text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. v. THOMPSON et al.
    (No. 1699.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 9. 1917.
    Rehearing Denied Feb. 22, 1917.)
    1. Beneficia!, Associations &wkey;»10(7) — Expulsion of Membebs — Civil Liability.
    Recovery can be had as for procuring wrongful expulsion of a member from an order where, though it was nominally placed on a valid ground, a violation of his obligation as a member, those voting therefor did so in bad faith, not believing him guilty.
    [Ed. Note. — Eor other cases, see Beneficial Associations, Cent. Dig. § 20.]
    2. Trial <&wkey;352(5) — Special Issues — Assumption of Pact.
    A question which, after defining exemplary damages, asks the jury, bearing in mind such explanation, to state what sum, if any, they determine should be awarded as exemplary damages, does not assume that plaintiff is entitled to recover exemplary damages.
    [Ed. Note. — Por other cases, see Trial, Cent. Dig. § 841.]
    3. Appeal and Error (@=»1099(10) — Review— Amount of Recovery — Former Appeal.
    Contention that award of punitive damages is excessive should not be sustained, a greater amount having, on a prior appeal, been held not excessive.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4379.]
    4. Damages &wkey;>94 — Exemplary Damages —Motives of Jury.
    It cannot be said that improper motives moved the jury in finding $1,250 exemplary damages against the corporate defendant, while finding only $50 against each of the individual defendants, they being entitled under the evidence to find the corporation induced the individuals to act, and so was more blamable.
    [Ed. Note. — Por other cases, see Damages, Cent. Dig. §§ 216, 218, 219, 221.]
    5. Associations &wkey;>20(2) — Actions—Parties.
    By express provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6149, an unincorporated association doing business in the state may be sued in its name, without making its members parties.
    [Ed. Note. — Por other cases, see Associations, Cent. Dig. §§ 37-40.]
    6. Appeal and Error <&wkey;232(l) — Preservation of Orounds of Review — Refusal of Peremptory Instructions.
    Refusal of a requested peremptory instruction will be reviewed only on the ground on which it was requested.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1368, 1430; Trial, Cent. Dig. § 691.]
    Appeal from District Court, Smith County; R. M. Smith, Judge.
    Action by W. Z. Thompson against the St. Louis Southwestern Railway Company of Texas and others. Prom a judgment for plaintiff, certain defendants appeal.
    Affirmed.
    This is the third appeal of this cause. The pleadings of Thompson, the plaintiff below, were the same as they were on the second trial, reported in 108 S. W. 453, and 102 Tex. 89, 113 S. W. 144, 19 Ann. Cas. 1250. The pleadings of the other parties were not materially different, so far as they are of importance in disposing of the contentions made on this appeal; nor was the testimony on the last trial materially different, so far as it affects those contentions. A full statement of the case is given in the opinions in 108 'S. W. 453, above referred to, and Thompson v. Grand International Brotherhood of Locomotive Engineers, 41 Tex. Civ. App. 176, 91 S. W. 834. The statement below, copied from the opinion of the Supreme Court in 102 Tex. 89,113 S. W. 144, 19 Ann. Cas. 1250, which settled the more important of the questions of law presented by the assignments on this appeal, and the statement following it, together are believed to be a sufficient statement of the case made by* the record now before us:
    “Thompson instituted this suit in the district court of Smith county against the St. Louis Southwestern Railway Company of Texas, the Grand International Brotherhood of Locomotive Engineers, J. J. Bartholomew, W. H. MeCorkle, G. L. MeCardell, M. M. Bartholomew and R. J. McCool, to recover of them damages occasioned to the plaintiff by wrongfully and maliciously causing him to be expelled from the said order of the Brotherhood of Locomotive Engineers. There was a division of the order of the Brotherhood of Locomotive Engineers at Tyler, No. 201, and the plaintiff, Thompson, and the different individual defendants were each and all members of that division. The petition charged that the railway company acting by Green, a general officer of that corporation, J. J. Bartholomew, W. II. MeCorkle, G. L. MeCardell, M. M. Bartholomew and R. J. McCool, entered into a conspiracy and combination whereby they agreed and undertook to secure the expulsion of the plaintiff from the said Brotherhood, and, in pursuance of that confederation and conspiracy and to accomplish that purpose, the said individual defendants made out, deposited and filed with the said division No. 201 of the Brotherhood of Locomotive Engineers at Tyler the following charges against the plaintiff: ‘Specification of charges. Por writing to Mrs. A. H. Pennyman and urging her to sue the Cotton Belt Railway for the death of her husband. Por going on the witness stand in the Bolton Case and testifying against the Cotton Belt Railway Company to the injury of the other brothers and causing the Brotherhood at large to lose prestige with the Cotton Belt Railway Company.’ It is alleged that said charges were false and that they were knowingly and maliciously made and presented to the said division. Thereafter the said division’No. 201 of the said Brotherhood notified the petitioner and placed him upon trial on the said charges. It is alleged that the prosecution of him in the division was maliciously done by the said defendants, and that the members of the said division had no reasonable ground to believe that he was guilty of said charges and did not believe that he was guilty thereof, but that the said proceeding was prosecuted against him for the unlawful purpose of deterring him from appearing when summoned as a witness in cases against the Cotton Belt Railway. Upon a trial had before the said division the charges were sustained and the petitioner was expelled therefrom. Petitioner appealed from the said decision to P. M. Arthur, Grand Chief Engineer, who, notwithstanding the unjust and false charges made against the plaintiff, sustained the action of said division. And, in pursuance of said expulsion, the plaintiff’s name was printed as one who had 'been expelled from the said order in a journal of the said International Brotherhood and was circulated largely in the United States, Canada and Mexico, greatly to his humiliation and detriment. The plaintiff in his petition alleged with particularity the' different elements of injury that he sustained by reason of the action of said division procured by the malicious and willful conspiracy and .combination of the defendants; among other things he alleged that he held a policy of insurance in the said order for $1,500 upon which he had paid large sums for a number of years, which by the rules of the order was forfeited upon his expulsion and as consequence thereof. He also alleged that as a member of said order he was entitled to and had a traveling card which entitled him to ride free upon the trains of the different railroads in the United States, Canada and Mexico, which was also forfeited as a consequence of said expulsion. He alleged mental suffering and humiliation by reason of the unjust and unlawful action of the said defendants.”
    The suit, so far as it was against M. M. Bartholomew and R. J. McCool, was dismissed before the last trial, they having died. On that trial special issues were submitted to the jury. Those issues and the findings on same, none of which is attacked as without the support of testimony, are shown by an excerpt from the record as follows:
    “Question No. 1: The specifications of charges against plaintiff were: First, for writing to Mrs. A. H. Pennyman and urging her to sue the Cotton Belt Railway for the death of her husband; second, for going on the witness stand in the Bolton Case and testifying against the Cotton Bolt Railway to the injury of other brothers and causing the brotherhood at large to lose prestige with the Cotton Belt Railway. You will in answer to this question state whether Thompson was expelled on one or both grounds in the specification; if upon only one, state which one.
    “Answer to Question No. 1: Both Grounds.
    “Question No. 2: If you have answered question one by saying that the local division No. 201 expelled plaintiff upon the second ground in the specification you need not answer this question; but if you answer said question by stating that said division expelled plaintiff upon either the first ground or upon both grounds, then you will answer the following: Has plaintiff shown by px-eponderance of the evidence that the members of division 201 of the Brotherhood of Locomotive Engineers who tried and expelled him voted to expel him, not in good faith and not in fairness toward him and not believing and holding that the signing with Nichols of the letter to Mrs. Pennyman, under the circumstances attending it, constituted unbecoming conduct or a violation of his obligation under the constitution and laws of the order?
    “Answer to Question No. 2: Yes.
    “Question No. 3: If you have answered cues-tión No. 1 that the local division expelled Thompson on the second ground in the specification of charges, or if you have answered that they expelled him on the first or both grounds, and have answered question 2 in the affirmative, then you will answer: Did J. J. Bartholomew, W. H. McCorkle and G. L. McOardle, or either of them, by act or woi-d, procure or aid in procuring such expulsion (if you answer in the affirmative, then name the one or ones who did so)?
    “Answer to Question No. 3: Yes; J. J. Bartholomew, W. II. McCorkle, and G. L. Mc-Cardle.
    “Question No. 4: Has Thompson shown, by a preponderance of the evidence, that the defendant St. Louis Southwestern Railway Company of Texas, acting through W. E. Green, its second vice president and general superintendent, conspire with one or more of the members of division 201 of the Brotherhood of Locomotive Engineei's to have Thompson expelled from the order? _ (If you answer this question in the affii-mative, then give the name or names of the member or members of said division with whom said Green so conspired.)
    “Answer to Question No. 4: Yes; J. J. Bai’-tholomew, O. M. Harrington, and Sam Meyers.
    “Question No. 5: If you have in answer to question 1 stated that plaintiff was expelled on the second ground in the specification of charges, or upon the first, or upon both, and have answered question 2 in the affirmative, then as-cex’tain from the evidence and state in answer to_ this question what sum of cash money will fairly compensate plaintiff for such damages, if any, as you may find from the evidence proximately resulted to him from the loss of the traveling card, insurance policy and such other benefits, if any, as inured to plaintiff by reason of his membership in the ordei-, and that will fairly and reasonably compensate him for such humiliation, if any; and mental suffei-ing, if, any, and loss and injury, if any, to his character and reputation as you find proxjmately flowed to him from the publication of his expulsion in the journal.
    “Answer to Question No. 5: Five Hundred Dollars ($500.00).
    “Question No. 6: Exemplary damages are damages allowed by way of punishment for a wrongful act done by one with malice, and by “malice” is meant a wrongful act, done intentionally, without just cause or excuse, in violation of the rights of another. Now, bearing in mind this explanation, in answer to this question you will state: What sum of money (if any) in your sound judgment you determine should be awaixled plaintiff as exemplary damages? (And also state against which defendant or defendants,_ if any, such damages should be awarded, naming the defendant or defendants and the amount you award against such defendant or defendants.)
    “Answer to Question No. 6: Grand Intex--national Brothoi’hood of Locomotive Engineers two hundred fifty dollars ($250.00); St. Louis Southwestern Railway Company twelve hundred fifty dollars ($1,250.00); J. J. Bartholomew fifty dollars ($50.00); W. H. McCorkle fifty dollai’s ($50.00); and G. L. McCai-dle fifty dollars ($50.00).
    “Also following question propounded by the attorneys for defendants:
    “Did P. M. Ai-thur, Grand Chief Engineer, in acting on the appeal of W. Z. Thompson, do so in good faith and upon the record and letters written by Thompson and Bartholomew?
    “Answer: No.”
    The judgment rendered on the finding was in favor of Thompson against the Grand International Brotherhood, the St. Louis Southwestern Railway Company of Texas, J. J. Bartholomew, W. H. McCorkle, and G. L. McCardell for the sum of $500 as actual damages, and in favor of Thompson for $1,-650 as exemplary damages, which was apportioned as follows: Against the Brotherhood $250; against the railway company $1,-250; and against Bartholomew, McCorkle, and McCardell $50 each.
    Marsh & Mcllwaine, J. A. Bulloch, and J. W. Fitzgerald, all of Tyler, E. B. Perkins and Ben C. Cain, both of Dallas, and Daniel Upthegrove, of St. Louis, Mo., for appellants. Simpson, Lasseter & Gentry, of Tyler, for appellee.
   WILLSON, O. J.

(after stating the facts as above). Of course it is not contended that the Brotherhood had either a right or power to expel appellee for testifying as a witness in the Bolton Case. On the contrary, appellants concede, as we understand them, that if appellee was expelled on that ground alone the action of the Brotherhood was a nullity.

The contention is that the court erred in rendering judgment against appellant because the jury found that appellee was not expelled on that ground alone, hut also on the ground that he signed with Nichols the letter the latter wrote to Mrs. Pennyman. If the finding of the jury that appellee was expelled for signing the Pennyman letter should alone be looked to in determining the contention, it should be sustained, notwithstanding it appears therefrom that appellee also was expelled for testifying as a witness in the Bolton Case. For the Supreme Court, on a former appeal of the cause, reported in 102 Tex. 98, 113 S. W. 147, 19 Ann. Cas. 1250, ruled that if the Brotherhood

“in good faith fairly and honestly passed upon the testimony submitted to them and found Thompson guilty of violating his obligation, or the constitution and laws of the order, then their action would be final and conclusive of the matter, and the plaintiff could not recover in this case because of his expulsion from that order, nor for any of the consequences flowing from it, although they may have found him guilty on the second charge also.”

But, in determining the contention, that finding must be considered in connection with the one following it, to wit, that the members of the Brotherhood who voted to expel appel-lee did not do so in good faith and in fairness toward him,

“believing and holding that the signing with Nichols of the letter to Mrs. Pennyman, under the circumstances attending it, constituted unbecoming conduct or a violation of the obligation under'the constitution and laws of the order.”

The finding just set out means, we think, that the members who voted to expel appel-lee for signing the Pennyman letter “believed” and “held,” when they did so, that his act in signing if was not such “unbecoming conduct” or such “a violation of his obligation” as a member of the order as authorized his expulsion. If they so “believed” and “held,” then it is plain that they did not in fact expel him for that, but merely used it as a pretext to conceal the real ground on which they expelled him. The two findings construed together we think bring the ease within a rule which the Supreme Court, on the former appeal above referred to, stated as follows:

“If, * * * the members of that order did not act in good faith and did not exercise their honest judgment in coming to the conclusion that by writing the Pennyman letter Thompson was guilty of a violation of his obligation or the constitution and laws of the order, but used it as a pretext by which to expel him on account of the second charge made against him, then their action would be void and Thompson would 'be entitled to recover.”

We do not agree that the court, in the sixth question submitted to the jury, assumed that appellee was entitled to a recovery against appellants of exemplary damages. Reasonably, the jury must have understood that before they were authorized to award appellee such damages they must find that he was wrongfully expelled from the Brotherhood and without just cause or excuse for his expulsion.

On a former appeal of the cause it was insisted that the judgment against appellant St. Louis Southwestern Railway Company, in so far as it was for exemplary damages, was grossly excessive. • On that appeal the judgment against said appellant was for $500 as actual damages, as it is on this appeal, and for $2,000 as exemplary damages, while on this one it is. for only $1,250 as exemplary damages. On said former appeal it was held by the Court of Civil Appeals that the judgment was not excessive as claimed, 108 S. W. 457. The judgment for exemplary damages against said appellant on this appeal being for $750 less than the sum held on the former appeal not to be excessive, we do not think the contention presented by the sixth assignment that it is for an excessive amount as exemplary damages should be sustained. The argument advanced in support of that assignment, that the finding in appellee’s favor against each of the individuals sued was for the sum of only $50 as exemplary damages showed that the jury was moved by improper motives to find the sum they did against the appellant railway company, is not believed to be tenable. The jury might have believed from the testimony that the course pursued by appellant through its manager Green induced the individual appellants to act as they did, and therefore that it was more blamable than they were for the wrong done appellee.

Appellant Grand International Brotherhood requested the court to peremptorily eharge the jury to find in its favor, on the ground that it was

“not a corporation, joint-stock association or partnership, but was a voluntary association or society composed of individuals not made parties to this suit,”

and complains of the refusal of the court to give the requested charge. It' appeared that said appellant was an unincorporated association doing business in this state through its divisions, one of which was the division from which appellee was expelled. As the statute (article 6149, Vernon’s Statutes) authorized a suit to be maintained in the courts of this state against such an association, it is clear that the court did not err when he refused on the ground assigned to instruct the jury as requested. We need not inquire whether said appellant was entitled on other grounds' to have the jury so instructed. San Antonio Traction Co. v. Emerson, 152 S. W. 468.

The judgment is affirmed.
      <S=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    MERCHANTS’ RECIPROCAL UNDERWRITERS OF DALLAS v. FIRST NAT. BANK OF CANADIAN et al.
    (No. 1119.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 21, 1917.)
    1. Insurance <&wkey;6C5(l) — Action on Policy-Evidence — Sufficiency.
    ‘ In an action on a fire policy, testimony of a witness held not to show that defendant company complied with Acts 33d Leg. c. 109, authorizing contracts between individuals, firms, or corporations providing indemnity between each other for fire loss.
    2. Courts <&wkey; 170 — County Court — Jurisdiction — Amount Claimed.
    In an action in the county court on a policy of fire insurance, where the petition asked for judgment for $1,000, the amount of the policy, and further general and special relief, while it might have been construed as authorizing the recovery of interest in addition to $1,000 as a part of the judgment if the court had jurisdiction, it will be construed as a demand for judgment for $1,000, so that the county court had jurisdiction of the case.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427.]
    3. Appeal and Error t&wkey;302(l) — Motion fob New Trial — Sufficiency.
    Where defendant by his plea objects to the court’s jurisdiction, this issue must first be determined before a hearing on the merits, so that assignments of error in overruling a plea to the jurisdiction will not be stricken because the motion for new trial and the proof thereunder did not show a defense to the cause of action declared upon.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1746.]
    4. Insurance <&wkey;629(l) — Actions on Policies — Pleading.
    That suit was instituted against defendant by name, alleging that it was doing an insurance business in the state of Texas, with an office and place of business in Dallas county, Tex., in the city of Dallas, with a person named as manager and attorney, upon whom service could be had was sufficient to show a legal liability by a legally existing association.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1575, 1584.]
    5. Partnership <&wkey;41 — Actions on Policies —Unorganized Company.
    If defendant reciprocal insurance association was not organized under Acts 33d Leg. c. 109, and issued a policy when the law did not authorize it to do business, those acting m its name might lie personally liable and should be ■sued individually at their places of residence, since a partnership cannot sue or be sued as such, but actions must be brought by and against the members of the partnership.
    [Eld. Note. — For other cases, see Partnership, Cent. Dig. §§ 56, 58, 59, 74.]
    6. Contracts &wkey;127(4) — Insurance &wkey;615, 618 — Actions—Venue—Agreement Fixing Venue.
    In view of Rev. St. 1911, art. 1911, authorizing an agreement to fix the venue of an action in a particular county, a provision in a power of attorney and agreement for the formation of a reciprocal fire insurance association that all suits on policies shall be brought in the county where the offices and business of the association are located was reasonable, and while the fact that a suit is instituted in a county other than that agreed upon will not defeat the policy or be a defense in bar of recovery thereon, upon a plea of privilege the agreement will be enforced by changing the venue.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 612; Insurance, Cent. Dig. §§ 1530, 1532-1534, 1536-1539.]
    *7. Insurance i&wkey;646(l) — Action on Policy-Evidence — Burden of Proof.
    Where defendant reciprocal insurance association established its domicile and an agreement that actions against it on policies should be brought only in such domicile it then devolved upon the plaintiff to show that defendant was not such an organization as could then do business at that place or any other under the laws •of the state.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1649.]
    8. Insurance c&wkey;618 — Actions—Venue—Residence of Defendant — Assignment as Affecting Venue.
    In view of Rev. St. 1911, art. 1830, subd. 4, providing that the assignment of a chose in action will not entitle the subsequent holder to institute suit thereon in any other county than that in which the suit could have been prosecuted if no assignment had been made, the fact, that a fire insurance policy had been assigned did not give the assignee the right to institute suit in a county other than that specified by the agreement of the assignor.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1536-1539.]
    Appeal from Hemphill County Court; J. L. Jennings, Judge.
    Suit by the First National Bank of Canadian and others against the Merchants’ Reciprocal Underwriters of Dallas. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Fisher & Palmer, of Canadian, and Lively & Goggans, of Dallas, for appellant. Hoover & Dial, of Canadian, for appellees.
   HUFF, C. J.

The appellee National Bank, as assignee of the Gerlaeh Mercantile Company, sued the appellant insurance company, together with the Gerlaeh Mercantile Company, in the county court of Hemphill county, on a fire insurance policy. It is alleged that the Merchants’ Reciprocal Underwriters of Dallas, Tex., were doing an insurance business in the state of Texas, with an office in Dallas county, Tex., in the city of Dallas, with Edward T. Harrison’ as manager and attorney, and upon whom service may be had. It is alleged that on or about the 6th day of April, 1916, the appellant issued a policy to the Gerlaeh Mercantile Company on a stock of merchandise, insuring against loss or damage by fire; that on the 8th day of April, 1916, the merchandise insured was totally destroyed, and that it was of the probable value of $40,000, and that the Gerlaeh Mercantile Company performed all of the conditions required of it by the terms of the policy and in due time, and on the date of the fire gave notice to the insurance company and proof of loss by fire, demanding payment of the sum of money evidenced by the policy, whereby the insurance company became justly indebted, bound, and liable to pay unto the Gerlach Mercantile Company the sum of $1,000; that it failed and refused and still fails and refuses to pay that sum or any part thereof; that after the fire and the notice above set out the Gerlach Mercantile Company assigned and delivered to the appellee bant, for a valuable consideration, all of its rights, title, and interest in and to the policy, according to the terms and conditions thereof —and alleges that by reason of the guaranty of the Gerlach Mercantile Company it also became liable and bound to plaintiff for the amount of said policy, according to its face and reading, concluding with, the following prayer:

“Wherefore, premises considered, plaintiff prays * * * that after a final hearing hereon it have judgment against the said defendants and of each of them for the sum of $1,000 and all costs of this suit, and for such other and further relief, general and special, in law and in equity, to which it may be justly entitled and in duty bound will ever pray.”

In due time the Merchants’ Reciprocal Underwriters filed its plea of privilege, alleging that it is an unincorporated voluntary association engaged in the business 8f inter-insurance against loss by fire, whose residence, domicile, and office is located in the county of Dallas, state of Texas, and that Edward T. Harrison is the duly constituted and acting manager and attorney for the company, and duly authorized to represent and answer for it in the case. The plea properly alleges its domicile and residence in Dallas county and negatives its residence in Hemphill county, as required by the statutes, and contains the following further allegations :

“In further support of this plea of privilege, said defendant, the Merchants’ Reciprocal Underwriters, represents that plaintiff’s suit arises and grows out of and is based upon a certain instrument designated ‘Agreement and Power of Attorney,’ dated April 1, 1916 signed by the Gerlach Mercantile Company, by George Gerlach, president and manager, and delivered to said Merchants’ Reciprocal Underwriters, a true and correct copy of which is attached hereto and marked Exhibit A, and also upon an insurance policy issued to' the said Gerlach Mercantile Company by said defendant, the Merchants’ Reciprocal Underwriters, under date of April 6, 1916, a true and correct copy of which policy is hereto attached, marked Exhibit B, and that said instruments expressly and specifically provide that all suits or actions against said Merchants’ Reciprocal Underwriters' arising or growing out of said instruments shall be brought and prosecuted in the courts of Dallas county, Tex., and not elsewhere, and that said contracts, according to their express terms and stipulations, are to be performed in Dallas county, Tex., and not elsewhere.”

The prayer is that its plea of privilege be sustained, and that the cause of action be transferred to the county court at law of Dallas county, Tex.

The court heard the evidence on the plea of privilege and overruled the same. The appellant did not answer in bar to the cause of action, and judgment was rendered against it on the policy for $1,000, from which judgment this appeal is prosecuted.

On the trial of the plea the appellants offered testimony of R. A. Belknap, who testified that Edward T. Harrison resides in Dallas, Dallas county, Tex., and was manager of the appellant company, and that the office of the company was in Dallas, Dallas county, Tex., and that they had no other office in the state, and that their domicile was in Dallas, Dallas county, Tex., and was so at the time of the trial. It was engaged in the business of insurance against loss by fire under the laws of 1913 (Acts 1913, p. 210); that it had no office or agent in Hemphill county; that none of the exceptions named in article 1830, Revised Statutes, applied to the company. On cross-examination this witness disclosed the fact that he had only been with the organization a short time, and was not able to -say that it complied with the act of the Legislature, and that it was his belief that the company filed with the commissioner of insurance a statement in writing giving the name and title and office through which that firm did execute contracts. This witness’ evidence is not, in our judgment, sufficient to show that the company complied with the statute. It, however, introduced an agreement or power of attorney between the Merchants’ Reciprocal Underwriters and the Gerlach Mercantile Company reciting that there had been established at Dallas, Tex., a department or bureau, called the Merchants’ Reciprocal Underwriters, where subscribers thereat may obtain reciprocal or interinsurance against loss by fire, and for that purpose the undersigned Gerlach Mercantile Company recites that it becomes a subscriber of the organization, upon the conditions and terms mentioned. It provided therein that insurance should be effected by and through Edward T. Harrison, of Dallas, Tex., acting as manager and attorney for subscribers at said underwriters, for the purpose of safeguarding the interest of the subscribers at said underwriters; there should be an advisory board of nine persons, which exercise general supervision and control over the affairs of the underwriters and over the disposal and investment of all funds belonging to it, and have such other and further duties and powers as are conferred by the agreement, providing for the election, notice, etc., of the advisory board; that the Gerlach Mercantile Company constituted and appointed Edward T. Harrison as its true and lawful agent and attorney in fact to solicit and accept or reject subscribers at said underwriters, insure property or any interest therein against loss or damage by fire in such terms and at such rates of premium as shall be determined by the advisory board, make, execute, issue, subscribe, and deliver policies of insurance in the name of the Merchants’’ Reciprocal Underwriters containing such terms, clauses, conditions, warranties, and stipulations as to said advisory board shall seem proper, and setting out fully the method of transacting the business of insurance, collecting premiums, etc., authorizing him also to represent the subscriber in all suits or other legal proceedings by or against the underwriters, and generally all powers, privileges, and authority ordinarily invested in' attorney in fact of a Reciprocal Eire Insurance Bureau, prescribing that 75 per cent, of all premiums received should be set apart by the advisory board as reserve, which shall be deposited in a state and national bank in Texas, providing for its investment and that all leases, savings and rentals to subscribers, taxes, legal charges, expenses of investing the reserve, and investigating and adjusting losses should be paid out of the reserve, providing that the Manager and Attorney shall beep an account of all moneys and premiums received by him from the subscriber and at the expiration of any policy issued to it, ascertain what portion of said premium, if any, had not been used, or set apart or disbursed for the purposes specified in the agreement, and that 30 days thereafter 50 per cent, of the amount which had not been used, set apart, or disbursed should be paid to it, and the other 50 per cent, should remain in the reserve to its credit as savings, and as soon as the aggregate of its savings equals the annual current premium on its policy then thereafter the entire portion of the annual premiums not used, set apart, or disbursed for the purposes therein specified should be returned to it as therein provided. It provided for creating a fund for paying expenses of business and conducting the business, salaries, office rents, etc., providing-after certain notice the right of canceling the contract and that its liability was expressly limited to the amount of its annual premium stipulated in any policy of insurance issued to it by virtue of the contract, and its liability should not exceed in any event, either to subscribers or other parties, the amount of such premium, and upon payment of the premium all its liabilities of every bind and character should cease, and with the following provision in the contract:

“In all suits or legal proceedings in this state against said Merchants’ Reciprocal Underwriters service of process may be had upon the commissioner of insurance and banking for the state of Texas or upon the manager and attorney for said underwriters both of whom are hereby designated, constituted, and appointed the true and legal agents of the undersigned to receive and accept for us such service of process, and service thereof upon either of said parties shall be accepted in all courts or proceedings as sufficient and binding upon the undersigned. * * * The office of said Merchants’ Reciprocal Underwriters shall be located at Dallas, in the county of Dallas, state of Texas, and all suits or actions against said underwriters by the. undersigned arising or growing out of this instrument or out of any policy of insurance issued by virtue hereof shall be brought and prosecuted in the courts of Dallas county, and not elsewhere. It is expressly agreed and stipulated - that the said .manager and attorney shall have no authority to act for the undersigned in any way outside of. or beyond the purposes and stipulations of this instrument.”

The policy issued to-the Gerlach Mercantile Company was introduced, and was shown to be upon the stock of merchandise in the town of Canadian, Hemphill county, and among other provisions therein the following:

“The agreement and power of attorney and application executed by the insured and upon which this policy of insurance is granted and accepted are made a part hereof, to ail intents and purposes as fully and effectively as if written verbatim into the face of this policy.”

This policy was signed by the Merchants’ Reciprocal Underwriters, Edward T. Harrison, manager and attorney. The appellant offered no evidence that the agreement and form of its policy was filed with the commissioner of insurance and banking of the state of Texas, or any certificate from that officer that the association had complied with the act.

The appellant presents, first, a motion to this court to the effect that the case should be reversed and dismissed because the county court of ^Hemphill county had no jurisdiction over the subject-matter of the suit, and that on the face of the pleadings it was shown the action declared on exceeded the sum of $1,000. Under the authorities of this state we find some difficulty in determining just what the rule with reference to the question here presented is. In the case of Telegraph Co. v. Garner, 83 S. W. 433, the rule is tersely stated as follows:

“We are of opinion the whole law on the question is stated when it is said interest by way of damages is recoverable, whether specially pleaded or not, but' the recovery can in no event exceed plaintiff’s stated demand.”

Also Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200, and a great number of other authorities.

If, under the rule above quoted the stated demand for $1,000 was all for which judgment could be rendered under the pleadings, as apparently held in the cases cited, the county court had jurisdiction of this case. It would appear, however, that that line of cases recognizing the above rule is not fully supported in the case of Railway Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054. It is not expressly so stated in that case; yet the certificate therein shows that, because the stated demand in the petition was for only .$95, the case was dismissed by the Court of Civil Appeals under the rule announced in the Garner Case. Nevertheless the Supreme Court held that judgment could have been rendered for that amount, plus 6 per cent. The prayer for interest in that case only asked for what the law allowed as damages.The prayer in this case is for what the law allows without calling it interest; that is, damage which the law, by judicial construction, has arbitrarily fixed for the compensation for the detention of money. We also call attention to the recent cases of Railway Co. v. Albin, 185 S. W. 647, Railway Co. v. Mathews, 169 S. W. 1052, and Railway Co. v. Matthews, 188 S. W. 243. We have concluded, however, after considering the pleadings in this case, that it will fall under the rule announced by the Supreme Court in the case of Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103. The petition shows the issuance of a fire insurance policy upon personal property for the sum of $1,000; that the property was totally destroyed, giving the date of the fire, and also that notice and proof of loss were made and demand of payment and the refusal thereof. The prayer is for judgment for the sum of $1,000, all costs, and such other and further general and special relief, in law and in equity to which the plaintiff was justly entitled. The petition only asks for the recovery of the amount stated in the policy. It might have been construed as authorizing the recovery of interest if the court had jurisdiction; yet it is doubtful whether the other and further relief in law and equity asked for was intended to secure a recovery for any other sum than that stated in the petition. Law and equity could have afforded relief in other ways than by increasing the amount stated for which recovery was sought. Where a party has selected the forum to hear and determine his rights, the allegations of his petition relied upon for the purposes of defeating the jurisdiction which he had invoked should show plainly that the jurisdiction of the court is negatived by the petition. Under the Rayzor Case we overrule appellant’s motion to reverse and dismiss the case upon the stated ground therein that the court had no jurisdiction.

It .is also urged by the appellees, in a motion to strike out the assignments of error, that the assignments presenting error were the grounds presented in the motion for new trial, and that this motion and the grounds set up therein presented no reversible error, for the reason that the motion and the proof thereunder did not show the defense of the appellant to the cause of action declared upon, or that it had a meritorious defense. It does not occur to us that, where the question presented is to the action of the court in overruling the plea of privilege, it will be necessary to set out that the defendant had a good defense to the cause of action. The question presented by the plea is whether the court, over the objection of the defendant, had jurisdiction over its person. If it is ascertained that the court did not have jurisdiction, and yet after such fact is ascertained the cause is prosecuted to judgment, over the objection of the defendant, the judgment would be illegal, and should be set aside, and the cause transferred to the court having jurisdiction over the person. It has been stated by the Supreme Court substantially that, where the record shows the court did not have jurisdiction over the person the judgment would be void, and it would not be necessary to allege a meritorious defense in order to set it aside. August Kern v. Freeze, 96 Tex. 513, 74 S. W. 303. So it would seem that, where a defendant by his plea objects to the court exercising jurisdiction over his person for the purpose of judgment, this is the only issue, and this question must first be determined before a hearing upon the merits. We do not think the defendant is required to submit his defense to a court which has no jurisdiction over him. When the facts are established which show that he should be sued elsewhere, he may rest on that fact and have that determined, and when that fact is established the judgment, whether rendered by default or upon the merits, is without authority of law and without jurisdiction over the person of the defendant, and is somewhat analogous to a judgment without service shown by the record. The motion of appellee to strike out the assignments will be overruled.

The first assignment is to the effect that the court erred in overruling and in not sustaining appellant’s plea of privilege. This assignment is followed by several propositions. The appellee, in answer to these assignments, insists that the action of the court was proper, because the evidence fails to show that appellant was authorized or had a permit from the commissioner of insurance and banking, as required by law, and for that reason defendant had no legal domicile in Dallas county or any other county in the state, and therefore suit was maintainable in the county of the plaintiff’s residence. As will be noted by the pleadings, the suit was instituted against appellant by name, alleging that it was doing an insurance business in the state of Texas, and with an office and place of business in Dallas county, Tex., in the city of Dallas, with Edward T. Harrison as manager and attorney, upon whom service could be had. This, it would seem, was sufficient to show a legal liability by a legally existing association and is an answer to ap-pellees’ contention, especially when the plea of privilege practically admits such legal entity. Unless the Merchants’ Reciprocal Underwriters of Dallas is the organization with whom Gerlach Mercantile Company contracted for insurance appellee has no cause of action. If the contention of appellee should prevail, it then states its case out of court.

If appellant issued the policy when the law did not authorize it to do business in Texas, those acting in its name might be personally liable and should be sued individually, and not as an organization, setting up the illegal acts which would render the individuals liable. The agreement or power of attorney introduced in evidence on the plea shows on its face that it was an agreement between individuals whereby, as subscribers, they could obtain reciprocal or interinsurance against loss by fire, and to be effected through a common agent, giving the rights and liabilities of each member. If this was not an organization under the act of 1913, suit should have been brought against the joint obligors. It is the rule in this state that a partnership cannot sue or be sued as such, but it is only the members who can sue or be sued. These parties should be sued at their place of residence. This right is a valuable one which the courts will respect when properly invoked or insisted upon. Where parties enter into a written contract to perform an obligation in a particular county, suit may be brought therein, and such an agreement is valid and enforceable. Texas Moline Plow Co. v. Biggerstaff, 185 S. W. 341; State v. Superior Court, 61 Wash. 681, 112 Pac. 927, Ann. Cas. 1912C, 814.

We are unable to perceive any reason for declaring a provision of a contract entered into by a number of individuals to indemnify each other from loss by fire void because it requires suits to be brought to enforce the obligation in the county, and not elsewhere, in which the parties select to establish and maintain their office for the transaction of the business of the concern. They thereby mutually agree to waive the right of suing or to be sued in any othqr county. Having entered into such a contract, a suit instituted at a place not agreed upon and in violation of the agreement will not defeat the policy or be a defense in bar of the recovery thereon, but if the mutual agreement is invoked, we can see no reason why the court may not enforce it by changing the venue according to th'e agreement. Under the pleadings and the proof on the plea of privilege in this case, we think when the allegation of the appellant that its domicile was in Dallas was so proven or admitted, it then devolved upon the appellees to show, that the underwriters were not such an organization as could then do business at that place or any other under the laws of the state. Hilliard v. Wilson, 76 Tex. 180, 13 S. W. 25; Holmes v. Coalson, 178 S. W. 628; Cloyd v. Sacra, 175 S. W. 456. It is our view that the agreement shown in this case is sufficient to establish that appellant was doing business in Texas under the act of 1913. A comparison of the terms of the agreement and the provisions of that law convince us that the organization was acting under the above act. We shall not take the time nor space to give the comparison. Its place of domicile is alleged by both parties, and is an uncontroverted fact as being in the city of Dallas, Dallas county. The policy and the power of attorney' executed by the Gerlach Mercantile Company show the organization was not acting under the general insurance laws of this state, or under chapter 10, tit. 71, Revised Civil Statutes, as to mutual fire insurance companies. That act requires the title of the company organized thereunder to contain the word “mutual,” and which must appear upon the first page of every policy. There is no such provision in the act of 1913, and the name of appellant or the policy in this case do not anywhere use the term “mutual.” The first section of the act of 1913 provides:

“The making of contracts between individuals, firms or corporations, providing indemnity among each other, from casualty or other contingency or from fire loss or other damage to their own property, shall not be subject to the laws of this state, relating to insurance.” Vernon’s Sayles’ Civil Statutes, art. 4972a et seq.

The laws of this state relating to insurance, in our judgment do not control an organization such as this. Subdivision 29 of article 1830, Revised Civil Statutes:

“Suits against fire, marine or inland insurance companies may also be commenced in any county in which any part of the insured property was situated.”

This provision has been the law since 1874, and relates to insurance. It would therefore appear under the first section of the act of 1913 that organizations such as appellant are not subject to that provision, and the agreement to sue in Dallas county, and not elsewhere, would not be in violation of the above provision. If, however, it can be said that appellant was subject to the venue therein provided, yet this is a suit upon a policy issued by virtue of an agreement to ■indemnify the parties thereto from loss by fire to their own property. The provision that suits should be maintained in the coun.ty where the office and business of this mutual enterprise was located and carried on, and not elsewhere, would appear to be a reasonable stipulation. This organization is not a public service corporation, and the same rules of strictness relating to contracts by public service corporations doubtless will not apply to organizations of this kind, if indeed there is any restriction as to such on the ground of public policy, as urged by ap-pellee. In the case of Nute v. Hamilton Mutual Insurance Company, 6 Gray (Mass.) 174, there was a provision that the assured may within four months, and not afterwards, bring an action against the company, which action should be brought at a proper court in the county of Essex. This clause in that case appears to have been pleaded as a defense in bar of the action brought on the policy in a different county, thereby seeking ■to defeat the action. It was there held a noncompliance with the stipulation was not a defense to the action, and “would not be conditions annexed to the contract to defeat it if not complied with, and so to be used by way of defense to an action upon it.” The case of Greve v. Ætna, etc., Ins. Co., 81 Hun, 28, 30 N. Y. Supp. 668, appears to have reached a differént conclusion and to have declared the stipulation valid, requiring its enforcement. In Daley v. People’s Building, etc., 178 Mass. 13, 59 N. E. 452, the Supreme Court of Massachusetts again passing on a contract with a similar provision to he performed in New York, followed the Greve Case, above cited, and refers to the Nute Case as a “somewhat halting decision.” In Benson v. Eastern Building, etc., 174 N. Y. 83, 66 N. E. 629, the Court of Appeals of New York in effect, we think, overruled the Greve Case, and also criticized the Daley Case. It is said by the New York court in the latter case that the Nute Case was not overruled in the Daley Case, but distinguished in the fact that the stipulations in the earlier case prescribed in what county the action should be brought, while in the latter case it required the action to be brought in another state — New York.

“We do not see that the difference in circumstances justified any distinction in principle. In the latter case the learned court said, referring to such a condition in the agreement: ‘It plainly purports to attach a condition to the contract, and we are of opinion that it does so effectually.’ We assume that this is to say that the parties have agreed that the shareholder should have no cause of action against the defendant unless his action was brought in the specified county in the state of New York, and that therefore, when he brings a suit elsewhere, his cause of action is not established. We think this argument proves too much.”

It is further said therein:

“Therefore the condition in the contracts, if valid (and it may be so in this case, since, the principal office of the defendant being in the county of Onondaga, that was a county in which the Code authorized the action to he brought), affected only the venue of the action. If, in violation of the stipulation, the plaintiff brought his action in another county the defendant’s remedy was to move to have the place of trial changed to that in which the plaintiff had agreed it sihould be brought. The Code provides in what counties the venue of an action may be laid; but if in contravention of those provisions, the venue is laid in another county than that prescribed, the remedy given is a motion to change the place of trial. The erroneous practice neither affects the jurisdiction of the court nor defeats the cause of action.”

It is the rule in most jurisdictions that the parties to an action may make a valid and binding agreement to fix the venue of an action in a particular county. We have a statute which authorizes a change of venue upon agreement by the. parties. Article 1911, Revised Civil Statutes. This right was recognized before the statute. Burnley v. Cook, 13 Tex. 586, 65 Am. Dec. 79. This principle above stated is recognized by many decisions in this state. While parties cannot by agreement or waiver confer jurisdiction on courts as to the subject-matter, it is generally recognized that a defendant may waive his privilege to be sued in a particular county. It seems to us, where the venue stated gives to plaintiff the right to bring his suit in two or more places, he has the right of election as to which place he will institute the proceedings, and that, having the right of election, if he should enter into an agreement that he will bring the suit in one of the particular places permitted by the statute, and not elsewhere, such a contract should be held to be legal, and that courts should enforce such a contract in so far as to compel plaintiff to litigate his right in the county he agreed it should be. The agreement in this case confines the venue to the county of the appellant’s domicile, the place where the statute requires the suit to be prosecuted, if it did not fall under an exception which permitted it to be filed elsewhere.

The appellee bank, as assignee, brought this suit against the appellant and the Gerlach Mercantile Company, whose residence is inferentially alleged to be in Hemphill county. This will not confer jurisdiction over the appellant under the fourth subdivision of article 1830, Revised Civil Statutes. The proviso in the subdivision in effect states that an assignment of a note or chose of action will not give the subsequent holder the right to institute suit thereon in any other county than the county in which the suit could have been prosecuted if no assignment had been made. Roaring Springs, etc., v. McAbee, 187 S. W. 431.

We believe the judgment of the trial court should be reversed, and that the plea of privilege be sustained. This court will reverse and sustain the plea and remand the ease, with instructions to the trial court that he enter an order transferring the cause as prayed for, and, under article 1832, Revised Statutes, reversed and remanded.
      d&wkey;Fer other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TALBOT, J.

text:
    HOUSTON & T. C. R. CO. v. PATTERSON.
    (No. 7691.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 24, 1917.)
    Carriers &wkey;^228(5) — Live Stock — Action— Evidence — Sothcimci.
    In action by shipper for damages for negligent transportation of live stock, evidence held sufficient to show defendant’s negligence as charged, and that it was the proximate cause of the injuries complained of.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 960.]
    Appeal from Navarro County Court; R. R. Owen, Judge.
    Action by J. H. Patterson against the Houston & Texas Central Railroad Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and R. S. Neblett and Gordon Damon, both of Corsicana, for appellant. W. A. Tarver, of Corsicana, for appellee.
   TALBOT, J.

The appellee sued the appellant to recover damages alleged to have been sustained on account of injuries inflicted upon certain of his liorses and nmles while being shipped over appellant’s railroad from Corsicana, Navarro county, Tex., to Houston, Harris county, Tex. The petition alleged, in substance, that appellee’s horses and mules were injured as the result of the negligence of appellant; that the negligence consisted in the rough handling of the train and car in which said horses and mules were being transported, whereby they were thrown against the sides and ends of the car and against each other, thereby badly skinning and bruising them; that one of the horses was so badly injured .that he had to he removed from the car before the shipment reached its destination. Appellee’s damages were laid at $430. The appellant answered by general demurrer, and general denial. It also specially denied that said horses and mules were injured, or, if injured, that their injuries were due to its negligence in handling them. The case was tried before the court without a jury and resulted in a judgment in favor of the appellee for the sum of $250. Appellant’s motion for a new trial having been overruled, it perfected an appeal to this court.

The single assignment of error is that:

“The judgment of the court is contrary to the evidence, in that the evidence clearly showed that said horses and mules were handled by the railroad in a reasonably careful manner and without negligence, and that their injuries, if any, were due to the vicious propensities of the animals shipped, and not to the fault of the defendant.”

There are two propositions advanced under the assignment of error, “but the first presents the contentions of the appellant, and the second need not therefore be stated. The proposition contended for is that:

“Whore the evidence clearly shows that a shipment of live stock were transported with ordinary care and reasonable diligence, then the injuries sustained, if any, will be attributed solely to the inherent nature and proper vice of the animals and will not be chargeable to the carrier, and a judgment in favor of the shipper will not be sustained.”

Whether a common carrier is responsible as an insurer for live stock transported by it, as in the case of inanimate freight, or is absolved from liability when the evidence fails to show negligence on its part during the transportation thereof need not in the view we take of the evidence in this case, be considered. There are a number of cases of the appellate courts of this state upon the question in which will be found some apparent conflict, but that a carrier is not liable for damages resulting solely from the act of God, the public enemy, the act of the owner, or vicious propensities or inherent vice of the animals themselves, is, as we understand, the universal holding of the courts. The evidence in the case at bar is sufficient, we think, to justify the conclusion that the appellant was guilty of negligence in the transportation of appellee’s horses and mules, substantially in the manner charged, which was the proximate cause of the injuries to them of which he complains. This being true, we would not be warranted in disturbing the judgment of the trial court. It is practically undisputed in the evidence that appellee’s horses and mules were in good condition when delivered to appellant for transportation, and that it sustains the court’s finding that they were injured in transit, although conflicting, cannot be successfully denied. The number of the animals injured and the character and extent of their injuries appears clearly stated in the testimony of the appellee, and there is no assignment of error complaining that the judgment is excessive.

J. Ii. Emmons, a witness offered by the ap-pellee, testified, among other things, that he accompanied the shipment; that most of the horses and mules wore unloaded at Wellborn, a station on appellant’s road; that they were unloaded because one of the horses was down in the car and they were unable to get him up. He further testified, in effect, that he got in the car with the horses at College Tank to keep the horse that was down from being trampled upon; that there was considerable jolting and jostling of the train and car; that this was to such an extent as to jar him and the stock; that when they got to Wellborn the employes of the railway company switched the car of horses backward and forward and jolted and jostled them around and caused them to be thrown against the sides of the car and injured; that the appellant had a very sorry place for handling the stock at Wellborn; that a bay horse was injured there; that he fell through the trapdoor when they were reloading the horses and mules at Wellborn; that he fell through the trapdoor and skinned his hind leg up to the thigh.

On the other hand, E. B. Montgomery, a witness for the appellant, testified:

“In the handling and running of this train there was no more jerking or jolting than is in any freight train. While I was up at the head of the train, I noticed that one of the horses In Mr. Patterson’s car was down. When we got to Wellborn, where the stock pens were, the stock were unloaded and this horse taken out of the car. We got them all out because they were kicking and fighting so we were afraid to go in there and get the horse out. I didn’t want to go in there where those horses were kicking. In reloading the horses at Wellborn, there was some fighting and kicking among them. There were one or two fighting and kicking horses and a kicking mule among them. We had some trouble in reloading them. When I noticed that the horse was down in the car when we were at College Station, the rest of the horses were fighting and kicking around in the ear.”

This witness, while testifying that none of the horses was injured in reloading them at Wellborn, said that one of them got his foot and leg down between the running board and the car. He said the trapdoor of the pen at Wellborn was all right, but he further said:

“He (Emmons) got an axe and cut down the door so it would fit. They had to cut that trapdoor to make it fit. The door didn’t fit without being cut; it fit after it was cut.”

As to the injury received by this horse, Montgomery said: “The hair was knocked off of his leg from his ankle to his knee.”

The appellant did not plead that the injuries to appellee’s horses and mules were occasioned by their vicious propensities or inherent vice, and appellee contends that without such plea the defense that the injuries sustained by them resulted from such propensities and vice cannot be relied pn. But we shall not stop to consider and determine whether or not it was essential to appellant’s right to avail itself of such defense that it be both pleaded and proved. The evidence, as we have held, was sufficient to show that the injuries to the horses and mules were caused by the negligence of appellant, and, even though there was evidence which would have justified a finding that these injuries were the result of their vicious propensities and could be considered without a plea to that effect, the judgment should not be reversed.

Affirmed.

       — ii?nr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GRAVES v. GRAVES et al.
    (No. 5786.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 7, 1917.
    Rehearing Denied March 14, 1917.)
    1. Advebsb Possession <&wkey;114(2) — Findings oe Court — Evidence.
    In an action of trespass to try title, evidence examined, and held sufficient to support findings of court that plaintiff had been in possession of only the easterly half of a strip of land four feet wide for mofe than ten years.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 685, 686.]
    2. Adverse Possession &wkey;>109 — Ofeer to Pay eor Disputed Land — Defense.
    An offer of plaintiff to pay defendant §500 for land, title to which was in dispute, will not divest her of title acquired by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 629-635.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by Smithie Graves and others against Amos Graves. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    George W. Huntress, Maury Maverick, ¿md Houston & Woodhull, all of San Antonio, for appellant. Ball & Seeligson and Chas. W. Trueheart, all of San Antonio, for appellees.
   MOURSUND, J.

On .July 15, 1915, appel-lees, Mrs. Smithie Graves and Mrs. Ollie Graves Martin, the latter joined by her husband, sued appellant in trespass to try title, seeking to recover a strip of land 4 feet wide and about 160 feet long between the dwellings of appellees and appellant, which front on Oakland street in San Antonio, Tex. Appel-lees pleaded the five and ten years’ statute of limitations. Appellant interposed a plea oí not guilty, and the cause was tried without a jury. At the conclusion of the'evidence, it was agreed that the record title was in appellant, and the sole issue to be decided was whether appellees had established title under the statute of limitations of ten years. Judgment was rendered in favor of plaintiffs for a strip 2 feet wide, being the easterly half of the 4-foot strip sued for.

The findings of fact filed by the court are rather long, especially as they include field notes, so we will only state the substance thereof in so far as may be necessary to dispose of questions raised upon this appeal. He found that plaintiffs and those from whom they deraign title have had and held for more than ten years prior to the 1st day of September, 1914, actual, peaceable, and adverse possession of the easterly half of the strip of land in controversy, cultivating, using and enjoying the same for the purposes for which it was susceptible. He also found that there was much evidence that such possession extended to the entire 4-foot strip, instead of only to 2 feet thereof, but he did not find that the preponderance .of the evidence was to that effect.

Appellant contends that the evidence does not support the finding that plaintiffs had actual, peaceable, and adverse possession of the easterly half of the strip for more than ten years prior to September 1, 1914, while appellees by cross-assignments contend the court erred in not so finding as to the entire strip.

We conclude that the evidence supports the finding of the trial court on which he based his judgment awarding plaintiffs the easterly half of the strip in controversy. There is some uncertainty with regard to the location of the line to which Dr. Graves, Sr., and plaintiffs claimed, which line is shown to have been marked for a considerable period of time by a board placed in the ground. The witness Dixon testified that it was in the center of a flower bed which was 4 or 5 feet wide. Mrs. Martin, one of the plaintiffs, testified the flower bed was about 4 feet wide, but said she was not quite certain. In answer to a question of the court whether the bed now is as it formerly was, she said she could not say positively. She fixed the length of the flower bed at 20 feet, while Suchy testified it was 30 or 40 feet long. Suchy was equally liberal in estimating the width of the bed, for he fixed it at 8 or 10 feet, and we believe he is the only witness who thought it had been that wide. At the time of the trial it was about 4 feet wide. Mrs. Smithie Graves, one of the plaintiffs, also testified to the fact that the board divided the flower bed so that the workmen for each owner would know how far to go in their work. She said:

“That board put a certain rose bush in our yard. The 2x4 run right on my brother’s side, but the rose bush was inside. * * * The rose bush is in the east line of this strip, and the 2x4 is right-alongside of it on the west.”

The testimony just quoted is consistent with the theory that the 2-foot strip allowed plaintiffs by the court would give them the rose bush on which this witness bases her testimony to a large extent. The witness Jackson, who worked for Dr. Graves when he first moved to the place, thought that he made the flower bed. He did not undertake to say how wide a bed it was. He testified with regard to the present flower bed without making any comment to the effect that there was any change in size.

We have carefully considered all of the testimony, and conclude that the same is of such nature as to justify the court in coming to the conclusion that plaintiffs did not show by a preponderance of the evidence that Dr. Graves, Sr., had claimed the entire 4-foot strip. In this connection, it is, of course, to be noted that we are passing on this question, not as an original one for us to decide, hut under the rules of law applicable to findings made by trial courts.

The conclusions of fact announced above dispose of and require the overruling of all cross-assignments and of appellant’s first four assignments of error.

Appellant’s fifth assignment of error complains of the refusal of the trial court to find:

“That during the year 1914 the plaintiffs recognized the line of defendant to be where the fence testified about is located, being the present fence line of defendant, and agreed to purchase the 4 feet in controversy from the defendant.”

The testimony relied on is that of Mrs. Martin, to the effect that, after she returned and found that defendant had erected a fence, she had a conversation with him in which he tried to convince her that the fence was on the correct property line, and at one time had been worked up until she thought possibly it was; that she offered him $125 per front foot, or $500, for 4 feet. The conversation took place in December, 1914, or later, at a time when, under the finding of the court, the bar of the statute of limitation was complete. If what Mrs. Martin said can be construed as a recognition of defendant's title, it could only be considered as a circumstance in connection with all the other testimony of this plaintiff and the other witnesses on the question of adverse possession, and the court, after hearing all of the testimony, held that adverse possession was shown. She could not, after title by limitation had been acquired, divest herself and the other plaintiff of title by making such offer. Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Whittaker v. Thayer, 58 Tex. Civ. App. 282, 123 S. W. 1138; Wickizer v. Williams, 173 S. W. 289; Barratt v. McKinney, 93 S. W. 241; Hunter v. Malone, 49 Tex. Civ. App. 116, 108 S. W. 709. The assignment is overruled.

The judgment is affirmed.
      «ítemFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIS, J.

text:
    KIRBY LUMBER CO. v. YOUNGBLOOD
    (No. 135.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 25, 1917.)
    1. Trial <&wkey;350(l) — Submission oe Questions — Propriety—(Good Paith oe Jury.
    When, on the trial of a cause, each issue raised by the pleadings and the evidence is submitted in plain and intelligent questions, which cannot be misunderstood, and, when necessary, appropriate instructions are given to guide the jury in determining their answers, it is not error to refuse to submit questions having their object to test the good faith of the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 828.]
    2. Evidence <&wkey;317(9) — Hearsay.
    In an action by the employs of. a lumber company for injuries received while unloading logs from cars, testimony that the engineer of the log train, after plaintiff was injured, while the engineer was holding a log on the car to keep it from coming off, stated that he told a third party, to put a bunk spike in place, and that he failed to do it, was inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1182.]
    3. Witnesses <&wkey;414(2) — Corroboration —Former Statements.
    .Testimony that witness bad on a prior occasion made a statement to a certain, person was inadmissible; it being improper to permit plaintiff to bolster up the testimony of such witness by showing by the witness prior statements consistent wjth his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1288.]
    4. Witnesses <&wkey;¡380l(5) — Inconsistent Statements — «Impeaching Own Witness —Surprise.
    Plaintiff did not have the right to impeach his own witness by showing inconsistent statements, or to lay a predicate for his impeachment, where plaintiff was not surprised by the witness’ testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1214, 1219.]
    5. Master and Servant &wkey;>274(2) — Injuries to Servant — Evidence — Contributory Negligence.
    In an action by an employs of a lumber company for injuries, testimony that plaintiff just before unloading the log ear, the work in which he was injured, had drunk about a pint of whisky, was admissible on the issue of contributory negligence, also-as proper to be considered as bearing on the weight of plaintiff's testimony as to his conduct on the occasion.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 941.]
    6. Trial &wkey;>133(5) — Argument oe Counsel —Withdraw aj>-Admonition by Court.
    In an action for injuries by an employé of a lumber company, plaintiff’s counsel, in his closing argument to the jury, stated in substance that it did not matter so much who was technically at fault, whether plaintiff or defendant, as the big corporations using men to make their wealth should give up part of their wealth to an injured employé. The court admonished counsel that he should keep within the record, and that the argument was improper. Held, that the making of the argument was reversible error, despite the court’s admonition and counsel’s withdrawing his remarks and stating in effect that plaintiff relied solely on his legal rights.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316.]
    7. Damages <&wkey;132(l]i — Personal Injuries —Excessive Verdict.
    Where a lumber company’s employé, an able-bodied man Sn the prime of life, because of his injuries had keen practically deprived of any means of support by manual labor, his sight and hearing having been badly injured, while he had been caused to stutter, and could not use his right arm, which had withered, his right leg being almost useless, verdict for $15,000 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 372.]
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Suit by Henry Youngblood against the Kirby Lumber Company. From a judgment for plaintiff, defendant appeals.
    Judgment reversed, and cause remanded.
    Andrews, Streetman, Burns & Logue, of Houston, and W. G. Reeves and Oliver J.-T9dd, both of Beaumont, for appellant. Stanley Thompson, of -Houston, and Howth & Adams, of Beaumont, for appellee.
   DAVIS, J.

Appellee instituted this suit in the district court of Jefferson county to recover damages in the sum of $30,000 for injuries to his person received by him while engaged in the work of unloading logs from log cars of appellant, Kirby Lumber Company, on January 5, A. D. 1912, at Evadale, Jasper county, Tex.

It is alleged, in substance, by appellee, that appellant, Kirby Lumber Company, at the time appellee received his injuries, was engaged in the manufacture and sale of lumber, and as a part of its business owned, and operated a train or railroad engine and cars, for the purpose of hauling and transporting logs from the woods to its sawmill; that appellant was careless and negligent in failing to furnish and equip one of said cars with the necessary and proper bunk spikes, or that, having equipped said car with bunk pikes, one of the bunk spikes had been lost or broken, and that said bunk spike had remained out for an unreasonable length of time, and that appellant knew, or by the use of ordinary care could have known, that said bunk spike was out; that the bunk spikes were placed on the log cars for the purpose of holding the logs on the car, so that, when the toggle chain was knocked loose, the bunk spikes would be a means of safety in assisting in the safe and proper removal of the logs from the car; that in the absence of the bunk spikes, when the toggle chain was released, all of the logs would suddenly slide from the car, and in this instance did do so, unexpectedly to appellee, and not in the usual and customary way, thereby injuring appellee while he was engaged in the faithful performance of his duty, and without any negligence on his part, and without his knowledge that a bunk spike was missing, and that by the use.of ordinary care he would not have discovered, in the required rush of the work to be performed, that a bunk spike was missing.

Appellant, in answer to this charge, pleaded general denial, contributory negligence, and assumed risk.

The case was submitted on special issues, and the jury found thereon as follows:

(1) “Was one of the bunk spikes out of or missing in the car in question, on the side next to the rolhvay, at the time of and before plaintiff was injured? Answer: Yes.”
(2) “Was the failure to have said bunk spike in the car negligence on the part of defendant and its authorized agents? Answer: Yes.”
(3) “Was such negligence the direct and proximate cause of plaintiff’s injuries? Answer: Yes.”
(4) “Did plaintiff, Henry Youngblood, have actual knowledge that said bunk spike was out of or missing in the car at the time of and before his injury? Answer: No.”
(5) “In performing his own duties or employment, and in using ordinary care in performing them (if he did so), would plaintiff necessarily have discovered that said 'bunk spike was out before he was injured? Answer: No.”
(6) “In performing his own duties, and assuming that he used ordinary care in performing them (if he did so), was the fact (if you have found it to be a fact) that said bunk spike was missing open, obvious, and visible to plaintiff? Answer: No.”
(7) “Was the risk and danger of the logs coming from off the cars without force being applied thereto when the toggle chains were unloosened a risk and danger ordinarily incident to the work in which Henry Youngblood was engaged, even when the bunk spikes were in the cars? ' Answer: No.”
(S) “If Henry Youngblood unloaded the car in question one or more times immediately preceding the day he was injured with the bunk spike missing therefrom, must he necessarily have discovered and known that said bunk spike was missing? Answer: No.”
(9) “Was plaintiff guilty of contributory negligence in taking a position outside of the duck holes in performing the work of loosening the toggle chains and unloading said ear, or in being in such position while doing said work that he could not reach said holes for his protection against the falling logs? Answer: No.”
(10) “Did plaintiff stand and remain in the way and path of said logs without taking reasonable precautions under all the circumstances for his own safety? Answer: No.”
(11) “Was plaintiff guilty of contributory negligence in failing and omitting to observe the manner in which the logs were loaded and secured on said car, or in failing and omitting to observe how and in what manner said logs were likely to roll or descend from said car when the toggle chains thereon should be unloosened? Answer: No.”
(12) “Was plaintiff guilty of contributory negligence in failing to observe whether there was a bunk spike out of said car? Answer: No.”
(13) “Did plaintiff in unloosening the toggle chains, and in unloading said car, fail to take such precautions for his safety as were proper and reasonable under all of the circumstances? Answer: No.”
(14) “Was plaintiff’s failure, under all the circumstances, to observe and discover that said hunk spike was missing, negligence on his part? Answer: No.”
(15) "‘Was plaintiff guilty of contributory negligence in failing to stoop while knocking the-toggle chain or in failing to stoop or duck down by or beneath the skid after having knocked the toggle chain, so that the log would go above him without injuring him? Answer: No.”
(16) “What amount of money paid now will compensate plaintiff for the injuries he has sustained? Answer: $15,000.”

The evidence is sufficient to sustain the findings of the jury, as shown by sa'id questions and answers thereto; and we think the learned trial judge did not err in refusing to give the peremptory instruction requested by appellant, defendant below, and in refusing to give the special instructions and special issues requested by appellant.

Each issue raised by the pleadings and the evidence was submitted to the jury in plain and intelligent questions, which could not have been misunderstood, and, when necessary, appropriate instructions were given to guide the jury in determining their answers thereto; and when this is done in the trial of a case, it is not error to refuse to submit such questions, which have for their object either the formation of a Chinese puzzle or to test the good faith of the jury.

This disposes of appellant’s assignments of error from 1 to 37, inclusive, which relate to the action of the trial court in giving or refusing special charges or special issues, and that the jury were manifestly wrong in answering the questions submitted to them as they did.

The thirty-eighth assignment urges that the court erred in permitting the plaintiff to prove by the witness Willie Cruse, over the objection of defendant, that the engineer of the train, T. Wilson, after the plaintiff was injured, while the said T. Wilson was holding a log on the car to keep it from coming off, stated to witness the following:

“I told Big Boy [referring to B. C. Wilson] to put a bunk spike in here, and he failed to do it.”

The question of negligence on the part of appellant, defendant below, was a close question in the trial of this case, and this testimony, no doubt, strongly influenced the jury in determining the question of negligence on the part of the defendant.

It appears that this testimony was admitted on the theory that it was a part of the res geste. We think the admission of this testimony was error, and because of the peculiar condition of. this case was material error. The same was hearsay, and does not come within any exception to the established rule excluding hearsay testimony. The evidence shows that T. Wilson did not see the accident and did not know of it until after the plaintiff had been hurt, and the declaration offered in evidence was made after the accident occurred.

The rule is:

“The declarations of the agent are only admissible as to matters within the scope of his authority, and only as to transactions then going on, and not as to past events.”

In the case of G., C. & S. E. Ry. Co. v. Southwick several witnesses testified in the trial of the ease that just after the accident, in the depot, and at the place of accident, just after plaintiff was brought in, the conductor (Taylor) stated: *

“I told those people that those stools would yet be the death of some one.”

Judge Pleasants, .in passing on this question in the case, says:

“Any opinion Taylor may have expressed to the company about the stools used by the company was not competent evidence tending to show that the stools were either safe or unsafe implements. Nor was the declaration by the witness, at the time of the injury to the deceased of what he may have said to the company on a previous occasion any part of the res gestae.” G., C. & S. F. Ry. Co. v. Southwick, 30 S. W. 592; I. & G. N. Ry. Co. v. Ragsdale, 67 Tex. 25, 2 S. W. 515; Verry v. Railway Co., 47 Iowa, 549; 1 Taylor, Ev. (7th Eng. Ed.) 602; Railway v. Brisco, 42 Tex. Civ. App. 321, 100 S. W. 989.

Appellant’s thirty-ninth assignment of error urges that the court erred in permitting plaintiff’s attorney, over objection, after said attorney had asked the witness B. C. Wilson the following portion of a question, to wit: “I will ask you if you didn’t tell Mr. Gene Hartnett, to whom .you made a statement”— to ask said witness'the remainder of said question, to wit, “in which you stated that your brother had told you to put in those bunk spikes a couple of days before this accident, and that you had neglected to do it.” It is often the case that the answer of the witness makes the quéstion asked his testimony. Suppose the witness had answered the question, “Yes;” then he adopted the question asked as his answer, and it would have been equivalent to the witness making the statement, “I told Mr. Gene Hartnett that my brother told me to put in those bunk spikes a couple of days before this accident, and that I had neglected to do it.”

The evidence that the witness had on a prior occasion made a statement to Gene Hartnett was inadmissible, and it was error to permit plaintiff to bolster up the testimony of his own witness by showing by the witness prior consistent statements; nor did the plaintiff have the right to either impeach the witness by showing inconsistent statements, or to lay a predicate for his impeachment, for there is nothing in the record to show that the plaintiff was surprised by the testimohy of the witness.

The fortieth assignment urges that the trial court erred in refusing to allow appellant to prove by the witness B. O. Wilson, on cross-examination, that the plaintiff, on the morning when he sustained his injuries, just before lie was unloading the log car, had drunk about a pint of whisky. We think this was error, for the reason such fact was proper to be considered by the jury in passing upon the question whether or not the plaintiff at the time he received his injury was guilty of contributory negligence, and for the further reason that such fact was proper to be considered by the jury as bearing upon the weight of the testimony given by the plaintiff as to his conduct upon the occasion in question.

In the case of Alexander v. Humber the Supreme Court of Kentucky say:

“The admission of evidence tending to show that the appellants were more or less intoxicated at the time the injury was inflicted is not, therefore, open to question. If it were, however, it was unquestionably competent. The issue was whether the appellants were guilty of neglect. Intoxication ordinarily deprives one of the same power to exercise caution as when sober. It will hardly be claimed that, if one were injured by neglect in the movement of a locomotive, it would not 'he competent to show that the engineer in charge of it at the time was intoxicated.”

See, also, Cyc. vol. 23, p. 61, note 30; volume 29, p. 534, note 44; Alexander v. Humber, 86 Ky. 565, 6 S. W. 454; Hughes v. Chicago, etc., Ry. Co., 150 Iowa, 232, 129 N. W. 956.

The forty-first assignment urges that this cause should be reversed because one of plaintiff’s counsel, in his closing argument'to the jury, stated to the jury, in substance, “that his idea was that in these cases it did not matter so much who was technically at fault, whether the plaintiff or the defendant, that these big corporations ought to pay a man working for them for the loss he has sustained, and that, if these corporations used these men to make their wealth, they should give up part of their wealth to the injured employs, to compensate him for the injury,” and which argument was objected to at the time, and the trial court admonished said attorney that he should in his argument, keep within the record, and that the argument was improper, whereupon the said attorney replied “that, while he differed with the court, he would nevertheless comply with the ruling of the court,” and thereupon.proceeded to say to the jury, substantially “that the jury could not find for the plaintiff on the theory that the defendant was a corporation, nor upon the theory that the man was injured while serving the corporation in the work out of which they make their profits, and that this was true, no matter what he, or anybody else, thought of it, but that the jury would-have to be governed by the law, and they could not find for the plaintiff unless it was shown by the plaintiff by a preponderance of the proof that the company was at fault, as defined in the court’s charge, and that he did not base his recovery upon the mere fact that the plaintiff was an injured employé and the defendant a corporation, for whom he was serving at the time of his injury, but upon higher ground, and that is that the plaintiff was in the performance of his duty, using due care for his own safety, and that the injury occurred entirely by the negligence of the defendant,” and which argument is before us for review by a proper bill of exception.

It is clear from the statements made by plaintiff’s counsel that he could have no other object in view than to arouse the passion and prejudice of the jury. The argument was not based upon any evidence adduced upon the trial. It is true the trial judge admonished said attorney “that he should in his argument keep within the record, and that the argument was improper”; but when the seeds of passion and prejudice are sown and fall in fallow ground, it is difficult, indeed, to destroy its effect, even by the most-careful admonition and painstaking instructions; and when counsel, either in their argument to the jury or during the trial, in the presence of the jury, go outside of the record, and indulge in remarks that are clearly intended to arouse the passion or prejudice of the jury, and likely to influence them, such conduct not only authorizes, but requires the trial court to set aside the verdict of the jury, and this should be done, even though the court may have instructed the jury to disregard such argument. Rules 39 and 41, District Court (142 S. W. xx); Railway Co. v. Jarrell, 60 Tex. 270; Texarkana & Ft. Smith Ry. Co. v. Terrell, 172 S. W. 742; Moss v. Sanger Bros., 75 Tex. 323, 12 S. W. 619.

Appellant’s forty-second assignment of error complains that the verdict of the jury in the sum of $15,000 is excessive.

It is true that this verdict is a large one, but in view of the fact that the undisputed evidence shows that because of his injuries an able-bodied man in the prime of life has been practically deprived of any means of support by manual labor, his sight and hearing were badly injured, he stutters, and cannot use his right arm, which has withered, and his right leg is almost useless, we cannot say that the verdict of the jury is excessive.

For the errors pointed out, the judgment of the district court will therefore be reversed, and the cause remanded for another trial.
      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes