author: BOYCE, J.

text:
    QUANAH, A. & P. RY. CO. v. BONE.
    (No. 1248.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 28, 1917.)
    1. Carriers <§=105(2) -Carriage oe Goods— Damages.
    Where defendant carrier was notified that delay in transporting goods would cause plaintiff's employés to be idle, it is liable for special damages thereafter caused by delay and consequent idleness of employés.
    2. Trial <®=261 — Requested Instructions.
    Refusing a requested instruction constituting a paragraph of a general charge, some portions of which were incorrect, is not erroneous.

      3. Carriers <@=>184 — Carriage oe Goods — Variance.
    There is no variance between'proof that defendant carrier delayed shipments at junction point with another carrier at a certain date, and allegations that the goods were delivered to defendant a month previous to such date.
    4. Carriers <@=>187 — Carriage oe Goods — Title.
    Evidence regarding goods consigned to plaintiff by third party held to make a jury question whether goods belonged to plaintiff or third party during transit.
    5. Carriers <@=76 — Carriage oe Goods — Delay — Eight to Sue.
    The owner of material may sue a carrier for delay during transit, although the shipment was made in another’s name.
    6. Appeal and Error <@=>1053(3) — Harmless Error — Admission oe Evidence — Cure by Instruction.
    In an action for delay against a carrier, admitting evidence that goods were paid for by plaintiff instead of consignor, etc., held not erroneous where jury was instructed that plaintiff must establish his title to recover.
    7. Carriers <@=3176 — Carriage oe Goods — Connecting Lines:
    In action against a carrier for refusing to forward goods via a connecting line, an erroneous statement of route in the billing does not excuse defendant, who knew such statement was erroneous and refused to forward for other reasons.
    8. Evidence <@=>13S — Admissibility—System.
    While ordinarily evidence regarding similar wrongs inflicted on others is inadmissible, yet evidence showing a universal "rule or system is admissible.
    9. Carriers <@=>185(2) — Carriage op Goods— Evidence.
    In action against a carrier for refusing to deliver goods to a connecting line, evidence that it constantly refused to make such deliveries is admissible, where evidence conflicted regarding defendant’s refusal to deliver and its reasons therefor.
    10. Carriers <@=>185(1) — Carriage oe Goods —Connecting Lines.
    Under Rev. St. 1911, arts. 6687-6691, requiring carriers to forward goods via connecting lines provided empty cars be exchanged for the loaded forwarded cars, defendant has burden of showing that its failure to forward was excused by not receiving empty cars.
    11. Evidence <@=>96(1) — Statutes <@=>279 — Exceptions — Burden of Proof.
    Ordinarily, a defendant seeking exceptions from liability under a statutory proviso has the burden of pleading and proving such exception.
    12. Carriers <@=>176— Carriage oe Goods — Connecting Lines.
    Under Rev. St. 1911, arts. 6687-6691, requiring connecting carriers to forward goods within a reasonable time and authorizing the railroad commission to fix such time, a carrier transferring goods within the time fixed by the commission is not liable, although it might reasonably have done so sooner.
    .Appeal from District Court, Motley County; J. H. Milam, Judge.
    'Suit by Fred Bone against the Quanah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    G. E. Hamilton, of Matador, and J. P. Marrs and D. E. Decker, both of Quanah, for appellant. Bouldin & Surles, of Matador, and Martin, Kinder & Russell, of Plain-view, for appellee.
   BOYCE, J.

Suit was brought by appellee, Fred Bone, against appellant, Quanah, Acme <& Pacific Railway Company, for damages and penalties, under the provisions of articles 6670 and 6671, Revised Statutes, for the alleged failure and refusal on the part of the defendant to deliver td the Motley County Railway Company/a connecting carrier, operating from a junction with defendant’s road, to Matador, Tex., a number of shipments of tools and lumber shipped to plaintiff at Matador, Tex. Plaintiff recovered judgment for $750 damages and for a penalty of $125 each on ten different shipments.

Bone was a contractor, and had the contract for erecting a building in the town of Matador, and the various shipments consisted of tools and material for use in the construction of said building. The jury found, and its findings are not complained of, that the defendant railway company failed and refused to deliver to the Motley County Railway Company ten of such shipments. These shipments were taken by thé defendant railway company to Roaring Springs, and some of them a.t least held in excess of the time provided by the regulations of the Railway Commission for delivery to its connecting carrier; the plaintiff being forced to haul some of the material from Roaring Springs by wagon. The actual damages sustained consisted in having a number of men on pay idle and inability to have the work proceed regularly, as it should, for lack of material and tools.

By its first, sixth, and ninth assignments, appellant complains that the special damages, to wit, damages on account of having idle men on pay and that resulting from having to carry one wall of the building up at a time instead of building all walls simultaneously, due to lack of material, are not recoverable, because it is not alleged or proven that the appellant had notice of such damages. There is pleading and proof to the effect that the plaintiff, while the shipments were being held a,t Roaring Springs, notified the agent of the defendant company of the fact that said material was needed for use in said building, and that he had men on pay, who would be idle on account of lack of material. Under such circumstances, the defendant would be responsible for the special damages of which it had notice subsequently sustained. Bourland v. C., O. & G. Ry. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647; Q., A. & P. Ry. Co. v. R. D. Jones Lbr. Co., 178 S. W. 862. It is not necessary that notice, in order to impose liability for the special damages, should extend to the details' of the ’situation. Western Union Tel. Co. v. Edsall, 74 Tex. 329, 12 S. W. 41, 15 Am. St. Rep. 835; K. C., M. & O. Ry. Co. v. Bell, 197 S. W. 322, and authorities- cited. The pleading, however, alleges that specific notice was given that plaintiff’s damage would consist in having to pay his men that were idle on account of lack of material, and it may he that under such allegations he would be confined to a recovery of such damages. The ninth assignment, which raises this question, however, cannot be sustained because it complains of the refusal to give a requested instruction which is only a paragraph of a general charge requested by the defendant submitting the entire case, and some of the instructions contained in this general charge do not correctly state the law; besides, it would have been manifestly improper for the court to have given this entire charge in connection with his own submission of the ease on special issues. The court below was not required to select portions of the charge and give it to the jury. For these reasons, we overrule the said first, sixth, and ninth assignments.

The second assignment complains of the admission of certain testimony in reference to three cars containing lime, lumber, and cement plaster, respectively; it being asserted that there is a variance between the allegations and proof as to these three shipments, since it was alleged that the wrong in holding these cars occurred about August 5th to 10th, while the evidence was as to the acts occurring more than one month later. The petition does not attempt to state the date of the withholding of the cars by the defendant at Roaring Springs. It charges that on or about the 5th and 10th days of August, 1915, the plaintiff purchased and delivered such material to the defendant at Quanah, Tex., for transportation. There does not seem to have been any confusion as to the identity of the shipments, and we overrule this assignment.

By the third assignment complaint is made of the introduction of evidence as to a car of lumber and a car of cement plaster, on the ground that the evidence shows that such material belonged to the R. D. Jones Lumber Company and plaintiff was not therefore entitled to recover damages on account of delay in transportation thereof. These two cars were shipped in the name of the R. D. Jones Lumber Company. Plaintiff’S' superintendent -testified that Bone had a contract with the R. D. Jones Lumber Company by which said company was to furnish such material for the building delivered and to be. paid for at. Matador. Plaintiff testified that the R. D. Jones Lumber Company was his agent in buying the cement, plaster, and lumber, and the railway company had notice that such material belonged to him; that he bought the lumber from Jones. “It was a special car of stuff he had ordered for me. He would not have ordered it if it ha.d not been for me.” He further testified that he paid the draft drawn against the R. D. Jones Lumber Company covering the purchase price of the lumber; also, that he supposed that if the material had been lost in transit the loss would be on the R. D. Jones Lumber Company. We do not think it could be said as a matter of la-w that the evidence shows that the title to this material was not in the plaintiff. It would be, in our opinion, a question of fact as to the intention of the parties. J. & G. Lippman v. Jeffords-Schoenmann Produce Co., 184 S. W. 534; Robinson & Martin v. H. & T. C. Ry. Co., 105 Tex. 185, 146 S. W. 537. If the plaintiff was the owner of the material, he could sue for the damages, notwithstanding the fact that the shipment was in the name of the R. D. Jones Lumber Company. Authorities last above cited; G., C. & S. F. Ry. Co. v. Drahn, 163 S. W. 330; F. W. & D. C. Ry. Co. v. Caruthers, 157 S. W. 241, and authorities there cited. The court instructed the jury that the plaintiff could not recover damages or penalties on any shipment unless the jury should find “that the shipment was the property of the plaintiff and the title to the same was in plaintiff.” Under these circumstances, we do not think the admission of the testimony was erroneous.

The fourth assignment complains of the introduction of evidence with reference to a marble column, because it appears from the bill of lading that the word “Matador,” in the blank for destination, had a line run through it, and immediately under such word, following a blank for route, was written “Russelville.” This assignment is without merit. The record shows that the defendant knew that there was a mistake in the billing and treated the shipment as being destined to Matador, and it was not declining to forward the shipment to Matador on this account, but held it at Roaring Springs for other reasons, allowing the plaintiff to come and get it at that place on payment of the freight charges.

The fifth assignment complains of the admission of testimony of defendant’s agent at Roaring Springs that for a period of time in August, and possibly September,. 1915, the defendant refused to deliver any freight to the Motley County Railway Company, consigned to Blatador. It is true that, ordinarily, in a trial based on allegations of one wrong, evidence as to similar wrongs, inflicted on others, is not admissible. The reasons for this rule, however, do not apply where the evidence, instead of showing occasional and specific instances of a similar character, shows a universal rule or system with reference to the matter. Wigmore on Evidence, § 92; Ft. Worth Belt Ry. Co. v. Cabell, 161 S. W. 1087. If such system has any materiality in determining any issue in the case, we think the testimony would be admissible. In this case there was -a con-fliet in the testimony offered by the plaintiff and defendant as to whether the defendant failed and refused to deliver some of the shipments within the time required by law and as to" the purpose of its holding such shipments at Roaring Springs, and we think this testimony was admissible on this issue.

The defendant excepted to plaintiff’s ¿e-tition for recovery of penalties for failure to deliver loaded cars to the Motley County Railway Company, because the petition did not allege that the Motley County Railway Company had ears of any kind to exchange for the loaded cars containing plaintiff’s shipment, so that it could comply with the regulation of the Railway Commission for exchange of cars under such circumstances, and the seventh assignment complains of the overruling of this exception. The defendant, by special answer, pleaded that the Motley County Railway Company refused to deliver to the defendant any ears in exchange for the loaded cars destined to Matador, and that any delay in delivery of plaintiff’s cars was caused by this fact. Evidence was offered to the effect that the car of cement plaster and the car of lumber were not delivered because the Motley County Railway Company would not exchange empty cars for these loaded ears; it- being shown that the defendant company issued written notices addressed to the consignee and to the Motley County Railway Company that said carloads of freight consigned to Matador were held by the defendant and would be delivered to the Motley County Railway Company in exchange for an empty ear. In connection with this proof, the following order of the Railroad Commission of Texas, made November 21, 1907, was introduced in evidence:

“Pursuant to notice and hearing had in cause No. 785, before this commission, it is ordered by the Railroad Commission of Texas that for the purpose of putting into effect the provisions of chapter 184, General Laws of the Thirtieth Legislature, any railroad company operating between points in the state of Texas, by giving notice to its connecting lines at any junction points, as provided below, shall be entitled to demand of said connecting line the delivery to it of any number of empty cars of like character for each loaded car delivered by said railway.”

By its fourteenth assignment appellant assigns error on the refusal of the lower court to give a requested instruction to the effect that plaintiff could not recover damages or penalties in such instance, where defendant refused to deliver to the Motley County Railway Company loaded cars, where such refusal was based upon its refusal to exchange with defendant empty cars for such loaded ones.

In support of the proposition that the defendant was not liable for damages for refusal to allow its cars to leave its own line of road, appellant cites the following cases:■ G., H. & S. A. Ry. Co. v. Jones, 104 Tex. 92, 134 S. W. 328; G., C. & S. E. Ry. Co. v. State, 56 Tex. Civ. App. 353, 120 S. W. 1028; F. W. & D. C. Ry. Co. v. Williams, 77 Tex. 121, 13 S. W. 637. These eases do so hold. However, the shipments in such cases were made prior to the time of the taking effect of chapter 184 of the Act of 1907, which now constitutes articles 6687-6691, R. S. The case of G., C. & S. E. Ry. Co. v. State, supra, is the leading case, and the ruling is expressly based on the fact that the order of the Railway Commission which attempted to require the carrier to deliver its loaded car to its connecting line did not provide adequate protection to the carrier for compensation and from loss or undue detention of cars, etc. It was expressly recognized that legislation which did provide for such protection would probably be valid; the following being quoted with approval from a decision of the Supreme Court of the United States in the case of L. & N. R. R. Co. v. Central Stockyards Co., 212 U. S. 132, 29 Sup. Ct. 246, 53 L. Ed. 441:

“In view of the well-known and necessary practice of connecting roads, we are far from saying that a valid law could not be passed to prevent the cost and loss of time entailed by needless transshipment or breaking bulk, in case of an unreasonable refusal by a carrier to interchange cars with another for through traffic. We do not pass upon the question. It is enough to observe that such a law perhaps ought to be so limited as to respect the' paramount needs of the carrier concerned, and at least could be sustained only with full and adequate regulations for its protection for loss or undue detention of cars, and for securing due compensation for their use.”

The act of 1907, above referred to, meets this situation, so that the liability of the railway company for its act in refusing to deliver the cars in question would be determined by the provisions of this act in connection with the regulations of the Railway Oommission, adopted in pursuance to its provisions. This act is very lengthy, and it is not necessary to here quote it. In brief, it provides at great length for the protection o’f the carrierá in respect to cars delivered to a connecting line, and seems to meet all of the conditions referred to in the opinion of the courts in the cases cited. Article 6687 provides in part:

“It is hereby declared to be the duty of every railroad company operating a line of railway in this state * * * as to all services to be performed within the limits of this state, as to such freight and cars, to transport same within a reasonable time, ⅞ * * and, if destined to a point beyond the line of such railroad, then to transport and deliver within a reasonable time such freight in_ such loaded car or cars to the connecting carrier forming any part of the route over which such shipment is made, * ⅞ * and it shall likewise be the duty of each connecting line of railroad ⅜ ⅜ ⅜ to receive and transport within a reasonable time such loaded car or cars offered or tendered to it, etc.”

Other provisions of the statute make the interchange of cars mandatory, provide compensation therefor, and article 6689 provides that:

The Railroad Commission is empowered to make regulations as to “the time within which and the manner by which railroad companies shall give notice or make demand upon each other for cars to be furnished by one railroad company in exchange for loaded cars, or to have its cars returned,” etc.

The concluding clause of article 6690 is as follows:

“Provided, that no railroad company shall be compelled to furnish its own cars to any other railroad company which is involved, except upon reasonable security furnished to it to protect it from loss or damage to or destruction of such ears and compensation for the use thereof, and in no event shall any railroad company be required to furnish any cars to any connecting line, except to exchange for other cars reasonably suitable for the transportation of freight.”

The order adopted by the Railway Commission, which we have quoted above, was, as it states, passed in pursuance to the terms of this act; The reference in the order to “notice as provided below” is evidently to further provisions as to the time, place, and manner of giving such notice in pursuance to the terms of the statute which we have quoted. No evidence as to this provision was offered by either party. The order of the Railroad Commission may with propriety, and probably did, provide for some general notice as to requirements of this character — and perhaps before the arrival of the specific car at the junction point — for if railway companies were permitted to accept the shipments and give no notice of its demands to the shipper or its connecting line until the arrival of the car at the junction, and then in individual and sporadic cases, hold the car up and serve notice on the shipper and connecting line of its demand for an empty car in exchange, the evident purpose of the legislation would he thwarted. Without the additional provision of the regulation as to notice referred to in the order introduced in evidence, it would not be possible to determine whether the notice given was in accordance with the rules and regulations of the commission. So that the record does not disclose yvhetfie1' .or not the railroad company was within its rights in withholding the shipment under the circumstances.

A decision as to its liability for refusal to deliver the shipment would therefore depend on a decision as to the burden of proof on the issue as to whether the refusal to deliver the car was justified under the provision for exchange of cars. If this defense is an affirmative defense, then the burden of establishing it is upon the defendant. Boswell v. Pannell, 107 Tex. 433, 180 S. W. 593. The defendant below pleaded it as an affirmative defense, and it was evidently so treated, and we believe correctly, as it comes within the terms of a proviso, as we have shown above, to an enactment, having the general purpose and effect of requiring carriers to transport freight to destination without the delays and loss incident to transfer of carload shipments at junction points of connecting carriers. It is the general rule that a defendant seeking the benefit of exception from liability, on account of a proviso or exception to general liability, has the burden as to pleading and proof of such issue. Gerlach Mercantile Co. v. Hughes-Bozarth-Anderson Co., 189 S. W. 790; Continental Casualty Ins. Co. v. Jennings, 45,Tex. Civ. App. 14, 99 S. W. 425; Frost v. Grimmer, 142 S. W. 615; Starr v. Etna Life Ins. Co., 41 Wash. 199, 83 Pac. 113, 4 L. R. A. (N. S.) 636, and note. If we are correct in this conclusion, the plaintiff did not have to anticipate the defense and negative it in his pleading, so that the exception referred to was properly overruled, and, the defendant having failed to discharge the burden on the issue tendered by its answer presenting the issue, the instruction requested was also properly refused.

The defendant pleaded that, on ac- . count of lack of facilities for transferring freight at the junction of its road with the road of the Motley County Railway Company and the condition of the grade and tracks at such place, it was necessary to take all cars and freight intended to be delivered to the Motley County Railway Company, past such junction to Roaring Springs and delivered them from its trains, returning from Roaring Springs, eastward, and that plaintiff’s shipments were taken to Roaring Springs on this account alone and were returned and delivered to the Motley County Railroad Company within the time fixed by the rules of the Railroad Commission for delivery of such freight. The rule of the Railroad Commission with reference to the receipt and transportation of freight in carload lots provides:

“That twenty-four hours’ additional time shall be allowed at each junction point or divisional terminal where it is necessary to rehandle the car or cars; also forty-eight hours’ additional time when it is necessary to transfer contents from one car to another.”

There was evidence which tended to show that some of the shipments, particularly two cars of face brick, which were evidently part of the eight carloads, on which recovery of penalty was allowed, were carried to Roaring Springs under these circumstances, but were delivered to the Motley County Railway Company within less than 24 hours after such cars first reached the junction. The defendant requested, and the court refused to. give, the following instruction:

“If you believe from the evidence that the defendant delivered to the Motley County Railway Company any of the loaded cars described in the plaintiff’s petition within 24 hours from the time that said cars first arrived at Matador Junction, you will find for the defendant as to all such cars, both on his claim for damages for delay and also as to’ his claim for penalties thereon, provided that you further find that it was necessary to rehandle said ears by the defendant before they could be delivered to the Motley County Railway Company, and you are further instructed that the fact that defendant may have carried said cars to Roaring Springs during such 24 hours’ period would not be a violation of the law of its duty to the plaintiff.”

The court, ,in connection with the submission of issues requiring the jury to find whether the defendant failed or refused to deliver to the Motley County Railway Company any carload shipments, instructed the jury as follows:

“You are instructed that, where a railway company received freight originating in this state for transportation destined to a point beyond its own line of road, it must deliver it to its connecting carrier promptly at the point of intersection of the two roads; that it has no right, after receiving such freight and contracting to deliver it to the place of destination, to refuse to deliver, nor has it the right to withhold the same beyond a reasonable time, and the Railroad Commission has fixed 24 hours as a reasonable time in carload shipments and 48 hours as a reasonable, time in less than carload shipments, if such time be necessary in handling said shipments.”

This charge was a correct statement of the law, except for the limitation contained in the last clause quoted. The suit is for penalty and damages for unjust discrimination under the statute, which provides that a carrier shall he guilty of unjust discrimination if it “shall fail or refuse under such regulations as may be prescribed by the commission, to transport and deliver without delay, or discrimination, any passengers, tonnage or cars, loaded or empty, destined to any point on or over the line of any connecting line of road.” The regulation of the Railroad Commission having given the carrier 24 hours to deliver the carload shipment, we do not think the statute would apply where the freight was actually delivered without such time, though it might have been delivered earlier. This court held, in the case of Q., A. & P. Ry. Co. v. Moore, 189 S. W. 322, that since it was the duty of the railway company to have proper facilities at the junction point the failure to deliver within the time prescribed by law could not be excused by reason of the fact that the lack of facilities required the freight to be taken to Roaring Springs before it could be transferred. In that case the delivery was not made within the legal time. We do not think that the fact that the shipments were taken to Roaring Springs would make any difference if they were actually delivered within the time limit fixed by law. The charge given was therefore, in our opinion, not a correct statement of the law, and, as the jury had no correct instruction by which to ascertain the liability of the defendant on this issue, the requested charge should have been given. The last clause of such requested charge is not, abstractly considered, correct; but it is correct in its application to this particular question of liability. We therefore sustain appellant’s twelfth assignment.

If the facts in evidence, upon another trial, are sufficient to require it, the court should also instruct the jury that the defendant would not be liable for the penalty on shipments in less than carload lots if they were delivered to the connecting carrier at junction point, within 48 hours after first arrival at the junction point, in accordance with the regulation of the Railroad Commission as to the time of delivery of less than carload shipments.

We have examined the other assignments, but find no error presented, and overrule them.

Reversed and remanded.
      ©soFor otter oases see same topic and KEY-NIU1BER in all Key-Numberea Digests and Indexes

      <@=>For other cases see same topic and K12Y-WUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    ALFALFA LUMBER CO. v. MUDGETT et al.
    (No. 1243.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1917.
    On Motion for Rehearing, Dec. 19, 1917.)
    1. Tbespass to Try Title &wkey;>47(3) — Reformation of Instruments.
    Where a defendant’s title in trespass to try title is dependent upon the correction of mistake, an instrument, upon proper pleading and if the proper parties are before the court, can be reformed.
    2. Trespass to Try Title <&wkey;47(l) — Reformation of Instruments — Pleading.
    In trespass to try title, the court can reform an instrument relied upon to support title under a general prayer for equitable relief, where the proper facts are pleaded, although there is no prayer for reformation.
    3. Reformation of Instruments &wkey;>6 — Sheriffs’ Deeds — Mortgages.
    Where an improper description is put in a mortgage and foreclosure is had and the mistake is carried into the sheriff’s deed, the sheriff's deed cannot be reformed, but, to get title, the mortgage itself should be reformed and another foreclosure had.
    On Motion for Rehearing.
    4. Frauds, Statute of <&wkey;129(9) — Yerbal Mortgage — Foreclosure — Necessity of Possession and Improvements.
    Where the wrong lot was inserted in a mortgage and the mistake carried through to a sheriff’s deed, the transaction was no more than a verbal transfer, and valuable improvements were necessary in addition to possession to acquire an equitable title to the lot intended to be mortgaged.
    5. Reformation of Instruments &wkey;>33 — Parties — Mortgages.
    In trespass to try title wherein defendant’s title depends on a mortgage with an incorrect description carried through to the sheriff’s deed, the mortgagor, or his legal representative, is a necessary party to a reformation of such mortgage.
    6. Appeal and Error <&wkey;1177(3) — Reversal to Allow Additional Parties — Issues.
    In trespass to try title, where it incidentally appeared that if proper parties were in the case the defendant might he entitled to affirmative relief by reforming a mortgage through which he was claiming, the judgment will not be reversed for the purpose of allowing defendant for the first time to make application to make additional parties.
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Trespass to try title by W. P. Mudgett and otters against the Alfalfa Lumber Company. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Yeale & Lumpkin, of Amarillo, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Madden, Trulove, Ryburn & Pip-kin, of Amarillo, for appellees.
   BOYCE, J.

Appellee Mudgett and otters brought suit in trespass to try title, against appellant, Alfalfa Lumber Company, to recover lot No. 6, block 201, Glidden & San-born addition to the city of Amarillo. The appellant pleaded not guilty and by special answer, which we will hereafter notice further. A trial before the court resulted in a judgment for the plaintiffs and this appeal by the defendant.

J. F. Dunaway is the common source of the title relied on by both parties, and the controversy is as to the effect a mistake in the description of the property in appellant’s •chain of title should have on the respective rights of the parties. Appellant claims title under Dunaway as follows: Dunaway, on May 8, 1912, executed and delivered to appellant a deed of trust to secure it in the payment of a certain note, whereby he conveyed, by the terms of said deed of trust as written, lot No. 5 in said block No. 201. Dunaway at this time only owned one lot, to wit, lot No. 6, in said block, which was the southeast corner lot of the block, and the deed of trust was intended by the parties to cover this lot. JBy reason of an error of numbering in a copy of the map, to which the parties referred when preparing the deed of trust, and which showed the southeast corner lot of said block to be No. 5, which was really the southwest corner of the block, a mistake was made in the deed of trust and said lot No. 5 conveyed thereby instead of lot No. 6. Judgment of foreclosure of this deed of trust was had, the property advertised and sold under order of sale and conveyed to appellant by sheriff’s deed dated June 3, 1913. The same mistake of description was carried through all these proceedings. Apipellant was shown to have been in possession of said property from about March or April, 1915. Appellee’s title is as follows: An abstract of judgment against Dun-away, in favor of Joyce-Prewitt & Co., a corporation, was recorded in the proper records of Potter county, bn February 28, 1913. This judgment was assigned to appellees Mudgett and his associates. This indebtedness was subsequently renewed, time of payment extended and included in a note dated March 29, 1913, payment of which was secured by deed of trust of even date, executed by Dun-away, whereby he conveyed to the trustee named therein said lot No. 6 and other property the deed of trust reciting that the lien of the judgment should continue in effect. A judgment of foreclosure of this deed of trust was rendered in favor of appellees against Dunaway, December 10, 1914. Dunaway •died, and his wife qualified as administra-trix, in March, 1915. On application to the probate court, it was ordered that the ad-ministratrix be allowed to convey the property against which said indebtedness had been foreclosed to appellees in satisfaction of gaid judgment, and, in accordance with such order, the said administratrix conveyed said lot No. 6, together with other property, to the said appellees, by deed dated August 17, 1915.

The appellant, in addition to the plea of not guilty, by special answer alleged the facts with reference to the mistake in description in the various instruments and proceedings as above set out. No specific reference to reformation is made in said answer; appellant asserting that by reason of such facts it thereby acquired the superior legal and equitable title to said lot No. 6. The answer, however, contained a prayer for general, legal, and equitable relief.

The mere showing of a mistake in connection with an instrument offered in support of a title does not authorize the court to give to such instrument the effect it would have but for the mistake. The mistake may only be inquired into and reformed in a direct proceeding appropriate to such relief. Clark v. Gregory, 87 Tex. 189, 27 S. W. 56; Davis v. Kirksey, 14 Tex. Civ. App. 380, 37 S. W. 994. This does not mean that the instrument may not, upon proper pleading and if the proper parties are before the court, be reformed and given effect in the trespass to try title suit. The defendant, whose title is dependent upon the correction of the mistake, can properly, if the proper parties are before the court, seek a reformation of the instrument for the purpose of relying upon it to support his title.

While the defendant in this case does not pray for reformation of the instruments necessary to establish its title, nor state the facts upon which such relief might be given in the form of a cross-action, yet such facts are specially pleaded in defense, and under the prayer for general relief we should, we think, regard such pleading as sufficient to authorize the reformation of such instruments if defendant would be otherwise entitled to such relief, Etna Ins. Co. v. Brannon, 99 Tex. 391, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020.

Ordinarily, all parties executing an instrument and all parties to a judgment are necessary parties to a proceeding to reform them. Neither Dunaway, the maker of the deed of trust and the defendant in the judgment of foreclosure, nor his administratrix or heirs, were parties to this suit of trespass to try title. This lack of parties would perhaps be fatal to any right of reformation of such instruments in this suit. But, if we assume that under the circumstances the representatives of Dunaway were not necessary parties to a reformation of such proceedings, it will be next in order to decide whether the court could, in this procedure, reform the judgment of foreclosure and the sheriff’s deed also, which would be necessary before appellant can establish its title. The weight of authority is that where a mistake of description made in a mortgage has been carried through the foreclosure proceedings, and the sheriff’s deed, the purchaser cannot have the sheriff's deed corrected so as to vest title in the property in him. The remedy in such cases is to secure a reformation of the mortgage and foreclose it anew. The reason for this is that the sheriff advertises for sale specific property for the purpose of giving the public information that such property is to be sold. Persons interested therein may then inform themselves as to such matters, including the title, as might affect its value so as to be prepared to bid at the public sale. If upon the advertisement and sale of entirely different property the mistake in the original mortgage would permit a reformation of the sheriff’s deed, the entire purpose of the advertisement of the property by the sheriff would be defeated. Here lot No. 5 was advertised and sold — a different piece of property entirely from lot No. 6, to which the defendant in execution had no title whatever. It cannot be known who would have bid, nor the amount of the bid, nor that appellant would have been the purchaser if lot No. 6 had been advertised and sold, and neither can it be known what, if any, steps appellees would in such event have taken to protect their interest in said lot No. 6. Bo that it is not practical to extend the reformation on account of the mistake to the sheriff's deed. Fisher v. Villamil, 62 Fla. 472, 56 South. 559, 39 L. R. A. (N. S.) 90, and note, Ann. Cas. 1913D, 1003; Stephenson v. Harris, 131 Ala. 470, 31 South. 445; Rogers v. Abbott, 37 Ind. 138; Conyers v. Mericles, 75 Ind. 443; McCasland v.Etna Life Ins. Co., 108 Ind. 130, 9 N. E. 119; Marks v. Taylor, 23 Utah, 470, 65 Pac. 203; Davenport v. Sovil, 6 Ohio St. 459; Carrigg v. Mechanics’ Bank, 136 Iowa, 261, 111 N. W. 329; note to Stewart v. Wilson, 109 Am. St. Rep. 36-40. There are some authorities to the contrary: Greeley v. De Cottes, 24 Fla. 475, 5 South. 239; Peck v. Osteen, 37 Fla. 427, 20 South. 549; Quivey v. Baker, 37 Cal. 465; Parker v. Starr, 21 Neb. 680, 33 N. W. 424; Waldron v. Letson, 15 N. J. Eq. 126; Marks v. Taylor, 23 Utah, 152, 63 Pac. 897. The Florida cases referred to were overruled by Fisher v. Villamil, supra. The Utah case was subsequently reversed on rehearing, and the California case was criticized and practically overruled by the Supreme Court in the subsequent decision of Hull v. Calkins, 137 Cal. 84, 69 Pac. 838, in which the court, in referring to said case, says:

“It is difficult to perceive on what recognized principle of equity the court was justified in amending the sheriff’s deed.”

The question has not been directly decided by our courts, though in the case of Silliman v. Taylor, 35 Tex. Civ. App. 490, 80 S. W. 651, it was recognized that in a suit brought for such purpose it was proper to have a reformation of the proceedings down to the foreclosure and proceed anew with the foreclosure sale. We hold that the sheriff’s deed cannot be reformed in this proceeding, and, as the defendant showed no title without it, the court below properly entered judgment for the plaintiffs, since they showed good title from Dunaway, the common source.

No conclusions of law or fact were filed by the court below, and, as the judgment can be sustained on this ground, it is not necessary to consider other theories on which appellees claim the judgment may be sustained, and this general conclusion disposes of all appellant’s assignments of error.

Affirmed.

On Motion for Rehearing.

On motion for rehearing, appellant urges upon our attention the case of Gilmore v. O’Neil, 107 Tex. 18, 173 S. W. 206, in support of its proposition that, independent of the reformation of the deed of trust and subsequent proceedings, the appellant held a superior equitable title to the land that entitles it to prevail in this suit. In the case referred to, James Jones sold to Mrs. Dewey a certain tract of land, but the deed, by mistake, failed to include a part of the land intended to be sold. The entire consideration was paid and the defendant O’Neil, a subsequent grantee of Mrs. Dewey, went into possession, placing valuable improvements on the portion of the land intended to be sold but not embraced in the deed to Mrs. Dewey. These facts being shown in a suit in trespass to try title to the said portion of land not included in the deed, in which suit O'Neil was defendant, and the plaintiffs were claiming under Mrs. Jones, were held sufficient to vest an equitable title in O’Neil, which enabled him to prevail; and it was further held that the reformation of the deed was not essential to the establishment of O’Neil’s defense, because under the circumstances he acquired an equitable title to the land, independent of the deed. • This ruling was evidently on the theory that one purchasing land on oral contract, who pays the consideration therefor, goes into possession, and makes valuable improvements, acquires an equitable title thereto, notwithstanding the statute of frauds. So that O’Neil, under the circumstances, could ignore the deed and found his right on the oral contract followed by payment of the purchase price, possession, and improvements. Before proceeding further with the application of this case to the one at bar, it will be well enough to understand the limits within which an oral contract for the sale of land will be held to confer an equitable title therein.

There are many cases on the subject, but the following will be sufficient for the purposes of this opinion: Ann Berta Lodge v. Leverton, 42 Tex. 23; Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052; Id., 19 S. W. 340; Page v. Vaughn, 173 S. W. 543; Terry v. Craft, 87 S. W. 845. These authorities establish: First, that “when a verbal contract, I whether fully or partially executed, is relied upon in our courts, though merely by way of defense against the legal title, the laboring oar is upon the defendant, and he must make out such a case as would entitle him to a decree of title, if he were seeking it.” Second, that possession and payment of the purchase price alone, under an oral contract of purchase, are not sufficient to establish such a title, but the possession must be accompanied by valuable improvements, placed on the land on the faith of the purchase.

As ruled by these authorities, how stands the right of the appellant, independent of the written instruments, that do not describe the land and which cannot avail it without a reformation thereof? Its position would be that of possession with no improvements made under such possession, following an oral mortgage with no foreclosure thereof. We need not digress to ascertain what might be the rights of appellant if its possession was by. reason an ineffective attempt to foreclose a valid mortgage, because the oral mortgage, like an oral sale, falls within the terms of the statute of frauds. Poarch v. Duncan, 41 Tex. Civ. App. 275, 91 S. W. 1110; Castro v. lilies, 13 Tex. 235; Boehl v. Wadgymar, 54 Tex. 589; Johnson v. Portwood, 89 Tex. 235, 34 S. W. 599, 787; R. S. art. 1103. If the oral agreement to create a lien on the real estate could be held to create any equitable title under any circumstances, it would only be on the same theory that an oral sale may, under certain circumstances, vest an equitable ownership in the land, which the law will recognize. Under the authorities cited, appellant could not prevail in the suit, even if he had purchased the lot by verbal sale from Dunaway, paid the entire consideration, and went into possession, because it is not shown that it has placed valuable improvements thereon. If a verbal sale under the circumstances would not vest an equitable title in appellant that would enabie it to defeat the trespass to try title suit, we do noi see how it could be held that a verbal mortgage could have that effect.

We are requested by appellant, in the event we should otherwise hold against it, to reverse and remand the case to the end that a reformation of the deed of trust may be had, followed by its foreclosure, as reformed, on the ground that appellant, having set up all the necessary facts, is entitled to this relief under its general prayer. This matter received our attention on original hearing, though it was not mentioned in the opinion. If all the parties necessary to such relief were in the ease and all the facts necessary to such relief were pleaded, we would consider it our duty to examine further into appellee’s claim that such action could not be had in any event, because they are innocent purchasers without notice, and, if we should determine that the appellee’s claim is not well founded, then to reverse and remand tho case as suggested. We are of the opinion, however, that the heirs or representatives of Dunaway are necessary parties to any proceeding to reform the mistake in the deed of trust and to foreclose the same. City of Brownsville v. Tumlinson, Í79 S. W. 1110; Weems v. Sheriff, 48 Tex. 481; Jones v. Nix, 174 S..W. 685; Cyc. vol. 34, pp. 966, 967; Gates v. Union Naval Store Co., 92 Miss. 227, 45 South. 979. Such action necessarily involves a cancellation of whatever credit resulted on the judgment against Dun-away by the former sale and a foreclosure of the indebtedness against said lot No. 6, and sale under such foreclosure. Those entitled to the Dunaway estate are necessarily affected by such proceedings. We also doubt whether all the facts necessary to such relief were pleaded or shown, there being no showing as to the balance, if any, due on the judgment, so that there were no allegations as to the amount of the indebtedness for which a foreclosure could be had. It must he borne in mind that the issue tendered by the petition of trespass to try title was one of title and the pleading of the facts of mistake by defendant was also on the issue of title; the pleader’s conclusion following a statement of these facts being, “that by reason of the premises this defendant has a superior legal and equitable title to the above mentioned and described property to that of plaintiff,” etc., its prayer being that the plaintiff take nothing, that the defendant go hence without day and recover all costs and for general and special, legal and equitable relief.

The right of reformation of the deed of trust and foreclosure anew was independent of the issues in the trespass to try title suit, but which, if all the necessary parties were before the court and the proper allegations had been made, the defendant could have litigated in a cross-action. Authorities above cited, and Burks v. Burks, 141 S. W. 337; Moore v. Snowball, 98 Tex. 16, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596. But because, in the trial of the issue of title, facts are incidentally shown which might, if the proper parties were in the case, justify the granting to defendant of affirmative relief on such a cross-action, the court below was not required on its own motion to stay the trial of the issue of title joined by the parties, and require the making of additional parties in order that the rights thus incidentally disclosed might be tried, and we do not think we would be justified at this stage of the proceedings in reversing the case for this purpose.

The other matters urged in the motion for rehearing ¡were disahssed in our original opinion, to which we adhere.

The motion for rehearing will be overruled.
      <gu»Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUEF, C. J.

text:
    McBRIDE v. BRIGGS et al.
    (No. 1244.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 21, 1917.
    Rehearing Denied Dec. 19, 1917.)
    1. Election of Remedies &wkey;>10 — ¡Mistake— . Effect>-Trusts.
    That an attorney was mistaken as to the rights of his clients, in filing a suit to establish a lien on land, will not defeat their rights in an action to enforce a parol trust afterwards properly alleged and proved, but only goes to the weight to be given to the evidence.
    2. Trusts <&wkey;44(3) — Parol Trusts — Suits-ciency of.Proof — Certainty.
    In proving a parol trust on land, the question is, not as to the amount of the _ evidence, but does the evidence adduced make it reasonably clear and certain that the verbal trust was made.
    3. Trusts &wkey;44(l) — Verbal Trusts of Land —Sufficiency of Evidence.
    Evidence held sufficiently clear and certain to support" the finding of a chancellor that there was a verbal trust on land. '
    4. Trusts <&wkey;35(2), 43(1) — Verbal Trusts— Parol Evidence.
    A verbal agreement to pay part of the purchase price of lots, for half interest, made prior to delivery of deed to defendant’s husband alone as grantee, will subject ihe property to the confidence'or trust confided in defendant’s husband, and such agreement can be shown by parol.
    5. Trusts <&wkey;35(2) — Parol Trusts — Proof.
    Where it was verbally agreed that title should be taken jointly to lots, it is immaterial, in an action by one to have a trust declared for a portion thereof, that the other had taken a deed in his name alone.
    6. Limitation of Actions &wkey;>103(2) — Trusts —Repudiation.
    Limitations do not run against an express trust until the trustee repudiates the trust by word or acts which will bring knowledge thereof to the beneficiary.
    7. Partition <&wkey;12(3) — Homestead—“Heirs” —Constitutional Law.
    Const, art. 16, § 52, prohibiting partition of homestead by heirs during lifetime of surviving wife, does not apply where the wife buys the children’s interest, and partition is prayed by a third party against the wife under a claim that the husband was. holding an interest therein in trust; the wife not being an heir.
    [Ed. Note. — For other definitions, see Words and Phrases, First and .Second Series, Heirs.]
    Appeal from District Court, Deaf Smith County; Reese Tatum, Judge.
    Suit by E. R. Briggs and C. E. Briggs against Lillie McBride for partition of land alleged to be held by defendant in trust. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Ben H. Stone and E. T. Miller, both of Amarillo, for appellant. W. H. Russel], of Hereford, for appellees.
   HUEF, C. J.

This suit was instituted by the appellees, E. R. Briggs and C. E. Briggs, against Lillie McBride, declaring an express trust on the title to two lots in the city of Hereford, the deed to which was taken in the name of Louis McBride, deceased, who was at the time of his death the husband of Lillie McBride, and praying also for a partition. This is the second appeal of this case. A report of the former appeal will be found in 190 S. Wi. 1123. The case was tried by the court without a jury. The judgment entry recites:

“It further appearing to the court that plaintiffs and Louis McBride agreed to jointly purchase the property in controversy, to wit, all of lots 7 and 8, block 14, of the town of Hereford, in Deaf Smith County, Tex., as per map or plat of said town, of record in deed records of Deaf Smith county, Tex., to which reference is made, and to take title thereto jointly; that said plaintiffs furnished $1,550 of the purchase price and the said Louis McBride furnished $1,-450 of said purchase price, and that said Louis McBride took the title to said property in his own name, and the legal title to said property is now in Lillie McBride.”

The first assignment assails the judgment “because the evidence does not establish said trust with clearness and satisfaction.” The assignment is followed by propositions: (1) To establish parol trust the evidence must be clear, unequivocal and convincing; (2) the evidence in the case was not clear, satisfactory, and convincing as to the existence of the trust. Mrs. McBride is the daughter of the appellees, and Louis McBride was the husband of Mrs. McBride, and died before the institution of this suit. The evidence shows, after the marriage of McBride to the daughter-, the two families, appellant and appellees, lived together in the same home a great portion of the time, about 25 years, and established a common home. It is also in-ferable from the evidence that Mrs. Briggs acted for herself and husband in this transaction, and in fact in most of their business matters, and that Louis McBride, during his lifetime, attended to the business for himself and wife. Up to the time of his death, the best of feelings obtained between the two families, and the utmost confidence was reposed in Louis McBride by the appellees. Most of their holdings were in common. However, it appears that in Illinois, where they lived before removing to Hereford, McBride owned about 11 acres of land, which he sold and obtained therefor .$1,000. After removing to Hereford, the two families were partners in a restaurant, being equally interested in it, and it appears to have been a profitable business. The property in question was resident property, and Mrs. Briggs and Louis McBride examined it together, and she testified that they agreed to purchase it jointly, each paying one-half of the purchase money; that they did buy It together, agreeing to pay therefor $3,000; that McBride paid $1,000 down and she later paid $1,100. When the deed was taken, she supposed at the time it was in the name of both, but subsequently she learned that it was In the name of McBride alone. The deed is dated April 17, 1909, and recites a cash consideration of $1,750 and the assumption of a note for $1,250, due November 1, 1909. The evidence appears to be undisputed that McBride paid $1,000, and a short time after-wards Mrs. Briggs paid the $1,100.

We gather from the evidence that the $2,-100 thus paid was applied on the cash payment of $1,750 recited in the deed, and the balance of the payment paid on the note assumed, leaving the balance of the agreed consideration $900 which was afterwards paid out of the profits derived from the restaurant, thereby extinguishing and payiug the $1,250 note assumed. It is an uncontrovert-ed fact that this $900 was owned equally between the two parties, and that one-half of the profits which were so applied — that is, $450 — belonged to the appellees, thus making $1,550 paid by them as the; consideration for the land. The only contention by Mrs. McBride is that her mother gave to her the $1,100 to buy a home. This sum she contends that her mother made them a present of. We do not understand from the evidence that she contends the same as to the $450 out of the $900 paid. Mrs. Briggs, who paid these sum?¡, expressly denies that she gave it to her daughter, but says it was paid under the agreement made before the purchase of the land to buy the lots jointly. The evidence shows that McBride repeatedly acknowledged to Mrs. Briggs and to others that the appel-lees owned equally with him an' undivided ⅛ terest in the lots. This evidence is clear and satisfactory that the property was purchased under an agreement between the parties and paid for under the agreement to hold the title jointly; but in making the deed it was made to McBride, which he admitted repeatedly he was holding for the benefit of the ap-pellees, and also expressed a willingness to deed to them their interest and doubtless would have done so if death had not intervened. It appears to be the appellant’s contention, because Mrs. McBride contradicts her mother and contends that the money was given to her to purchase a home, and also because it appears that the original petition filed in this case alleged that the $1,100 was a debt due the appellees and sought to establish a lien to secure it on the lot, that this renders the evidence unsatisfactory. Mrs. Briggs explains the filing of the original petition, testifying that, after the death of McBride, Mrs. McBride left Hereford and was living in Amarillo, and she was informed she was trying to execute a mortgage on the lots, and, upon learning these facts, she called upon an attorney for the purpose of instituting suit to prevent the giving of this mortgage upon these lots; that she did not go into the facts fully with the attorneys; but that the suit was originally filed more to prevent the giving of the mortgage than for any other purpose.

The mere fact that the attorney was mistaken as to the rights of appellee in filing the suit will not defeat those rights, if after-wards properly alleged and proven. These matters go only to the weight to be given to the testimony on the agreement. The true criterion in this case is not, has the trust been established by a particular amount of evidence, but, does this evidence, after being adduced, make it reasonably clear and certain that the verbal trust was made, as alleged? The evidence, if true, clearly established the trust. The court appears to have believed it; the conscience of the chancellor was satisfied by the quantum of proof required under the law. Cuney v. Dupree, 21 Tex. 211; Miller v. Heinbaugh, 153 S. W. 338, 342, in which writ of error was denied; Sachs v. Goldberg, 159 S. W. 92; Ellerd v. Ellison, 165 S. W. 876. The agreement made by McBride and appellee before the lots were purchased or deeded, and which was existent when the title vested by deed to McBride, will subject the title to the trust or confidence reposed in McBride when he received the deed, and this agreement so made could properly be shown by parol. This rule has been steadily followed in this state since James v. Fulcrod, 5 Tex. 511, 55 Am. Dec. 743; Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L. R..A. (N. S.) 381; Roach v. Crume, 41 S. W. 86; Brotherton v. Weathers-by, 73 Tex. 471, 11 S. W. 505; Watkins v. Watkins, 141 S. W. 1047.

The second, third, and fourth assignments are overruled for the reasons above given. The fact that the parties may have agreed that the deed should be taken in the name of both, and that McBride, in violation of that agreement, took the deed in his own name, does not in our judgment affect the matter. We believe Sparks v. Taylor, above cited, settles the question.

The fifth assignment asserts that the cause of action is barred by the two years’ statute of limitation. McBride died May 8, 1914. The second amended original petition was filed May 4, 1916. Up to his death McBride did not repudiate the trust, but repeatedly acknowledged it. ..a.11 the parties occupied the premises in common and interchangeably as a home. Appellees rented the same, paid taxes out of the common funds, as well as from individual funds. During McBride’s lifetime, he and appellee joined in a deed of trust on the lots to a bank; in fact, there is no direct evidence of repudiation by Mrs. McBride unless it was spine time after the death of her husband, when she tried to mortgage the lot, and to prevent which these proceedings were instituted. Limitation does not run against an express trust until the trustee repudiates the trust by word or acts which will bring knowledge of such repudiation to the beneficiary. Brotherton v. Weathersby, 73 Tex. 471, 11 S. W. 507; Cooper v. Lee, 75 Tex. 114, 12 S. W. 483; Briggs v. McBride, 190 S. W. 1123. There was no act on the part of McBride inconsistent with the rights of appellees up to the time of his death, and none on the part of his wife until she attempted to mortgage the land, if this can be asserted as a hostile act to the rights of appellees. The trial court was justified in finding that the action was not barred.

In the concluding argument of appellant, it is asserted the court could not order a partition and sale of the lots. This seems to be regarded by appellant as fundamental for the reason that it wag the homestead of Mrs. McBride. The facts show that she and her husband owned, under the agreement to purchase, only 20/00 of the lots at his death. The evidence further shows that they had two children living who, it is admitted, by agreement after their, father’s death, conveyed their interest to their mother. The appellant appears to have in mind section 52, art. 16, of the Constitution. The Constitution and statutes prohibit the partition of the homestead between the heirs during the lifetime of the surviving wife so long as she shall elect to use and occupy it as such. She was not an heir of her husband, and she purchased the children’s interest. This provision of the Constitution and statutes does not apply in this case. Savings, etc., v. Bristoll, 62 Tex. Civ. App. 387, 131 S. W. 641.

We believe the judgment should be affirmed, and it is, accordingly, so ordered.
      ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    SOUTHERN SURETY CO. v. STUBBS et al.
    (No. 7464.)
    (Court of Civil Appeals of Texas. Galveston
    Nov. 22, 1917.
    On Motion for Rehearing,
    1. Master and Servant <§=396 — Concurrent Jurisdiction oe Federal Courts — ■ Admiralty.
    An 'action on a policy issued under the Texas Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 5246h-5246zzzz) for the accidental drowning of the insured while at work on a dredge upon navigable waters of the United States, as an employs of the subscriber, is not one within the exclusive admiralty jurisdiction of a federal court, but may be brought in the state courts.
    2. Master and Servant &wkey;>375(l) — Injuries to Servant — Workmen’s Compensation —“Course oe Employment.”
    An assistant engineer who was employed on a dredge and whose duties required him to spend his hours off duty on board, who was accidentally drowned in a storm while off duty and while engaged in attempting to save the dredge from shipwreck, was killed in the “course of his employment” within the Texas Workmen’s Compensation Act.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second .Series, Course of Employment.]
    3. Master and Servant <&wkey;372 — Injuries to Servant — Workmen’s Compensation — “Arising out oe Employment.”
    Where an assistant engineer on a dredge was accidentally drowned while • off duty, but still on board, in attempting to save the dredge from shipwreck, the accident arose out of the employment within the Texas Workmen’s Compensation Act.
    4. Master and Servant <§=372 — Act oe God —Death of Servant.
    Where an assistant engineer was accidentally drowned while on board a dredge because of a violent storm, recovery on the insurance policy could not be defeated under Texas Workmen’s ' Compensation Act because the accident was an act of God.
    5. Master and Servant <§=385(1) — Workmen’s' Compensation — Judgment.
    Compensation under Texas Workmen’s Compensation Act should be allowed up to the date of trial alone without prejudice to sue for un-matured further installments, and judgment should not be given for the total amount.
    On Motion for Rehearing.
    6. Costs <&wkey;234 — On Appeal — ■ Prevailing Party.
    Where on appeal the judgment was reduced, ,it was error to tax costs against appellant.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Alva Stubbs and another, by next friend, Mrs. J. E. Gowland, against tbe Southern Surety Company, on a policy issued under the Texas Workmen’s Compensation Act. Judgment for plaintiffs, and defendant appeals.
    Reformed and affirmed.
    J. L. Darrouzet, of Galveston, D. T. Mason, of St. Louis, Mo., and J. A. Germany, of Dallas, for appellant. Frank S. Anderson, of Galveston, for appellees.
   GRAVES, J.

The appellees, Alva B. Stubbs, widow, and Richard Stubbs, minor, son of B. J. Stubbs, by Mrs. J. E. Gowland, as next friend, sued appellant for the compensation alleged to be due them upon a policy under the Texas Employer’s Liability Act, by reason of the drowning of E. J. Stubbs during the storm which raged on the coast of Texas on the 16th and 17th days of August, 1915, while he was employed as assistant engineer on the dredgeboat Houston, then being operated by the Standard American Dredging Company in Texas City Channel, the drowning being due to tbe capsizing of the dredge-boat.

Appellant answered by general demurrer and general denial, and specially that E. J. Stubbs, at tbe time of his death, was not “in the course of his employment,” and not pursuing the duties for which he was employed, and, further, that his death was the direct and proximate result of the act of God, for which no liability would attach on its part.

The case was tried before the court without a jury, resulting in a judgment for the plaintiffs for the sum of $5,400, being compensation at the rate of $15 per week for a period of 360 weeks, commencing on the date of the death of E. J. Stubbs, this sum of $5,400 to be paid by appellant in 360 weekly installments of $15 each, commencing on the 17th day of August, 1915, together with interest at 6 percent. from the maturity of each and every installment. From that judgment this appeal is taken.

Subsequent to tbe filing of its brief in this court appellant has also filed here its suggestion that the district court of Galveston county was without jurisdiction of the subject-matter of this suit for the reason that tlie accident occurred, under tlie findings of fact, upon tlie navigable waters of tbe United States, and was the result of one of the perils of the sea, bringing it within the exclusive admiralty jurisdiction of the federal courts, and asking on that account that the cause be reversed and dismissed.

The leading case relied upon in substantiation of this position is Southern Pacific v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086. But, after a careful examination of the Jensen Case, we conclude that it does not apply. That case arose under the Employers’ Liability or Workmen’s Compensation Act of the state of New York (Consol. Laws, c. 67), as the result of a fatal injury to a stevedore while unloading in New York Harbor, navigable water of the United States, a vessel engaged in interstate commerce. The action was directly against the employer, who, under that compulsory statute, had no option in the matter, as is allowed under our Texas law, but was required to subscribe and insure its employés thereunder. There was no question raised or involved respecting the jurisdiction of the state court over the subject-matter, and the United States Supreme Court, through a divided bench, held that the general maritime law, as accepted by the federal courts when acting in the exercise of their admiralty jurisdiction, must be adopted as the rule of decision by state courts of common law, when passing upon any case that might have been brought in the admiralty court, and that the particular New York compensation statute there involved attempted to give a remedy wholly unknown to the common law, conflicting in that respect with the United States Constitution, and for that reason was invalid; but we do not understand that opinion, nor any other to which we have been cited, to hold that the United States District Courts, sitting in admiralty, have exclusive jurisdiction of the subject-matter of suits in personam against the owner, where the subject-matter involves a cause of action of maritime origin; upon the contrary, we understand it to be the settled law of the federal ^Supreme Court, and so recognized in the Jensen Case, that in. all such cases the state courts of common law have concurrent jurisdiction with the District Courts of the United States. Where, however, the suit is in rem against the vessel, the rule is otherwise, and the original jurisdiction of the federal courts is exclusive. Such, we think, is the effect of the prevailing opinion in the Jensen Case, and of the cases therein cited, from which these paragraphs are quoted:

“By section 9, Judiciary Act of 1789 (1 Stat. at L. 76, 77, c. 20), the District Courts of the United States were given ‘exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, ⅜ ⅜ * saving to suitors, in all cases, the right of common law. remedy, where the common law is competent to give it.’ And this grant has been continued. Judicial Code, §§ 24 and 256 (36 Stat. at L. l 1091, 1160, c. 231; Comp. .Stat. 1916, §& 991(1), 1233). * * *
“Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the federal District Courts, ‘saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.’ The remedy which the [New York] compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court, and is not saved to suitors from the grant of exclusive jurisdiction. The Hiñe v. Trevor, 4 Wall. 571, 572, 18 L. Ed. 456; The Belfast, 7 Wall. 624, 644, 19 L. Ed. 266, 272; American S. B. Co. v. Chase, 16 Wall. 522, 531, 533, 21 L. Ed. 369, 371, 372; The Glide, 167 U. S. 606, 623, 42 L. Ed. 296, 302, 17 Sup. Ct. 930.”

Moreover, the accident here did not occur upon a vessel engaged in interstate commerce, but upon a dredge, which was shown to be not even seagoing, and hence for that reason was not within the purview of the federal Employers’ Liability Act, as claimed by appellant, as well as for the further consideration that such act has reference to carriers by interstate railways alone, and not by water. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. Stat. 1916, §§ 8657 to 8665, inclusive); New York Central Railway Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, Ann. Cas. 1917D, 1139; Erie Railway Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057.

As is elsewhere herein stated, this was not a suit in personam against the owner of a vessel to recover either upon a contract, or for damages for a maritime or other character of tort, but was upon an insurance contract against an insurer, who voluntarily and for a valuable consideration assumed the obligation to pay compensation to the employs or his beneficiaries, upon the happening of an accidental injury while in the course of his employment, and who received the benefits of that contract in the premiums paid it for carrying the risk. We therefore think that, in these circumstances, its claim that appellees mistook their forum cannot be availed of.

. Upon these considerations the contention that the trial court had no jurisdiction is. overruled.

Upon the merits the questions presented in appellant’s brief for review, being five assignments of error, are: (1) Whether the court erred in rendering judgment for appel-lees because the death of deceased was the result of an act of God; and (2) in holding that deceased came to his death while acting in the course of his employment; and (3) in finding that the death of the deceased was the result of the perils of the sea, and therefore incident to his employment; and (4) in rendering judgment for the full amount of the compensation provided by law.

After reviewing the entire record, we are-convinced that no one of these questions, points out error, except that last mentioned, relating to the amount of the. judgment.

No statement of facts has been brought up with the record, and the most material fact findings of the trial court, none of which are attacked, were the following:

“That on the 16th and 17th days of August, 1915, one E. J. Stubbs was an employé of the Standard American Dredging Company,’ hereinafter referred to as ‘subscriber,’ under contract of hire at and in the county of Galveston, state of Texas, being so employed as assistant engineer on the dredgeboat Houston, which was engaged in dredging what is known as the Texas City Channel, in Galveston Bay, in said county, said dredgeboat Houston belonging to and being operated by the-said subscriber, and that while the said E. J. Stubbs was so engaged and while acting in the course of his said employment the said dredgeboat Houston capsized, by reason whereof the said E. J. .Stubbs was accidentally drowned.
“That the said dredgeboat Houston was actually engaged in the work of dredging the said Texas City Channel up to at least noon of Monday, August 16, 1915, and that the said E. J. Stubbs was then upon said dredge, actively in the discharge of his duties as assistant engineer and for and on behalf of the Standard American Dredging Company, and so continued after the actual work of dredging ceased, and all during the time that followed, up to the capsizing of said dredge and the accidental death by drowning of said Stubbs while in the course of his employment; that all during the period ..from about noon, or a little later, until the capsizing of said dredge, the said Stubbs, together with other employés engaged thereon, were, in the course of their duties, and as a part thereof, directed and required to do all they could to secure the' said dredge against the storm and hurricane, which finally about 2:30 o’clock a. m. of Tuesday, August 17, 1915, engulfed and capsized said dredge, causing her to sink to the bottom of said Texas City Channel.
“That the superintendent or captain of said dredge, Capt. C. A. Lewis, was at all times in supreme command of said dredgeboat and the employés thereof, includingi the said E. J. Stubbs; that ’the said E. J. Stubbs was acting under the orders of the said superintendent and captain up. to the time that the said .Stubbs lost his life.
“That the storm or hurricane which sank said dredge, and during which the said Stubbs was drowned, was probably the most violent and severe which ever visited Galveston Bay and Island, when considered with reference to the velocity of the wind and duration of the storm.
“Said dredgeboat Houston was equipped with sleeping accommodations for the crew of said vessel, and while it was usual for the work to be done by such crew in eight-hour shifts, yet they could be, and were, under their contract of employment, required to work longer periods, being paid overtime for the period actually engaged in work beyond such period of eight hours, and were, under their said contract of employment, required to work overtime at periods of stress or danger to the dredge, its safety, or in the event of the breaking down of its machinery or other emergency, and said crew was subject to the orders of the superintendent or captain of said dredge at any and all times that he might choose to call them, and when not aboard the dredge and qctually engaged in the performance of duties there. The said E. J. Stubbs being a member of the .crew of said dredge and controlled accordingly, such employment required the said E. J. Stubbs to be and live upon said dredge a large part of the time.
“I further find that the sinking and capsizing of the dredge, caused by the violence of the storm, was one of the perils of the sea, and a risk arising out of and in the course of the employment of the deceased.
“At the time that the dredge Houston ceased the actual work of dredging said channel at or about noon, Monday, August 16, 1915, the storm and hurricane had so developed in violence and intensity that such work could proceed no further, and it became necessary to secure the dredge; that is, to make it as tight and fast as possible to keep it from foundering from the violence of the storm. There was at such time a large and small gasoline launch belonging to said dredge, and used in connection with its operation; but said larger launch was at Texas City, and not at the dredge, when such actual work of dredging ceased on board the dredge, but the smaller launch was there.
• “Several efforts on the part of the larger launch to reach such dredge from Texas City were made, but the larger launch was unable, owing to the violence and intensity of the storm, to reach said dredge. Independent efforts were also made in Galveston to secure a boat or vessel to go to said dredge Monday afternoon, August 16, 1915, but no vessel could be secured to go owing to the violence of the storm.
“The United States Weather Bureau sent out warnings of the storm of 1915, but the storm which came was unexpected in severity and duration, and was much more violent that the Weather Bureau had anticipated, both as to the velocity of the wind and the length of time it blew. But there is nothing to show that the said E. J. Stubbs knew anything of said warnings.
“The dredge Houston was one of the finest and staunchest boats of its kind that could be built for the work and in the waters for which it was designed and in which it was engaged at the time of its sinking, but it was not a seagoing dredge.
“Even if the said E. J. Stubbs had not been required by the superintendent and captain to work upon said dredge to save said dredge, and, as it may fairly be assumed, the lives of those thereon as well, after the actual work of dredging ceased, I find that said Stubbs, if he had attempted to leave said dredge at any time after noon of August 16, 1915, would reasonably have assumed a great risk of death by drowning in trying to reach land with the only means available at said dredge, and he reasonably could have expected to encounter by remaining on said dredge.”

Upon these findings the court’s conclusion of law was that Stubbs was an employé of the dredging company, and came to his death by accidental drowning, while actually engaged in the performance of his duties, and while acting in the course of his employment, entitling appellees to the benefits of our Workmen’s Compensation Act. Articles 5246h to 5246zzzz, inclusive, Vernon’s Sayles’ Texas Civil Statutes; chapter 179, Acts 33d Leg.

As before noted, the suit was brought against the insurance company under that act to recover the compensation thereby prescribed, and was not a suit against an employer for damages for personal injuries resulting from alleged negligence. If it had been of the latter class, that is, if negligence had been the basis of the recovery sought, appellant’s contention that it is not liable, because the death of appellees’ decedent was the direct and proximate result of the immediate act of God, might have been meritorious, and the cases it cites applicable; but not so, we think, when applied to the character of suit here involved, that is, one under our Employer’s Liability Act against the insurer upon’ a contract of insurance founded upon a wholly different theory of liability, that of compensation without any reference to negligence. The nature of that act is very succinctly stated by Chief Justice Phillips in Middleton v. Texas Power and Light Co. (Sup.) 185 S. W. 559, in these paragraphs:

“Its general purpose is to work an important change in the law in regard to the liability of employers for personal injuries to their employes, or for death resulting from such injuries, and the compensation afforded therefor to employes or their beneficiaries. * * ⅜
“This compensation, fixed by the act on the basis of the employe’s average weekly wages, accrues to him absolutely upon his suffering any personal injury in the course of his employment which incapacitates him from earning full wages for as long a period as one week, or to his representatives or beneficiaries in the event of his death from the injury, whether or not due to the negligence of the employer or any of his servants or agents. ⅜ ⅜ *
“Any employer of labor within the state, with the exceptions provided, may become a subscriber, and by complying with the act be, except as to exemplary damages just noted, exempt from all common-law or statutory liability on account of injuries suffered in his service by his employes,” etc.

It is thus seen that the benefits accrue absolutely upon the employé’s suffering injury in the course of his employment; but appellant here answers that at the time of the fatal accident Stubbs was not acting in the course of his employment, that of an assistant engineer upon the dredgeboat, nor pursuing its duties, since no dredging was at that precise time being actually done, but had ceased to be so engaged some 14 hours before, and was then either attempting to protect himself or the dredge from violence of the storm; that he was employed as an engineer to do dredging work, and not for the purpose of protecting the dredge from the act of God.

In the face of the fact findings already recited it seems to us to be splitting hairs to say that Stubbs was not acting “in the course of his employment,” for such is the exact language of our compensation statute. What does that expression mean? In the case of Larke v. John Hancock Mutual Life Insurance Company, 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E, 584, the court says:

“An injury to an employs is said to arise in the. course of his employment, when it occurs within the period of his employment, at a place where he may reasonably be, ⅜ * ⅜ or engaged in doing something incidental to it. ‘In the course of’ points to the place and circumstances under which the accident takes place, and the time when it occurred. Fitzgerald v. Manchester Liners, Ltd. [19106 A. C. 498, 500; McNicoFs Case, 215 Blass. 497, 507, 102 N. E. 097, L. R. A. 1916A, 306; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458, 460.”

In Bischoff v. American Car Co., 190 Mich. 229, 233, 157 N. W. 34, 36, it is said:

“Of course, the scope of such particular employment may be enlarged for the time being by the direction of some superior who has authority; and in the case of an actual emergency it may be held that any reasonable attempt to preserve the employer’s property is within the general lines of an employe's duty.”

The rules stated in the cases quoted from, we think, relieve the case at bar from any difficulty in this respect. Stubbs was living upon the dredgeboat, and at all times under and subject to the orders of its captain, and the storm had not only created an emergency which required the efforts of all employes to keep it afloat, but had produced a situation permitting of nothing else; in other words, it was a Hobson’s choice for those poor fellows so caught upon that boat, and Stubbs could have done nothing else than follow the primal instinct of self-preservation by helping to keep the boat above the seas.

Since it was only necessary under the statute to find that the accident occurred “in the course of the employment,” it may be that the court’s further finding that the fatal accident “arose out of the employment” was unnecessary, but under the detailed facts shown here it certainly was not error. We think the Larke Case already quoted from, and the authorities it cites, makes this conclusion very clear.

In this connection it may be further said’’ that this storm could not be said to have been either unprecedented or not within the reasonable contemplation of the parties in making the insurance contract here involved, because it was not only a matter of common knowledge, but the trial court found that other storms and hurricanes of great violence had visited Galveston Bay and its vicinity in the years of 1875, 1886, 1900, and 1909. The nature of the employment, the conditions under which it was to be and was pursued, the exposure to probable injury from reasonably to be expected storms of similar character were all matters incident to such a risk as was here underwritten, and therefore an injury maturing such a risk, we think, could well be said to have been incidental to and to have arisen out of that employment.

Finally, having been thus knowingly and voluntarily entered into, this absolute and unqualified contract of insurance was not one the surety company was bound or compelled to make, nor did the law require any such duty or impose any such obligation upon it, wherefore it will not be permitted to excuse itself therefrom by pleading inevitable accident or the act of God. 1 Am. & Eng. Ency. Law, p. 588; 6 Ruling Case Law, p. 1001, par. 367; Northern Irr. Co. v. Dodd, 162 S. W. 948; Northern Irr. Co. v. Watkins, 183 S. W. 436.

Pursuant to the views expressed, appellant’s first three assignments are overruled*

The fourth and fifth assignments, relating to the amount of the compensation awarded, must be sustained. Instead of for $5,400, the judgment should have been for the amount of the matured weekly payments from the 17th day of August, 1915, up to .the date of trial, on the 17th day of November, 1916, a period of 64 weeks, making a total of $815, together with interest thereon at the rate of 6 per cent, per annum from the date of entry of the judgment on November 18, 1916, and apportioned among appellees in the same manner as was the larger sum, and without prejudice to their right to bring suit for unmatured further installments. Accordingly, the trial court’s judgment will be reformed so as to give appellees judgment for $815 in the manner and form just stated, and, as so reformed, will be affirmed. Article 5246kk, Yernon’s Sayles’ Texas Civil Statutes 1914; N. Y. Life Ins. Co. v. English, 70 S. W. 440, 442, 443; Jones et al. v. Dodd, 192 S. W. 1134, 1137, 1138; Racke v. Anheuser Busch Brewing Ass’n, 17 Tex. Civ. App. 167, 42 S. W. 774; Davidson v. Hirsh, 101 S. W. 269.

Reformed and affirmed.

On Motion for Rehearing.

In its motion for rehearing appellant has called our attention to the fact that, while our former judgment reduced the trial court’s judgment against it from $5,400 to $815, the costs of the appeal were taxed against it. This should not have been, and our judgment will accordingly be here so modified as to tax the costs of this appeal against appellees instead of against appellant. But in all other respects, although the motion for rehearing has been carefuHy considered, we are unconvinced that any error has been committed, and our former judgment will be adhered to.

Granted in part, and in part refused.
      <3x=jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes