurisdiction on the probate court to appoint an ancillary administrator or personal representative where ; original jurisdiction has been obtained over said estate in this state or in another state. Appellee refers us to a number of decisions of the federal courts, but it must not be overlooked that in federal courts the issue is one of general jurisprudence, upon which the state decisions are not conclusive. Texas & Pacific Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Lauria v. E. I. Dupont, De Nemours & Co., Inc. (D. C.) 241-Fed. 687, and cases there cited. It has been said that, whatever latitude has been per-, missible in state courts refusing jurisdiction on ground of local policy, the rule laid down for federal courts by the Supreme Court in Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123, seems to leave no room for mere questions of comity, save as they may be involved in the underlying principles of jurisprudence. Greaves v. Neal (C., C.) 57 Fed. 816. .But in the federal cases to which we are referred we find no case discussing the jurisdiction and powers of the probate court of this state, or of those of any other state under statutory provision similar to our own. Section 16, art. 5, of the Constitution of this state, in part, provides:

“The county court shall have the general jurisdiction of a probate court. They shall * * * grant letters testamentary and of administration ; * * * transact all business appertaining to deceased persons,” etc.

A distinction is sometimes made between courts created by statute, and not by the Constitution, holding that courts created by statute solely are tribunals of special and limited jurisdiction only, and having only such powers as are directly conferred on them by legislative enactment and such as may be incidently necessary to the execution of those powers. But it is fundamental that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction. In constitutional governments their jurisdiction is conferred by the provisions of the Constitution and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both théir nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691. See, also, Revised Statutes 1911, art. 3298; Gulf, C. & S. F. Ry. Co. v. Cooper, 191 S. W. 583, and cases there cited.

As said by Judge Roberts in Green v. Rugely, 23 Tex. 548:

“The practice is, as it is presumed from the authorities, to grant administration upon unad-ministered effects found there, when it is necessary. * * * This power to grant ancillary administration is not limited within tho scope of express statutory regulation.”

The Supreme Court in that case held, in substance, that the power of a probate court to administer should not depend upon mere contingencies, but upon the existence of property within the state, whose condition, in reference to the rights of parties in relation to it, calls for the application of our probate laws, for its preservation and distribution, and quoted with approval the following from Story, Conflict Laws, § 513:

“The right of a foreign executor or administrator to take out such new administration is usually admitted as matter of course, unless some special reason intervene to vary or control it; and the new administration is treated as merely ancillary or auxiliary to the original foreign administration, so far as regards the collection of the effects and the proper distribution of them.”

Without further quoting from that case, we refer to it for a discussion of the powers of the probate court in this state in an ancillary or auxiliary proceeding independently of statutory provision. Appellant refers us to Cooper v. G., C. & S. F. Ry. Co., 41 Tex. Civ. App. 596, 93 S. W. 201; Rivera v. A., T. & S. F. Ry. Co., 149 S. W. 223; S. L. S. W. Ry. Co. v. Smitha, 190 S. W. 237. We need not review those cases, as the facts of each of them are so different from the case at bar as to make them inapplicable to the facts of this case. The statutes of this state give a sufficiently similar right of action and distribution of the funds received to that of the sections of the New Mexico laws quoted above, with respect to actions to recover damages resulting in death by wrongful act or neglect of another, to enforce the provisions of the New Mexico statutes in this state. We have concluded that the probate court and the district court were not in error in granting the application for the appointment of an administrator and in authorizing the administrator appointed to prosecute the suit against appellant.

The case is affirmed.
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