text:
    PARIS & G. N. R. CO. et al. v. FLANDERS.
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1914.
    On Motion for Rehearing, April 2, 1914.)
    1. Master and Servant (§ 276) — Actions for Injuries — Questions for Jury.
    In a railroad switchman’s action for injuries caused by a car on which he was riding colliding with a standing ear on a switch track, evidence held insufficient' to make a question for the jury as to whether the company’s negligence in permitting a freight engine to stand in the yards, with a brilliant headlight burning, contributed in any way to the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 27.6.]
    2. Appeal and Error (§ 1027) — Harmless Error — Errors Not Affecting Result.
    A judgment will not be reversed for error, unless it probably caused the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.]
    3. Appeal and Error (§ 1062) — Harmless Error — Submission of Issues.
    Where there was ample evidence of negligence regarding an act which was not a proximate cause of an injury, while the evidence regarding an act which might have been a proximate cause was meager, the erroneous submission of the first act could not be held harmless, under the general rule that, if there are two grounds of recovery — one supported by the evidence, and the other not — both of which are submitted, a verdict for plaintiff should be referred to that ground authorized by the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.]

      4. Master and Servant (§ 154) — Liability for Injuries — B’ailure to Warn — Knowledge from Other Sources.
    The failure of a foreman in a railroad yard to inform a switchman that a car had been left in such position that one upon which he was required to set the brakes might collide therewith was not a ground of recovery, even though it was his duty to give such information, if the switchman knew from other sources the position of the car.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 308, 309; Dec. Dig. § 154.]
    On Motion for Rehearing.
    5. Appeal and Error (§ 882) — Invited Error-Submission of Issues.
    In a railroad switchman’s action for injuries, defendant could not complain of the submission, as a ground of recovery, of its negligence in permitting an engine with a brilliant headlight to stand, in the yards, though this was not a proximate cause of the injury, where the special charges requested by it called for a determination of the same issue of fact.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    6. Witnesses (§ 405) — Testimony Subject to Contradiction — Collateral Matters.
    In an action for personal injuries, plaintiff’s denial on cross-examination that he was allowed to resign from a third party’s employ on account of his drinking related to a collateral matter, and could not he contradicted.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. § 405.]
    7. Damages (§ 173) — Evidence—Personal Injuries — Inability to Obtain Employment.
    In a railroad switchman’s action for injuries, where there was evidence tending to show that plaintiff’s efficiency for railway service was thereby impaired, evidence that a physical test was required of railroad employés was admissible as tending to show the consequences of his impaired efficiency, and that 'he probably would not be able to secure employment in the railway service, though it was not shown that defendant required any such test.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 490-492, 501; Dec. Dig. § 173.]
    8. Trial (§ 85) — Objections to Evidence Admissible in Part.
    In an action for personal injuries, the testimony of a physician, that he examined plaintiff, and found a Colle’s fracture of the wrist and a fracture involving the left elbow, that there was marked stiffness in the use of the elbow and arm, and a weakness in the use of both hands, that he tested the left arm in different positions with reference to its use, and tested plaintiff’s grip in both hands, that his ability to grip was considerably impaired, that there was difficulty in the use of the elbow joint and the left arm in raising and straightening it, and that, in his opinion, plaintiff’s ability to perform the duties of a railroad switchman or brakeman had been considerably impaired, was properly admitted over the objection, made to the testimony as a whole, that it was hearsay, and based on information furnished the witness by plaintiff, as some of the facts detailed were not necessarily derived from that source.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. § 85.]
    Appeal from District Court, Lamar County; A. P. Dohoney, Judge.
    Action by Charles Flanders against the Paris & Great Northern Railroad Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed on rehearing.
    Terry, Cavin & Mills, of Galveston, Andrews, Ball & Streetman, of Houston, and Wright & Patrick, of Paris, Tex., for appellants. Carloek & Carlock, of Ft. Worth, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

The appellee sued the appellant, and recovered a judgment for personal injuries. In his petition he alleged substantially the following facts: That in May, 1912, the appellants jointly operated a switchyard in the city of Paris, Tex., in which the plaintiff was employed in the capacity of a switchman. About 3 o’clock on the night of May 25, 1912, while in the performance of his duties, he was thrown violently from the top of a box car to the ground, sustaining severe and painful injuries, which are particularly described.

The specific acts of negligence charged are, first, that the defendants permitted one of their engines attached to a freight train, and equipped with a powerful electric headlight, to stand on one of the side tracks in the yard; that the presence of the headlight rendered the performance of plaintiff’s duties dangerous by reason of the glare he encountered; that it had the effect of blinding him so that he could not safely perform his work. It is further alleged that just before the accident occurred the switch engine with which the appellee was working had kicked some box cars south on the side track in the southern portion of the yard, and it became plaintiff’s duty to then mount the cars and set the brakes thereon for the purpose of controlling their movements; that, in order to do this, he climbed to the top of the cars by means of ladders on the sides so as to reach the brakes and apply the same; that, while he was in the act of climbs ing upon the top of said cars in the performance of his duty, the glare of the headlight shone directly upon him, and upon the track where he was at work, thereby blinding him, and rendering it difficult for him to see the objects surrounding him as he otherwise would have been able to do; that, by reason of negligence in failing to obscure the light, he was unable to set the brakes on the car, or stop the same, before it collided with another car farther south on the track; and that, as a result of the collision, the plaintiff was thrown with great force to the ground and injured.

As a second ground of recovery, appellee alleged that the appellants were guilty of negligence proximately causing his injury in permitting the car which Was struck by the one upon which he was riding to remain in the position it was at the time of the. accident, without notifying him of its presence; that the car referred to was left on what was known as the “lead,” or “crossover,” track from the stockyards track to another track in the yards running to what was called the “rip track,” or repair track; that the car so left on said lead track, was one of a group of five cars that had been coupled, to the engine on the east side of the yard by the crew to which the appellee belonged a short time before the accident; that, when the engine was connected with the five cars, the foreman in charge called to the plaintiff, who was then acting as “long field man,” using the expression, “rip track,” and immediately gave the signal for the engine to move; that appellee understood from the expression used by the foreman that all of the cars in that train were to be carried over to the west side of the yards and placed upon the repair track; that it then became the duty of the appellee to go to that side of the yard and be ready to catch the cars as they were cut off and kicked towards him. It is also averred that the use of the expression, “rip track,” fairly and reasonably meant and conveyed to the mind of the plaintiff the impression, according to the usage and custom in railroad yards, that all of the cars in that train would be carried over and placed upon the rip track, and none of them would be left on the lead; that no notice or information was given to appellee by any member of the switching crew that any of these cars were to be left on the lead, and he did not expect or understand that one would be left in that situation. It is further alleged that, in violation of the customary methods of doing this work, and without giving the plaintiff any notice of any change in the manner of its performance, the members of the switching crew cut off one of these cars, and left it on what is known as the “lead” track, while the plaintiff was in another portion of the yard; that, wljen another car had been kicked out towards him, which it was his duty to stop, he endeavored to do so, and, while climbing up on top of same for the purpose of setting the brakes, in the darkness, and not knowing of the presence of the car that had been left on the lead, the car upon which he had mounted came suddenly and unexpectedly in violent contact with the other, causing him to be thrown violently to the ground, resulting in the injuries of which he complains. The petition then proceeds to set out in detail the character and extent of the injuries resulting from the fall.

A trial before a jury resulted in a verdict and judgment in favor of the appellee for $5,000. Both of the railway companies have appealed, and join in the same briefs and assignments of error.

It will be observed that there were two separate and distinct acts of negligence charged as the cause of the injuries sustained. The first was in allowing the road engine to stand in the yards, with a brilliant electric headlight burning, while the appel-lee and his crew were doing their work of switching. The second was in leaving a box car on the lead near the rip track, without giving notieé to the appellee that this would be done. The court submitted both of these as grounds of recovery. The appellee testified that he had been employed as a switch-man by the appellants some time in the previous October, and at the time he was injured was performing the duties of what was called a “long field man.” He was working under the immediate supervision of a foreman named Mayfield. It appears from the record that it was the duty of the long field man to turn the switches, and to mount and set the brakes on cars that had been kicked or shunted in his direction. The crew . to which the appellee belonged consisted of four men besides himself and the foreman, May-field. These were the engineer and fireman in charge of the switch engine, Sanders, called the “short field man,” and Williams, designated as the “pin puller.” The entire crew was under the immediate supervision of Mayfield on this occasion. The tracks in the yards at Paris run north and south. The stock pens are located near the south end of the yards, and on the east side. The repair tracks, commonly referred to as the “rip tracks,” and the repair shops were on the west side of the yards, practically opposite the stock pens. Between the stock pens and the repair tracks were the main line and some other tracks used for various purposes. The freight and passenger depots were near the north limits of the yards. On the night of the injury, after spending some time working at the north end of the yard, the foreman gave the order to go to the switch leading to the -stock pens. Upon arriving there, the engine was coupled to five box cars. Mayfield, the foreman, testified that this group consisted of three bad-order cars, one car loaded with merchandise, which he desired to place upon the house track, and a good-order empty car to be left in some other position in the yard. Mayfield desired to take the bad-order cars to the rip track for repair, and to carry the others to the north end of the yard. He says that he so notified the engineer and switchmen when he gave the signal to move after the coupling had been made. Appellee, however, testified that the foreman, before giving the signal to move, used the expression, “rip track,” and that appellee inferred from this that all of the cars in that train were to be placed upon the rip' track, and that none of them would be left on the lead. The foreman, on cross-examination, admitted that he might have used that expression in calling to the long field man. According to the foreman’s testimony, which is not disputed, the train of five cars referred to was made up as follows: The merchandise car was on the extreme south end; next came the two bad-order cars; then a good-order empty; and next to the engine was the third bad-order car. When the train was switched over to the lead, with which the various repair tracks were connected, the merchandise car was left at some point on the lead. A diagram appears to have been used at the trial; but it is not incorporated in the record, and we are unable from the' testimony of the witnesses to determine the exact relative position in which this merchandise car was left. The two bad-order cars were then kicked to one of the rip tracks. This being done, the good-order empty was kicked down the lead toward the merchandise car. The appellee testified that, after coupling the cars at the stock pens, the engine and the other members of the crew went north for the purpose of coming down the lead to the rip track, but that he went directly west across the yards, lined up the switches on the main line, and then took his position on the lead near the rip track to catch the cars as they were kicked down that way. He says that he saw two cars pass down in charge of Sanders, the short field man; that when the next car came he mounted it for the purpose of setting the brakes, thinking that it was to go on to one of the repair tracks. He says he climbed to the top, and just as he “straightened himself” the car collided with another which had been left upon the lead, and he was thrown violently to the ground. As a result of the fall, his arms were broken, and he was otherwise injured. We gather from the evidence that the car which appellee mounted was the fourth car that had been kicked down the track, and that it collided with the merchandise car. It appears from Mayfield’s testimony that this car had been disconnected by him before any of the others hhd been kicke'd in that direction. He says that his purpose in leaving it in that position was to prevent the necessity of making an extra trip to the north end of the yards. The evidence further shows that at the time this switching was being done a freight engine destined to carry a train south within a short time thereafter, equipped with a brilliant electric headlight, was standing about 250 yards north and a little west of where the appel-lee was when he mounted the car from which he fell. This engine had been standing there about 30 minutes. The front of the engine was towards the south, and the light shone directly over the space occupied by the ap-pellee when he mounted the car. It was claimed in the petition that the brilliancy of the light interfered with the switchmen in the performance of their duties, and that the lights should have been hooded, or turned low, or in some way obscured so as to prevent blinding the men while at their work.

After submitting the issue of negligence in leaving a car upon the lead near the repair tracks, without notifying the appellee that this would be done, the court gave the following instruction as to negligence regarding the electric headlight: “Or, if yon believe from the evidence that at the time of the aforesaid accident and injury to plaintiff the defendants, by their employés, permitted a road engine to stand in the yards, with an electric headlight shining, and that such light was of such brilliance as to render it dangerous to switchmen in the discharge of their duties, and that, in attempting to go upon and stop said car, as set out in the preceding paragraph hereof, such light blinded plaintiff so he could not see the standing car aforesaid, or interfered with him in the discharge of his duty, and that permitting such light, if it was permitted, was negligence which proximately caused plaintiff’s injuries, you will find for plaintiff, unless you find for defendants under subsequent paragraphs hereof.”

It is insisted that this charge is erroneous because not warranted by the evidence. An examination of the record has convinced us that this contention is correct. There was sufficient evidence, it is true, for the jury to conclude that it was negligence to permit the freight engine to stand' in the yards, with a brilliant headlight burning, under the circumstances described in this case. But, conceding that to be true, the evidence fails to establish the fact that this particular act of negligence in any way contributed to the injury sustained. It is true that the appellee states as a conclusion that it did have some effect in bringing about his injury; but a fair analysis of the facts to which he testified shows that this was practically impossible. For instance, he testified that the engine with the headlight was north, and a little west of him, 250 yards distant. The car with which that on which he rode collided was to the south. Hence, in looking towards that car for the purpose of discovering its presence, his eyes would be turned away from the dazzling effects of the headlight. He also testified that before mounting the car he looked down the track and failed to see the merchandise car standing on the lead. He gives as a reason the fact that some other intervening objects interfered with his vision. According to his further testimony, when he reached the top of the car, and just as he “straightened himself,” the collision occurred, and he fell. In this state of the evidence we think it was clearly error for fhe court to submit that issue to the jury.

But the next question is: Should this error reverse the case? Not unless it can be said that it probably caused the rendition of an improper judgment. Generally where there are two grounds of recovery — one supported by the evidence, and the other not— and both are submitted to the jury, a verdict for the plaintiff should be referred to that ground which is authorized by the evidence. Under the peculiar facts of this case, however, we do not think it can be said that the error had no effect in bringing about the verdict rendered. It can hardly be said that the foreman, Mayfield, was guilty of negligence in leaving the merchandise car on the lead. His negligence, if any, consisted in the failure to give appellee notice that this would be done, or that it had been done. In order to prove that the appellee was not required from the orders of the foreman to anticipate that the car would be left in that situation, he testified that, according to the custom and usage among railroad men engaged, in that .line of business, the use of the expression, “rip track,” by the foreman, under the circumstances, signified that all.of the cars were to be carried to the repair tracks, and that none of them would be left upon the lead. In support of this, appellee introduced the-testimony of several witnesses to the same effect, who claimed, to be familiar with the, usage and custom in such matters in the different railway yards of Texas. But, conceding that such a custom prevailed, and that the appellee had a right to draw the inference which he says he did in this instance, yet, if he knew from other sources that the car was left in that position, there was no basis for a recovery upon that ground of negligence. Much evidence was introduced tending to show that the appellee knew of the presence of the merchandise car, and that the accident was due to an error on his part in miscalculating the distance between it and the car on which he was riding. The only evidence to the contrary was his unsupported denial. Appellants introduced in evidence a written statement made by the appellee soon after the injury occurred, in which the following language was used: “We were cutting cars for the rip track and the lead track. I caught a car that had been kicked onto the lead track, and climbed on it. I got on top all right; but this car struck the next car sooner than I expected, and it knocked me off.” In his cross-examination regarding this statement the appellee gives this explanation: “I remember that [the statement] being read over to me.. That was correct. I made that statement at a time when it was fresh in my memory, on May 28, 1912, three days after the accident occurred. When you gave me that statement a little while ago, I read it over to see whether it was correct, and it was correct as far as I know; yes, sir. It is not the truth, as stated in that statement, that I struck that other car sooner than I expected, and that is what caused me to fall off the car, and that I knew the other car was there. I did not know that the other car was on the track. That statement was made while I was in misery. I did not know what I was saying. It was three days after the accident, and I was all broke up. I was not unconscious that I know of.” Appellee also admitted that, in. going from the stock pens track to the place where he mounted the ear, ■he passed within about 33 feet of the merchandise car with which he collided, and was only about 40 or 50 feet distant from that car at the time he. undertook to get on the car from which he fell. Taking all these facts into consideration, together with what the evidence shows were the duties of a switchman occupying the position of the ap-pellee, and all of the circumstances and conditions under which he was working on. that occasion, the jury must have given very great -weight to his unsupported testimony, or must have taken into consideration the presence and condition of the electric headlight on that occasion. We have, then, this situation: There was ample evidence of negligence regarding an act which could not be considered a proximate cause of the injury, and but meager evidence regarding an act which may have, been a proximate cause. It is exceedingly probable that, in reaching the verdict they did, the jury took into consideration all of the facts and all of the conduct charged against the appellants, and based their finding on the conditions as a whole. We are of the opinion that the error committed by the court in giving the charge quoted probably led to the rendition of an improper verdict.

The third assignment of error complains of several separate and distinct rulings of the court in admitting evidence, and will not be considered. The same objection applies to the seventh assignment. All of the remaining assignments which are not virtually disposed of, or their consideration rendered immaterial, by the assignment which we have sustained are overruled.

For the error in giving the charge referred to, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

It is insisted in the motion for a rehearing that the charge submitting the issue of negligence on the part of the appellant in permitting a road engine, equipped with a brilliant headlight, to stand in the yards at the time, if erroneous, was invited by certain special charges presented by the appellant. Upon further consideration we have concluded that this contention is correct. Some of the special charges requested and refused by the court embody in substance the same propositions of law, and call for a determination of the same issue of fact, as those involved in that portion of the charge which we held erroneous. This being true, the error should not cause a reversal of the judgment. Railway Co. v. Sein, 89 Tex. 65, 33 S. W. 215, 558.

In view of the disposition which we make of the case, it is proper that we should discuss some of the remaining assignments of error.

Upon the trial the defendant offered to prove by N. H. Ragland that the appellee had at one time been employed by the Paris & Mt. Pleasant Railroad Company, and had been allowed to resign from that service on account of his drinking while on and off duty. This testimony was excluded on objection. It appears from the bill of exception that appellee had been asked, upon cross-examination, if he had not been permitced to resign under the conditions mentioned, and he had answered that he had not. This testimony was evidently intended for the purpose of impeaching the appellee upon that issue. This was a collateral matter, and the court ruled correctly.

On his direct examination the appellee was asked this question: “Do you know whether there is any test required on the part of railroads as to the physical condition of their employ és?” An answer to this was objected to by appellant, on the ground that it was immaterial. The objection was overruled, and the appellee .ansivered, “You have to stand a physical examination by a doctor before yon can be employed.” There was no error in the ruling complained of. Other testimony offered by the appellee tended to show that his injuries were of a character that impaired his efficiency for railway service. The evidenpe objected to was material as tending to show the consequences of his impaired efficiency, and that, because of the fact that a physical examination is required, he probably would not thereafter be able to secure employment in the railway service. The fact that it was not shown that the appellant required any such test does not justify the exclusion of the proffered evidence.

The appellee was permitted to read to the jury portions of the deposition of Dr. Ax-tel, a physician, who examined the appellee at the instance of his counsel for the purpose of testifying as to the appellee’s physical condition. Dr. Axtel stated, in substance, that he had examined the appellee, and found that he had suffered Oolle’s fracture of the right wrist and a fracture involving the left elbow; that there was marked stiffness in the use of the elbow and of the left arm, and a weakness in the use of both hands. He had tested the left arm in different positions with reference to the use that could be made of it, and had also tested the appellee’s grip in both hands. Appellee’s strength or ability to grip with his hands was considerably impaired. He also found that there was some difficulty in the use of the joint of the elbow and of the left arm when an effort was made to raise it and straighten it. He gave it as his opinion that the appellee’s ability to perform the duties required of a switchman or brakeman in climbing up and down cars, operating brakes, and making couplings had been considerably impaired. He testified in detail regarding other physical conditions found to exist. This testimony was objected to upon the ground that it was self-serving and hearsay; that the answers showed that the opinion of the witness was based solely on what was told him by the plaintiff as to his physical condition. We do not think this objection tenable. It does not fall within the rule announced in the cases referred to. While some of the facts detailed by the witness may have been based upon what the appellee told, him, others were.not necessarily derived from that source. The objection was to all of this testimony. While some of it may have been subject to exclusion, clearly all of it was not.

We have carefully considered all of the remaining assignments of error,, and have found no ground for reversing the judgment.

The motion for a rehearing is granted, and the judgment of the district cofirt is affirmed.


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    HOME INS. CO. v. PETERMAN.
    (Court of Civil Appeals of Texas. Texarkana.
    March 19, 1914.
    Rehearing Denied March 26, 1914.)
    1. Appeal and Ebrob (§ 1066) — Review— Harmless Ebbob.
    Where the evidence showed no breach of a condition that a fire policy should be void if the property should be vacant “or” unoccupied for ten days, the error in a charge which required the property to be both unoccupied and vacant for a period of ten days is harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]
    2. Instjeance (§ 665) — Fire Insubance — Actions — Evidence.
    In an action on a- fire policy, evidence held to show that the condition that the policy should be void if the building should be vacant or unoccupied for. ten days was not broken.
    [Ed. Note. — For other cases, .see insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.]
    Error to Titus County Court; Sam Porter, Judge.
    Action by H. W. Peterman against the Home Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    This suit is by defendant in error on a policy of fire insurance covering $700 upon a dwelling house. The house was destroyed by fire on March 20, 1912. The insurance company answered by general denial, and specially averred the clause of the policy avoiding it if the dwelling house be or become vacant or unoccupied and so remain for ten'.days. The judgment was in favor of the plaintiff in accordance with the verdict of the jury.
    The evidence establishes the fact of. loss of the dwelling house by fire on March 20, 1912, and to the value of $700; The policy contained the provision: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto,' shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” The evidence conclusively establishes the fact that there was neither vacancy nor lack of occupancy of the insured building for ten days before its destruction by fire. ' • •
    Wm. Thompson and Will C., Thompson, both of Dallas, for plaintiff in error. J. M. Burford, and T. .0. Hutchings, 'both of Mt. Pleasant, for .defendant in error.

      E'er other cases see same topic and se.ction NUMBER in JD®0- Dig. ,4,Am. Dig. Key-No, Series & Rep’r Indexes

   LEVY, J.

(after stating the facts as above).

The court instructed the jury that the policy would be void, and that plaintiff could not recover if the insured building “had, at the time of its destruction, been vacant and unoccupied, and had so remained for a period of ten days prior to its destruction.” The plaintiff in error predicates error upon the charge on 'the ground that, when a policy of fire insurance provides that it shall be void on the happening of either of two contingencies, it is error to charge that both contingencies must happen concurrently before the policy is avoided. The court’s charge is technically incorrect, but we do not think it sufficiently affords ground requiring reversal of the' judgment, in view of the evidence of this particular case.

The jury could reasonably have returned no other kind of verdict under the evidence than the one returned. It was admitted that Mr. Carpenter was the last occupant of the dwelling house before it burned. As showing there was non-occupancy by Mr. Carpenter for full ten days before the happening of the fire on March 20th the plaintiff in error must rely, if at all, upon the testimony given in respect thereto by Mr. White. The effect of Mr. White’s evidence is that, according to his recollection, and without any incident to fix the precise date of removal in his mind, Mr. Carpenter, a tenant of defendant in error, moved to the place known as the Bivens place about one week or two weeks before that place was sold to Martin. He says finally in these words: “Mr. Carpenter moved out there about a week before the sale, according to my best recollection.” The. deed .to Martin of the Bivens place, offered in evidence to fix the date of the sale referred to, showed that the sale was made March 15, 1912. Of course, if the statement is to be construed as meaning and intending to assert as a certain fact that Carpenter had lived there on the Martin place a week before March 15th, the effect of such evidence would be to show that the house of defendant in error was vacated and unoccupied by Carpenter for more than ten full days before its destruction. But it is quite significant that Mr. White only undertakes to give the date according to recollection, and not positively, and his testimony in this respect should therefore be considered in the light of the other testimony, in order to determine the removal.

Carpenter, the tenant, testifies positively, and is corroborated by defendant in error, that he began to move from the house of defendant in error to the place known as the Bivens place, which was bought by Martin on Tuesday, March 12th, before the house burned on Wednesday, March 20th, and that it took three days to move all tiie furniture out of the house to the new place of Mr. Martin’s. Carpenter says' he began sleeping at the Bivens place on the night of the second day of removing. It is not contended that Carpenter ever moved; to the Bivens place but this one time. So it is the present removal to the Bivens place that the witnesses are referring to.

Neither Carpenter nor White has any interest in the lawsuit And clearly they are each intending to describe the same identical moving from the house of defendant in error to that of Mr. Martin. Carpenter says he is positive of the time and date being as he states the same, while Mr. White risks only his recollection. The conclusion therefore in all the circumstances is reasonably and fairly warranted that Mr. White was not intending to conflict with or dispute the statement of Carpenter that he actually began moving to the Martin house on March 12th, which was three days before the sale of the Martin place on March 15th. There is no reason appearing to indicate an intended conflict or dispute between Carpenter and White as to the day of the actual moving; and reasonably the jury, as men of average fairness and intelligence, would so coneludt, and give weight to the real and positive fact that the removal began on March 12, 1912. And, giving the differences of the statements the fairly reasonable interpretation mentioned, there is presented no actual conflict or difference of fact in the record. We therefore overrule the assignments which go to this question, as being without injury.

The third assignment is overruled.

The judgment is affirmed.


text:
    GUARANTY STATE BANK OF CARTHAGE v. HULL.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 29, 1914.
    On Rehearing, March 19, 1914.)
    1. Appeal and Eeeoe (§ 747) — Assignment of Ceoss-Eeeoe — Filing.
    A cross-assignment of error which was not filed with the clerk of the trial court, as required by rule 101 for the district and county courts (159 S. W. xi), will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. § 747.]
    On Rehearing.
    2. Banks and Banking (§ 118) — Authoeity ■ of Peesident — Sufficiency of Evidence.
    In an action by a bank upon an overdraft, evidence held insufficient to warrant a finding that the president of the bank to whom the defendant had delivered cotton in payment of the overdraft was the active president; there being testimony that he was merely an honorary president.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 1726-1738; Dee. Dig. § 118.]
    3. Banks and Banking (§ 102) — Officees— Authoeity to Make Collections.
    One who delivered cotton to the honorary president of a bank, knowing that the latter had no authority to deal on behalf of the bank, under an agreement by the latter to apply the proceeds to the payment of an overdraft at the bank, cannot hold the hank on a failure so to apply the proceeds.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 239-243; Dec. Dig. § 102.]
    Appeal from District Court, Panola County; W. C. Buford, Judge.
    Action against the Guaranty State Bank of Carthage against E. A. Hull. Judgment for the defendant, and plaintiff appeals.
    Reversed and remanded on rehearing.
    The appellant bank sued the appellee for $3,042.50, being the alleged balance due of principal and interest upon authorized overdrafts drawn by appellee and paid by appellant variously from May 1, 1911, to May 15, 1912. The appellee answered by general denial and by averment of his payment to the bank of the debt sued for out of the proceeds arising from the sale of 128 bales of cotton, made for him and the bank through its president, who had authority to collect the debt and receive such payment of the same. Appellee also filed a cross-action for debt against the bank; but, as all such pleading was retired from the ease by a demurrer thereto sustained by the court, it is unnecessary to further mention it. By supplemental petition appellant entered demurrer and exceptions to appellee’s answer of payment, and answered by general denial and by averment that the alleged cotton transaction was a dealing .wholly between R. E. Trabue acting for himself individually and the appellee, and not in furtherance of the business of the bank, and, if undertaken to be made for the bank, was without the authority of its president as such to make in behalf of the bank, and of which the bank had no knowledge and did not ratify and confirm. Appellee replied to the allegations of the supplemental petition by general denial and plea of estoppel. There was a trial to the court without a jury, and judgment was entered for the bank for $658.44, principal and interest, being the difference between the sum sued for and $2,165.81, found by the court to have been paid to the bank by appellee. The facts appear in the ruling upon the assignments.
    Brooke’& Woolworth, of Carthage, for appellant. P. H. Prendergast and Beard & Davidson, all of Marshall, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   LEVY, J.

'(after stating the facts as above). The first assignment, as does the second, predicates error upon the court’s overruling certain special exceptions to the appellee’s answer. The answer by intendment, and in legal effect, fully and sufficiently, as against the exceptions urged, pleads payment of the debt sued for to the president of the bank as such and having authority to collect the debt and receive for the bank such payment.

The third assignment and those following challenge the credit of $2,165.81 upon the overdraft indebtedness sued on by appellant. It appears from the evidence that by prearrangement appellee drew various overdrafts on, and the same were paid by, appellant bank. And, according to appellee’s admission, his indebtedness in March, 1912, to the bank by overdrafts, including interest, of $5,165.81 is correct. On March 18 or 19, 1912, there was placed in the bank to ap-pellee’s credit, through R. E. Trabue, president of the bank, the sum of $3,000 cash, which appellant bank admits was used and applied by it at the time in reduction of the amount of the overdraft indebtedness. And the point of difference in this suit between the parties is concerning the further amount of payment on the overdrafts claimed to have been made by appellee on March 18 or 19, 1912. The court made the finding of fact, appearing in the record, that there was owing the bank $5,165.S1 on overdrafts by appellee, and that R. E. Trabue, while president of the bank, collected such amount in cotton from appellee, and agreed to give him credit at the bank for such amount so collected, and that Trabue did give him credit for $3,000 of this amount, but failed to give him credit for the other $2,165.81, as should have been done. In order to determine whether the findings of the court are warranted by the evidence, it is undertaken to state what we conclude are the salient facts bearing upon the issue, and it would serve no purpose to make further statement from the record. It appears that R. E. Trabue was the active president of the appellant bank, and had been for several years, and continued to be until June 1, 1912, when he sold his stock and resigned the presidency. He was also a merchant, and in his merchandise business bought cotton generally from the public. Appellee says he owed Tra-bue a store account of $325, less a credit of $250. Trabue owed appellee a personal indebtedness of something over $12,000, satisfactorily arranged between them. At the time the overdraft indebtedness to the bank was due and owing, the appellee was the owner of 128 bales of cotton raised on his farm, and of the aggregate weight, according to the weigher’s receipts, of 63,573 pounds. On March 18 or 19, 1912, R. E. Trabue came to appellee’s farm with the purpose of purchasing the cotton. According to the testimony of appellee, a sale of the cotton was effectuated upon the occasion, at the agreed price of 11 cents a pound upon the total weight mentioned, aggregating in amount $6,993.03, under the agreed terms and conditions that Mr. Trabue would deduct from the purchase price the sum of $5,165.81, and take and receive this amount and credit it in the appellant bank to his overdraft indebtedness. Appellee particularly says that Mr. Trabue put down on a piece of paper the weights of the cotton and the agreed price, and arrived at the total price of the cotton, and then “gave me a little book” which “showed $5,-105.81 overdraft,” and then from the purchase price of the cotton deducted the $5,-165.81, together with the account “that I would be owing him in the store.” The inference from the evidence is that the “little book” which Mr. Trabue handed appellee was the passbook of appellee at the bank. Trabue received and took the cotton under this agreement. Appellee further says that he was dealing at the time, in respect to the cotton, with R. E. Trabue as president of the bank, and with the purpose and intention of paying off the overdrafts to the bank, and, “but for the fact that Mr. Trabue was president of the bank, or an officer of the bank, I would not have sold him the cotton on time. I never sold anybody cotton on time except Trabue for the bank. X wouldn’t have let him had that cotton except he promised that he would put that money to my credit in the bank. Except that I was dealing with him as president of the bank, and that he was to put the money to my credit, I wouldn’t have let him had the cotton.” It appears in this connection that appellee and Trabue at the time, of the cotton transaction also undertook to adjust the personal indebtedness of Trabue, amounting to some $12,000, by having Trabue execute a note for about $14,000, which amount consisted of the $12,000, and interest thereon, and the difference between $5,165.81 deducted from the cotton and the total price agreed upon for the 128 bales of cotton. Trabue secured this note with two policies of life insurance. After receiving the 12S bales of cotton, Tra-bue reduced it to money, and placed only $3,000 of the purchase price to appellee’s credit in the bank in reduction of the overdrafts. After ascertaining that Mr. Trabue had only placed $3,000 to his credit, the ap-pellee went to the bank and informed Mr. Wooten, an officer of the bank, and Mr. Biggs, the cashier, concerning the 128 bales of cotton transaction with Trabue, and insisted that he had thus paid to the bank the overdrafts with the cotton, and that credit in full should be given him. The cashier admits that appellee came to the bank and stated the facts and insisted on having paid the overdraft. Mr. Trabue testified for the bank, admitting that he had taken and received the 128 bales of cotton from appellee and reduced them to cash, and that the weight and price stated by appellee was correct, and that he and appellee agreed to deduct and did deduct from the purchase price payable to him the amount of $5,165.81, and that appellee “asked me to pay it to the bank for .him, and I agreed to pay it to the bank, and I agreed to put it in the bank, and I only put $3,600 in the bank for him.” And the only difference between the testimony of Mr. Trabue and appellee in relation to the 128 bales of cotton and the agreements and understanding at the time concerning the same was that Mr. Trabue asserted that he was acting in his individual capacity, and not as president of the bank for the bank.

It is not' believed that from the record this court would be wárranted in setting aside the findings of fact made by the court, as being' without any evidence to support the same. The conduct of appellee and Mr. Trabue in relation to their dealing about the 128 bales of cotton makes it quite evident that appellee was surrendering his cotton, and Mr.'Trabue was taking and receiving the same, with the sole intention and Purpose of using and applying the bulk of the proceeds arising from the sale of the cotton to pay and satisfy the overdraft indebtedness to the bank, which was then, as known to both parties, due and payable. And, if force be given to the admission of Mr. Trabue, as must be done, that in the deal about the cotton it was agreed to deduct, and there was deducted at the time, the amount of $5,165.81 from the agreed price therefor of $6,993.03, in order “to put in the bank” and “to pay it to the bank” for him, there would be supported the conclusion, as made by the court, that Mr. Trabue was undertaking, in his capacity as president, to collect and receive payment for the bank on the entire overdraft indebtedness to the bank. Mr. Trabue at the tiriie had, according to the inference from the record, the ap-pellee’s passbook showing his indebtedness to the bank, and in the deal for the cotton used the statement thereon for' deducting from the agreed price the bank’s debt, and agreed to take that amount and put it, as testified to by appellee, to appellee’s “credit at the bank.” Such state of facts, in connection with the further fact that Mr. Tra-bue did, as he admits, put $3,000 of the amount to appellee’s credit on the debt at the bank, makes inconsistent any intention and purpose on Mr. Trab'ue’s part of not acting officially for the bank. Going to appel-lee’s farm to deal about his cotton, armed with appellee’s passbook, and dealing expressly about the bank’s debt, would tend to show the purpose of acting officially for the bank. And agreement to give “credit at the bank” on a debt involves the intention and purpose of acting as an officer of the bank; for only an officer would be authorized to make entries on the books of the bank. Taking the court’s findings as the facts, as we do, it would follow that the credit allowed appel-lee by the court was properly done. In the case of Bank v. Emery, 78 Tex. 598, 15 S. W. 23, after applying the principle that a president of. a bank has authority by virtue of his office to collect or compromise debts of the bank, and to take personal property in furtherance of the payment of the debt, it was remarked: “We know of no reason why a national bank corporation may not, for the purpose of collecting a uebt due it from a creditor, otherwise unable to pay the debt, have such transactions as occurred in this case. At any rate, having had them, and received the property, it cannot, while enjoying the fruits of the transaction, be absolved from the performance of its obligations to others assumed by its officers as a means of getting possession of the property, on the plea that its acts were ultra vires.” And this principle has been numerously applied in the reported cases. Here, according to the facts found by the court, $3,000 of the amount collected in cotton by appellant’s president was used and applied to the debt, and, after knowledge of the facts, such amount was still held and continued as a credit by the bank. Appellant, by enjoying the fruit and benefit of a part of the amount after knowledge of the facts of the transaction, and insisting upon the same, is not in a position to oppose a credit for the balance of the same transaction.

Appellee’s cross-assignment does not appear to have been filed with the clerk of the trial court in accordance with rule 101 for district and county courts (159 S. W. xi), and it is therefore not considered.

The judgment is affirmed.

On Rehearing.

Appellant insists that there was error on the part of this court in concluding that the evidence established the facts that Mr. Trabue had and carried the “passbook of appellee at the bank,” and that he was the “active president” of the bank at the time of the alleged cotton dealing in suit. The insistence is entirely correct. The evidence does not warrant the finding in reference to the “passbook.” And, going more carefully to the record, we now believe that it does not warrant the finding that Mr. Trabue was the “active president” of the bank at the time. Mr. Ash testified: “I am president of the Guaranty State Bank; I became connected with the bank in that capacity the first part of last year” — which was 1912. If consideration be given to the statement of Mr. Ash, as must be, then both he and Mr. Trabue were presidents of the bank at the same time. There being two presidents of the bank at the time, then the further testimony of Mr. Biggs, the cashier, which is the only evidence bearing upon the capacity of Mr. Trabue, must be observed in respect to Trabue’s authority. Mr. Biggs testifies, according to the record, that Mr. Trabue “was honorary president of the bank, but not active in the bank. He had a store over there, and stayed in the store. * * * Mr. Trabue never stayed in the bank; he didn’t draw any salary, and performed no services in the bank. Trabue was Running his store. He was president of the bank.” And to meet this evidence there appears only the statement in the general language of appellee that Mr. Trabue “was president of the bank.”

If Mr. Trabue as honorary president did not have the authority to bind the bank, and appellee knew the fact of his want of authority, and, so knowing, nevertheless dealt with him on account of the bank, he could not hold the bank. But whether appel-lee knew of any want of authority on the part of Mr. Trabue does not satisfactorily or sufficiently appear from the evidence, and we do not undertake, in view of the course this rehearing must take, to make any ruling or finding now in respect thereto. It is a vital question in the case, provided it be found, as a fact, that appellee was undertaking to deal with Trabue as an officer of the bank having authority to make the collection and give the credit in suit. It is not a question in the case, though, if the dealing about the cotton in suit was as a fact purely a personal and private transaction between appellee and Mr. Trabue.

After a thorough reconsideration of all the facts of the record, we are constrained to conclude that there was error in affirming the judgment, and that the judgment should be reversed, and the cause remanded for another trial. As the reversal occurs on the facts of the record, we do not deem it proper to undertake to comment upon or discuss them. The want of authority, as disclosed by the facts in the record, on the part of Mr. Trabue to bind the bank is the prominent ground for the reversal.

In reference to the insistence of appellant that there was no sufficient plea of payment by appellee, it is remarked that the answer might probably be amended at another trial, and it would serve no good purpose now to make further ruling in respect thereto.


author: HODGES, J.

text:
    BRAY-ROBINSON-CURRY WOOLEN MILLS v. W. F. WALKER & SON et al.
    (Court of Civil Appeals of Texas. Texarkana.
    March 12, 1914.)
    1. Principal and Agent (§ 19) — Actions— Btjbden of.Pboof.
    In an action for a debt which defendants claimed they had paid to plaintiff’s agent, defendants have the burden of proving the agency of the one to whom they paid the debt.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 36; Dec. Dig. § 19.]
    2. Principal and Agent (§ 22) — Evidence to Establish.
    Declarations of an agent as to his authority are incompetent to prove agency.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.]
    3. Justices of the Peace (§ 29) — Liability —Justice’s Surety.
    Where -defendants paid their account to a justice of the peace, to whom it was sent for suit, defendants cannot recover from the sureties on the official bond of the justice, for, if the payment was to the justice in his official capacity, defendants are discharged, and, if not, the sureties cannot be liable; ’the bond not extending to the acts of the justice in his unofficial capacity,
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 56-65; Dec. Dig. § 29.]
    4. Payment (§ 5) — Authority to Collect— Justice oe the Peace.
    Rev. St. 1911, art. 2322, provides that, when a claim is lodged with a justice of the peace for suit, it shall be his duty to issue forthwith a writ or citation' for the defendant or defendants, while article 2283 requires the justice to give a bond for the faithful performance of all the duties required by law. A justice to whom a claim had been transferred for suit collected it without suit, by representing that he was so authorized. Seld, that the payment to the justice, who was not authorized to make the collection, did not discharge the debt- or, for it was not an official act; the requirement that a justice give a bond being no more than the statutory requirement that the county judge give a bond, and the justice not being authorized to bind the sureties on his bond by receipt for the collection of a claim transferred to him for suit, as is the case of a constable with respect to a claim transferred to him for collection.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 7, 8; Dec. Dig. § 5.]
    Appeal from Shelby County Court; J. M. Sanders, Special Judge.
    Action by the Bray-Robinson-Curry Woolen Mills against W. F. Walker & Son, who im-pleaded others. From a judgment for defendants, plaintiff appeals.
    Reversed and rendered.
    Davis, Davis, & Davis, of Center, for appellant. S. H. Sanders, A. L. Kirkpatrick, and Carter & Walker, all of Center, for ap-pellees.

      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HODGES, J.

In November, 1912, thq ap-pellees were indebted to the appellant in the sum of $131 on account for merchandise purchased. Some time during that month the account was placed in the hands of Davis, Davis & Davis, attorneys at law, for collection, with instructions to file suit if it was not paid. On the 26th day of that month Davis, Davis & Davis mailed a verified statement of the account to P. H. Davis, a justice of the peace, at Teneha, in Shelby county, with directions to file the same for suit, and to issue citations immediately. They also inclosed with the account three typewritten copies of the citations, to be signed by the justice. The account was received by P. H. Davis, the justice of the peace, in the due course of mail; but, instead of issuing the citations as directed, he called upon Walker & Son and presented the account for payment, telling them that it had been placed in his hands for collection. Walker & Son gave P. H. Davis a check for the amount of the account, taking his receipt for the same. The check by which the payment was made was, at the request of P. H. Davis; made payable to him personally. This form was suggested by Davis in order that he might get a commission for making the collection. The attorneys representing the appellant knew nothing of this transaction till some time thereafter, but thought their directions for filing: suit had been obeyed by the justice of the peace. It seems that before the time for the trial arrived T. O. Davis, of the firm of Davis, Davis & Davis, called upon Walker & Son and mentioned the fact that they had been sued upon this claim, and was then informed for the first time that the amount had been paid to P. H. Davis, and that no' suit had actually been filed. Walker was-then informed that P. H. Davis had no authority to collect the claim; tha,t it had been sent to him for suit, and not for collection-in that way. The attorneys for appellant,, however, made demand upon P. H. Davis-for the money, but were unable to collect it. Shortly afterwards P. H. Davis died. This suit was filed by the appellant against Walk- ■ er & Son upon the same claim, in the court presided over by the successor to P. H. Davis.. Practically the only defense presented by Walker & Son was the payment theretofore-made to P. H. Davis. They also impleaded, the bondsmen of the deceased justice of the peace, and asked for judgment over against them in case the plaintiff should recover in. the suit. Judgments were rendered against the appellant in both the justice and county courts. It appears that in the county court the sureties of P. H. Davis were dismissed from the case on their demurrer.

There are several assignments of error,, but only that which challenges the sufficiency of the evidence to support the verdict, will be considered.

The court gave no general charge, but submitted only the following special issue: “Did Bray-Robinson-Curry Woolen Mills, the plaintiff, authorize P. H. Davis to collect from W^ F. Walker & Son, the defendants, the sum-,of money owing by the defendants to the plaintiff? Answer yes or no, accordingly as-you may find. The burden of proving that, the plaintiff did so authorize the said P. H.. Davis is on the defendants, W. F. Walker & Son.” To this question the jury returned an-affirmative answer, and the court thereupon entered a judgment in favor of Walker &. Son.

The question before us is: Was the-evidence sufficient to support that finding? As stated by the court in submitting this special issue, the burden of proving the agency of P. H. Davis for the purpose of collecting the debt from Walker & Son rested upon the appellees. The only testimony which even tended to show agency was that of one of the Walkers, who stated that P. H. Davis told him át the time he presented the account for collection that the claim had been placed in his hands for that purpose. That the declarations of the agent are incompetent to prove agency is so well settled: that it is unnecessary to cite authorities. The verdict of the jury is clearly without ■evidence to support it.

It is insisted, however, by the appellees that P. H. Davis had the legal authority, as a justice of the peace, to collect this -debt under the circumstances, and that a payment to him was sufficient to discharge them from further liability. A cross-assignment of error is presented complaining of the action of the court in sustaining the general exception interposed by the sureties of Davis to that part of the answer which sought to hold them liable. It is difficult to see how Walker & Son could have any ■concern in fixing liability upon the bondsmen of P. H. Davis for the default of their ■principal, under the circumstances of this ■case. In order to hold the sureties liable for the failure of Davis to pay over the mon■ey which he received from Walker & Son, it was necessary to show that he received it in his official capacity. Heidenheimer v. Brent, 59 Tex. 533; State v. Griffith et al., 74 Ohio St. 80, 77 N. E. 686, 6 Ann. Cas. 917, And notes; Henderson County v. Richardson et al., 15 Tex. Civ. App. 699, 40 S. W. 38; Polk v. Peterson, 93 S. W. 504. If Davis did •so receive it, that fact alone discharged Walker & Son from any further liability on the Account, notwithstanding his failure to pay it ■over to the proper parties. On the other hand, the appellant has no just ground of complaint, because it pleaded no cause of action against the sureties. They were not, in fact, proper parties to this suit, and the court correctly discharged them. U. S. Fidelity Guaranty Co. v. Fossatti, 97 Tex. 497, 80 S. W. 74.

But the question is: Did the court ■err in rendering the judgment he did, notwithstanding the insufficiency of the evi•dence to sustain the particular verdict that was returned? In other words, the facts being undisputed, does the evidence show a payment which legally discharged Walker & Son from further liability on the account? Dr, to make the question more specific still, ■does the evidence show that P. H. Davis received the payment from Walker & Son in-his official capacity as a justice of the peace? If he did, then it follows from what has ■been said Walker & Son are discharged from the debt; if he did not, they are still liable, and, under the facts, the court should have instructed a verdict against them.

In determining whether or not an officer performs an act in his official capacity, we must look to the various statutory and common-law requirements imposed and authority conferred upon Mm. If the law expressly, or by necessary implication, requires or authorizes the performance of the act in ■question, then it is. an official act; otherwise It is not. The fact that the officer may assume official authority, or that some one in dealing with him may rely upon his official character and trust him solely because i he is an officer, is of no consequence. Such an assumption on the part of the officer, or such reliance on the part of a private party, cannot make that an official act which is not such by law. When an officer acts officially he is the representative of the government or municipality to which he belongs in the particular undertaking, and he cannot claim such representative character except when performing those duties or exercising those powers which are prescribed by law. His sureties guarantee only the faithful discharge of his official duties, not his private or unofficial undertakings. We come, then, to the question: Is there any law which expressly or by necessary implication made it the duty of P. H. Davis, as a justice of the peace, to receive money in payment of claims placed in his hands for suit? A justice of the peace is a judicial officer, but he also has some ministerial duties to perform in connection with the exercise of his judicial functions. In filing papers, keeping his records, and issuing the various writs emanating from ,his court, he performs duties similar to those required of the clerks of the district and county courts. The statute requires him to give a bond with the following condition: “That he will faithfully and impartially * * * perform all the duties required of him by law, and that he will promptly pay over to the party entitled to receive it all moneys that may come into his hands during his term of office.” Article 2283, Rev. Oiv. Stat. 1911. Article 2322 provides as follows: “When a claim or demand is lodged with a justice of the peace for suit, it shall be his duty to issue forthwith a writ or citation for the defendant; and, if there be several defendants residing in different counties, one citation shall be issued to each of such counties.” When Davis received through the mail from the appellant’s attorneys the claim against Walker & Son, it was his legal duty to enter the case on his docket and issue the necessary citations to the defendants. It was no part of his duty to undertake to make a personal collection of the money from Walker & Son without suit.

We are referred to the dissenting opinion of Justice Fly in the case of Polk v. Peterson, supra, as holding directly to the contrary of what has just been announced. While the precise question here under consideration was not involved in that ease, the dissenting justice used language which justifies the reference. He says that a justice of the peace is the only judicial officer required by our statute to give an official bond, and argues 'that, by reason of the conditions of that bond — that he will promptly pay over to the party entitled to receive it all moneys that may come into his hands during his term of office — it is contemplated by law that the justice of the peace may receive money belonging to other parties -in his official capacity. From that he concludes that a justice of the peace may, in his official capacity receive money on claims placed in his hands for collection by private parties, and that the sureties on his official bond are responsible' for his failure to pay such money over to the parties entitled to receive it. We do not think this conclusion is a necessary deduction from the premises assumed. In the first place, a justice of the peace is not the only judicial officer required to execute an official bond. Article 1732 of the Revised Civil Statutes of 1911 makes it the duty of the county judge to execute a bond with the following conditions: “That he will pay over to the person, or officer, entitled to receive it, all moneys that may come into his hands as county judge, within thirty days after he shall receive the same.” While the equivalent words, “as justice of the peace,” are omitted from article 1911, which prescribes the conditions of the bond of a justice of the peace, yet we think they should be supplied in any legitimate construction of that article. This conclusion is sustained by the absurd consequences which would follow a literal application of the language of the statute. To illustrate: A justice of the peace may engage in the practice of law and the collection of claims either privately or through litigation in other courts in his county; yet no one could contend with any show of reason that the sureties on his official bond are responsible for his failure to pay over to his clients money which he had thus collected for them. We know of no statute which makes it the duty of a justice of the peace to act as a private collector of claims, or that makes his bondsmen responsible for such collections when made by him. There is a statute (article 7148) which provides that constables may, by giving an official receipt for a claim placed in their hands for collection, bind the sureties on their official bonds. But there is no such provision relating to a justice of the peace. There are many duties imposed by law on justices of the peace which make them custodians of funds belonging to other parties, or which should by them be paid over to other officers “entitled to receive it.” In civil cases, for instance, a justice of the peace may collect costs that belong to other officials and witnesses, as well as jury fees, all of which must be paid over to the parties entitled to receive them. A justice of the peace may also become the custodian of funds paid into the registry of his court during the progress of a suit, to await its final determination. He has the power, and it is made his duty by the Code of Criminal Procedure, in certain instances to collect fines and forfeitures, which he must pay over to the county treasurer at stated intervals. It will thus appear that this provision of his bond which requires him “to pay over to the parties entitled to receive it all moneys that may come into his hands during his term of office” may be referred to these different duties, and there is no necessity for extending liability to private collections in order to give effect to that provision of the bond. It has been held that the district clerk has no authority to receive money on a judgment rendered in the court of which he is the clerk, and that, when he does so receive money his bondsmen are not liable for his misappropriation. Ry. Co. v. Walker, 93 Tex. 611, 57 S. W. 568. If a clerk cannot legally receive money paid on a judgment rendered in the court with which he is officially connected, we are at a loss to understand how a justice of the peace may do the same thing and claim it as an official act. The statute provides a method for collecting money due on judgments rendered in the justice courts, and it does not make the justice the depositary of the sums collected.

We not only think the court erred in submitting the issue to the jury, but that he should have instructed a verdict for the appellant.

The judgment is accordingly reversed and here rendered for the appellant; and all costs, both of this court and of the court below, are taxed against the appellees.


author: WILLSON, O. J.

text:
    LADIES OF MACCABEES OF THE WORLD v. KENDRICK.
    (Court of Civil Appeals of Texas. Texarkana.
    March 11, 1914.
    Rehearing Denied March 19, 1914.)
    1. Insubance (§ 819) — Mutual Benefit Insurance — Misrepresentations—Truth of Answers.
    In a statement made by decedent in applying for a mutual benefit certificate, she was asked whether she was then in good health, and whether she had ever changed or been ordered to change her residence on account of health, after which she was asked “have you consulted or been attended by any physician during the past 5 years?” which she answered, “No,” following which were questions as to what was the cause for each consultation or attendance, and whether decedent had fully recovered from each illness. Held, that the fact that decedent was attended by a physician at a natural childbirth within five years did not make her answer to the quoted question false; that not being an illness or ailment within the meaning of the question.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. § 819.]
    2. Insurance (§ 723) — Mutual Benefit Insurance — Statements—Palsity.
    A negative answer to a question asked insured, “Have you ever had a surgical operation performed or received treatment in a hospital, sanitarium, retreat, or any public or private institution for the treatment of physical or mental disease?” was not made false by proof that insured had been operated on by a physician by surgical instruments at her home.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.]
    3. Insurance (§ 723) — Mutual Benefit Insurance — Statements—Palsity.
    A comma will not be supplied by construction after the word “performed” in order to make false a negative answer to a question asked insured, “Have you ever had a surgical operation performed or received treatment in a hospital * * * or any public or private institution for the treatment of physical or mental disease?” where the proof showed that insured had been operated on at her home.
    LEd.. Note. — For other cases, see Insurance, Cent. Dig. §§ 1859-1865; Dec. Dig. § 723.]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Action by William D. Kendrick against the Ladies of the Maccabees of the World. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee was the beneficiary in a certificate issued by appellant insuring the life of his wife in the sum of $1,000. The wife having died, and appellant having refused to pay the certificate, this suit was brought by appellee to enforce the contract. Appellant contended that the deceased had “guaranteed and warranted” that all the statements made by her in her application for membership in the order, and in reply to questions propounded to her by its medical examiner, were true, whereas, certain of same were false, and that therefore, by the terms of the contract, it was not liable. Of the statements so made by deceased, it alleged that those made in reply to the following questions were false: (17) “Are you in good health at the present time? Answer: Yes.” (19) “Have you consulted or been attended by any physician during the past 5 years? Answer: No.” (25) “Is there anything to your knowledge or belief in your physical condition, family or personal history or habits, tending to shorten your life, which is not distinctly set forth above? Answer: No.” (28) “Has any of your family or near relatives, etc., ever had rheumatism? Answer: No.” (32) “Have you now or have you ever had since childhood any of the following diseases: Neuralgia, headache (severe or frequent), piles, discharge from ear, or any other disease, ailment, or injury? Answer: No.” (41) “Are you regular in your monthly period?. Answer: Yes.” (42) “Have you any vaginal discharge or uterine hemorrhage, or disease of the uterus or its appendages; or is any such disease suspected by you? Answer: No.” (44) “Have you felt any enlargement or tenderness in the abdomen? Answer: No.” (45) “Have you ever had a surgical operation performed or received treatment in a hospital, sanitarium, retreat, or other public or private institution for the treatment of physical or mental disease? Answer: No.” (35) “Has labor always been natural? Answer: Yes.”
    The trial was before the court without a jury. The court made and filed findings of fact as follows:
    “(1) The court finds from the evidence in this case that defendant order, on the 17th day of December, 1910, issued and delivered to Mrs. Florence Kendrick its benefit certificate No. 172815, in which it agreed to pay to plaintiff, her husband, the sum of $1,000 in the event of her death while a member of the order, provided her death should occur before she reached the age of 50 years; that plaintiff’s wife died on the 26th day of October, 1912, she being then of the age of 37 years; that the immediate cause of her death was a secondary hemorrhage, resulting from an operation performed on her for an ovarian trouble, the operation having been performed by Drs. Bell and Smith; that the trouble for which she was operated on developed after the certificate was issued to her, and only a few months prior to her death; that proper proofs of her death were furnished to defendant in due time, and same were accepted by defendant as being sufficient; that plaintiff’s wife paid all dues and assessments that were levied against her by defendant order up to the time of her death, and at the time of her death she was a member in good standing.
    “(2) The court further finds that in the application for membership signed by plaintiff’s wife it is, among other things, provided: T hereby warrant that I have read and do fully understand all the foregoing statements, questions, and answers thereto, as contained on pages 1, 2, and 3 of this application, whether in my own handwriting or that of another person, and all of the said statements, questions, and answers thereto are hereby made part of my application and of my contract for. benefit membership in the order; and I do hereby expressly warrant that all the statements and answers contained in this application, on pages 1, 2, and 3 thereof, are true and absolutely correct in every particular; and I do hereby agree and consent that the benefit certificate in said order hereby applied for shall be issued to me upon the strength of the warranties herein contained, and in consideration of this application, which is made a part of my contract with said order; and I further agree that any breach of any of the warranties herein contained shall render my benefit certificate null and void, and all payments made by me shall be forfeited to the order in case of such voidance.’ And in the certificate it was, among other things, provided: ‘This certificate is issued upon the express understanding and agreement that all the statements of any kind or description contained in her said application for membership and in her medical examination are guaranteed and warranted by said member to be true and correct in every particular.’
    “(3) The court further finds that in the application for membership plaintiff’s wife was, among others, asked these questions: ‘Are you in good health at the present time?’ to which she answered, ‘Yes.’ (18) ‘Have you ever changed or been ordered to change your residence on account of health? (If so, give particulars.)’ To which she answered, ‘No.’ (19) ‘Have you consulted or been attended by any physician during the past 5 years? (If so, give the date of the beginning, and give the duration of every illness.)’ To which she answered, ‘No.’ (20) ‘What was the cause of each consultation or attendance?’ To which she made no answer. (21) ‘Have you fully recovered from each illness?’ To which she made no answer. (22) ‘Give full names and residence of each physician thus consulted within the past five years.’ To which she made no answer. In the twenty-sixth question contained in the application, plaintiff’s wife was asked, among other things, to state the number, age, and condition of health of her children, and in answer she stated that she was the mother of four children, Marvin, of the age of 16 years, Grace, of the age of 14 years, Oirey, of the age .of 10 years, and Forrest, of the age of 3 years, all of whom were living, and that their health was good. The court finds that the health of plaintiff’s wife was good at the time she made the application; that at the birth of her last child, Forrest, which occurred on the 6th day of November, 1907, Dr. T. J. Bell, a "practicing physician, attended her. The birth was a natural one, and the doctor only saw her the one time. The evidence does not show whether he was called at the time by Mrs. Kendrick or her husband. The court finds that childbirth is not an illness; that it is evident from the questions preceding and following the nineteenth question that the inquiry was respecting her consultation of and treatment by a physician for some illness or ailment, and that the answer of plaintiff’s wife to the nineteenth question was true. And it also finds that the answer, if not true, was not an intentional or willful suppression of an inquiry material to the risk assumed, and that the fact that plaintiff’s wife did not state that she had been attended by a physician at the birth of her last child was immaterial and irrelevant to the risk assumed by defendant order.
    “(4) The court further finds that 'to the forty-fifth question in the application, which was: ‘Have you ever had a surgical operation performed, or received treatment in a hospital, sanitarium, retreat, or any public or private institution for the treatment of physical or mental diseases?’ Mrs. Kendrick answered, ‘No.’ He also finds that at the birth of her third child, Oircy, her womb was curetted by Dr. Bell, she at the time having childbed fever, that the curettment took place at her home, and not in a hospital, sanitarium, retreat, nor a public nor private institution for the treatment of physical or mental diseases; and the court, therefore, finds that her answer to the question was true; and the court further finds that the result obtained from the curettment was a good one, that she soon recovered entirely from the trouble for which the curettment was dene; and the court, therefore, further finds that, if not literally true, her answer was made in good" faith, and not for the purpose of concealing any fact bearing on the risk from defendant order, and that the fact that she did not state that the doctor had curetted her womb at the time stated was not the suppression of any fact which would increase the risk, and that therefore the misstatement, if in fact her answer was a misstatement, was not material to the risk assumed by the defendant order.
    “(5) The court further finds that, among others, the following question was propounded to her in the application: (42) ‘Have you any vaginal discharge or uterine hemorrhage, or disease of the uterus or its appendages, oris any such disease suspected by you? (If so, state character, and give particulars.)’ To which she answered, ‘No.’ The court finds that plaintiff’s wife at the time she made the application had a slight laceration of the perineum, that the laceration did not impair her health in any way, that it in no way brought about or contributed to the ovarian trouble for which she was operated upon at the time of her death, that the laceration was not a disease of the uterus or of its appendages, and that therefore plaintiff’s wife’s answer to the forty-second question was true; and the court further finds that, if the answer was not true in fact, there is no evidence tending to show that she had any knowledge of such laceration, which knowledge could have only been acquired through information of her physician, and that‘her answer was made in good faith, and not with the intention of concealing her true condition from defendant order, that her failure to state that she had the laceration was immaterial to the risk assumed by defendant order, in that it in no way increased the risk or hazard incurred by defendant in issuing the policy to her.
    “(6) That Mrs. Kendrick did not have an attack of malaria during the 5 years next before the filing of the application for insurance herein.
    “(7) That the applicant Mrs. Kendrick was not asked in the application for insurance, and did not state in said application that she had not suffered with malaria.
    “(8) That Mrs. Kendrick had occasional headache; but that such headache was not frequent or severe.
    “(9) That Mrs. Kendrick never suffered with piles. That she was asked in the application if she had ever had piles, and she answered, ‘No,’ to such question.”
    The court’s conclusions as to the law, on the facts found by him, were as follows: “The court is of the opinion that plaintiff ought to recover in the case, for the reason that Mrs. Kendrick’s answers to all the questions propounded to her in the application were in fact true, but, if not true in the par-tieulars herein specifically pointed out, the same were immaterial misrepresentations, and, furthermore, there was no evidence introduced by defendant at the trial that had it been advised of the existence of the facts it claims had been suppressed by plaintiff’s wife that it would not have issued the certificate to her; this the court believes would •have been necessary to defeat a recovery on the policy had the evidence shown clearly that the answers were untrue, and that they were so made intentionally, because they certainly would not be that character of misrepresentations that would authorize the court, in the absence of evidence so showing, to declare them as a question of law material to the risk assumed by defendant in issuing the certificate.”
    On the findings made judgment was rendered in appellee’s favor for $1,000, interest and costs.
    Odell & Turner and Homer L. Baughman, all of Et. Worth, for appellant. Marsh & Mc-Ilwaine, of Tyler, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   WILLSON, O. J.

(after stating the facts as above).

As noted in the court’s findings, deceased answered the question numbered 19 in the negative. That question was: “Have you consulted or been attended by any physician during the past 5 years?” It conclusively appeared that at a time, to wit, November 6, 1907, less than 5 years before the date of the application, to wit, November 19, 1910, deceased was attended by a physician, on the occasion of the birth of her youngest child. It is insisted the court, therefore, erred in finding that the answer of the deceased to said question was true. The two questions immediately preceding that one were as follows: (17) “Are you in good health at the present time?” (18) “Have you ever changed or been ordered to change your residence_on account of health?” The two questions immediately following it were as follows: (20) “What was the cause for each such consultation or attendance?” (21) “Have you fully recovered from each illness?” The trial court was of the opinion that, when read in connection with those immediately preceding and those immediately following it, question 19 should be construed as having reference to deceased’s consultation with or treatment by a physician for “some illness or ailment.” We agree that the question should have been so construed, and therefore that it appeared the answer to it was true, unless childbirth should be classed as an illness or ailment. That it should not be, when natural, as the testimony showed it to have been in the instance in question, we think is clear. Rasicot v. Royal Neighbors of America, 18 Idaho, 100, 108 Pac. 1053, 29 L. R. A. (N. S.) 433, 138 Am. St. Rep. 180. In the case cited the Supreme Court of Idaho said: “Appellant attempted to show that the answer to question 18 W-as false, for the reason that the insured had consulted a physician within the period of 7 years immediately preceding her application. On this point there was a sharp conflict in the evidence, except with reference to one visit by a physician who, it is admitted, attended her on April 5, 1899, the date of her last previous confinement. The appellant had notice that the applicant was a married woman, and that she had already borne five children, and that she' had been confined on April 5, 1899, which was only 3 years prior to this application. It might have assumed that either a physician or a midwife attended her on this confinement. The 'attendance, however, of a physician at the time of a normal case of confinement is clearly not a ‘consultation’ or treatment of a ‘personal ailment’ of the female confined. Childbirth is a physiological fact which occurs in, the regular course of nature, and neither signifies nor entails disease or ailment in the usual and ordinary use of those terms.”

Following the birth of one of her children 10 years before she applied for the certificate sued upon, deceased suffered from “childbed fever.” The treatment she was then subjected to by physicians included what they called “curetting her womb.” The curettment was accomplished by the use of surgical instruments. As a result of the treatment it seems she promptly and entirely recovered from the fever. Appellant insists the curettment deceased’s womb was subjected to was a “surgical operation” within the meaning of the question numbered 45, as follows: “Have you ever had a surgical operation performed or received treatment in a hospital, sanitarium, retreat, or any public or private institution for the treatment of physical or mental disease?” and therefore that the court erred in finding that. deceased answered truly when she replied to said question in the negative. The finding of the court was based on the fact that the curettment of deceased’s womb took place at her home, and not in a hospital, sanitarium, retreat, or other public or private institution for the treatment of disease, as contemplated by the question. If appellant did not intend by the question to limit the inquiry to operations performed in the institutions named, we think deceased was warranted in believing it intended to, and that, construing the question as she had a right to construe it, her answer was true. Construing it that way, had she answered the question in the affirmative, her answer would have been false, for the curettment was not performed in one of the institutions named. If appellant intended to have deceased to state whether she had ever had a surgical operation performed on her person, either in or outside any of the institutions named, it should have seen to it that the questions it propounded to her clearly advised her of its intention, and were not capable 'of such easy and reasonable misconstruction as tbe question propounded to ber was. It will be noted that tbe meaning of tbe question depends entirely on tbe punctuation thereof. With the addition of a comma after the word “performed,” the question means what appellant insists it was intended to mean. Without the comma, as it appears in the record, it means what deceased construed it to mean. In construing the question, we do not think the comma should be supplied in order to convict the deceased of having made á false answer. On the contrary, we think it should be construed as it is written in the record, and as, so written, deceased had a right to construe it. Bo construing it, the answer she made to it was true.

At the time physicians curetted deceased’s womb as above stated, they found that on some former occasion when deceased had given birth to a child, she had suffered a laceration of the perineum. This being true, appellant contends that deceased’s answer, in the negative, to the question numbered 42, as follows: “Have you any vaginal discharge or uterine hemorrhage, or disease of the uterus or its appendages, or is any such disease suspected by you?” was false, and that the trial court, therefore, erred when he found that her answer was true. It is sufficient to say, in reply to the contention, that, as found by the court, and as shown by the testimony, the perineum is not an appendage to the uterus.

In connection with each of the findings of the court complained of as above stated, the court further found that, if the answers made by deceased were respectively false, that would not furnish a reason for denying appellee a recovery on the certificate, because it did not appear that same were material to the risk appellant assumed. If we did not agree with the trial court that the answers were true, we would not feel warranted, on the record before us, in saying he erred in his finding that they were immaterial, and therefore did not operate to avoid the certificate. Article 4834, R. S. 1911.

We think tbe testimony was sufficient to support findings made by the trial court as follows: (1) That deceased was in good health at the time she applied for tbe certificate. (2) That she had - not had an attack of malaria within the 5 years immediately preceding the time she applied for the certificate. (3) That she had not suffered from piles. (4) That, while she had attacks of headache, the attacks were neither frequent nor severe. Therefore we overrule the assignments attacking said findings of the court.

There are other assignments; but they also are believed to be without merit, and are overruled.

There is no error in the judgment, and it is affirmed.