source: Caselaw Access Project

author: WILLSON, G. J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. FULTS.
    (No. 1462.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 13, 1915.
    Rehearing Denied May 20, 1915.)
    Master and Servant <&wkey;208 — Employé oe Independent Contractor — Negligence op Contractor’s Employer — Assumption of Risk.
    Plaintiff, an employé of M., who had contracted to ice defendant’s refrigerator cars, in attempting to go by way of the tops of the refrigerator cars, from one end to the other of the platform, which M. had filled with ice to load into such cars, did not assume the risk from negligence of defendant’s inspector in leaving open and across a running board used in passing between the platform and the top of the car a bunker door of the car.
    [Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. § 551; Dec. Dig. <&wkey;>208.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Action by Porter B. Pults against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    By the terms of a contract between appellant and one Murphy the latter undertook to ice refrigerator cars for the former “during the fruit movement season, 1913,” and “to furnish all necessary tools and labor for handling the ice from car to platform and platform to refrigerators.” Appellee was employed by Murphy to assist in the work of icing the cars. Extending east and west about 300 feet was a platform 18 or 20 feet high. Ice was unloaded onto the platform from cars placed along the south side thereof, and from the platform to refrigerator cars placed by appellant along the north side thereof. The platform was 4 or 5 feet higher than the refrigerator cars. Blocks of ice, some of them weighing 200 pounds and others 300 pounds, were transferred from the platform to the tops of the refrigerator cars by means of iron running boards extending from the platform to the tops of such ears. The boards were also used by appellee and others engaged in the work in passing from the platform to the cars and back. Icing the cars was accomplished by filling bunkers at the ends thereof with ice. The bunkers were provided with doors about 2 feet square fastened to the tops of the cars by means of hinges. When open the doors lay back on the tops of the cars. At about 2 o’clock of the morning of July 15, 1913, appellee and men he was assisting in icing cars quit work and went to the west end of the platform to eat their supper. While they were eating, one Clair, employed by appellant for the purpose, inspected the bunkers of cars to be iced. In doing this he opened the door of one of the bunkers, turning it back across one of the running boards referred to, then resting on the top of the car. Instead of closing the door after he had inspected the bunker, he left same in the position he had placed it across the running board. Having finished eating his supper, appellee started back to the east end of the platform to continue the work of icing cars. Part of the platform was so covered with blocks of ice as to obstruct his passage over same. He therefore concluded to go to the east end of the platform over the tops of the cars. To do this he attempted to pass from the platform to the top of one of the cars over the running board across which Clair, appellant’s inspector, had left the door to one of the bunkers. The place was not sufficiently lighted, and appellee did not discover that the bunxer door had been left across the running board until he caught his left foot under it. As a result of his so catching his foot he fell from the top of the car to the ground below, a distance of 12 or 14 feet, and thereby suffered injury to his person. On the theory that appellant’s inspector, Clair, was guilty of negligence in leaving the door of the bunker open as stated, appellee recovered against appellant the judgment for $750, from which the appeal is prosecuted.
    The fourth paragraph of the charge of the court to the jury, which appellant complains was erroneous, was as follows:
    “(4) The evidence shows that on the night of the 14th or the early morning of the 15th of July, 1913, the plaintiff was in the employment of J. B. Murphy, engaged in icing cars of fruit on the premises of the defendant; and you are instructed that it was the duty of the defendant to exercise ordinary care to have and keep said premises, including' the platform and cars, where plaintiff was engaged at work, in a reasonably safe condition for his use in his work.”
    The fifth, sixth, seventh, and eighth paragraphs of the charge, which are not complained of, were as follows:
    “(5) Now, if you believe from the evidence that defendant’s inspector opened a bunker door on a car plaintiff’s duty required him to go upon, and left said door lying across the running board extending from the platform to said car, .and that the inspector’s so leaving said door across said board, if he did, rendered the use of said running board and car dangerous to persons using the same under the surrounding circumstances, and that same was negligence as that term is defined herein, and if you find that plaintiff, in returning from where he had eaten his supper, to the east end of the platform to go to work, attempted to cross upon said running board to the car, and that said running board was customarily used by plaintiff for that purpose, and if you find that as he was so crossing upon said board (if he did), and as the proximate result of defendant’s negligence, if any, in leaving said bunker door across said running board, if he did, plaintiff’s foot caught on or against the said door, and he was thereby, caused to and did fall to the ground and sustain the injuries, or any of them, alleged in his petition, and that at the time he was exercising ordinary care for his own safety, then you will find for the plaintiff, unless you find for the defendant under other issues submitted to you by the court.
    “(6) Unless you believe from the evidence that the defendant’s inspector did open the bunker door and did leave the same across the said running board extending from the platform to said car, and unless you find that the leaving of the said door across the said running board, if it was so left, was negligence, as that term is defined herein, you wifi find for defendant.
    “(7) If' you believe from the evidence that the plaintiff, in passing from the platform to the car across the running" board extending from the platform to said car, if he did so cross, at the time and in the manner in which he did, failed to exercise such care as an ordinarily careful and prudent person should exercise under the same or similar circumstances, and that such failure, if any, caused or contributed to cause his injury, if any, then you will find for the defendant.
    “(8) The plaintiff, Porter B. Fults, in accepting the employment and undertaking the work in which he was engaged, assumed all the risks and dangers ordinarily incident to his employment and the character of work in which he was engaged, and if you believe from the evidence that the plaintiff was caused to fall by reason of conditions ordinarily incident to his employment and the character of work in which he was engaged, then he cannot recover, and you will find for the defendant. But the plaintiff would not assume the risk of injury arising from the negligence of the defendant’s inspector, if any. If yo.u find from the evidence that the position of the bunker door was open and obvious to view, and that the plaintiff would, by the exercise of ordinary care in keeping a lookout for obstructions for his own safety, have discovered the bunker door in time to have prevented his going upon and over it, and could thereby have prevented the accident and injury to him, if any, then and in that event you will find for the defendant.”
    The testimony was sufficient to support the findings involved in the verdict of the jury on the issues submitted to them in the portion of the charge set out above.
    Dinsmore, McMahan. & Dinsmore, of Greenville, and Chas. C. 1-Iuff, of Dallas, for appellant. B. Q. Evans and H. L. Carpenter, both of Greenville, and H. B. Mock, of New York City, for appellee.
   WILLSON, G. J.

(after stating the facts as above). The contentions presented by the assignments are believed to be without merit. They are as follows:

1. That the trial court erred in overruling appellant’s exceptions to appellee’s petition on the ground: (1) That it appeared from allegations that appellee “was guilty of negligence which caused or contributed to cause his injuries”; and (2) that it did not appear from allegations therein “whether the plaintiff was an employe of the defendant at the time of the alleged accident.”

2. That in the fourth paragraph of his charge the trial court erroneously assumed the fact to be that appellee at the time he was injured was appellant’s employe.

3. That the trial court erred in overruling appellant’s motion for a new trial:

(1) “Because the injuries, if any, plaintiff sustained were caused by his own carelessness and want of ordinary care for his own safety in going upon the cars upon the top of the car from which plaintiff fell, and undertook to travel on and across the top thereof, and the care less manner in which the plaintiff went upon and across the top of said car;” and (2) “because all of the evidence shows that if there was ice. placed on what is known as the icing platform at or near the place where the plaintiff is alleged to have been injured, which ice on the platform obstructed plaintiff’s passway or prevented him from walking down said platform to the place where he was intending to go just before the accident, and the ice was placed there under the orders and directions of J. B. Murphy, who is shown by all the evidence' to have been an independent contractor, for whom the plaintiff was at work at the time of the alleged accident, and the ice was not placed on said platform under the direction or supervision of the defendant, and the plaintiff, in leaving the icing platform and going upon the top of the string of cars that had been placed at the icing bent for using, assumed the risk of any and all the injuries he might sustain by reason of going over and across the top of said cars.”

The judgment is affirmed.
      ©seFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    LIVERPOOL & LONDON & GLOBE INS. CO. v. LESTER et al.
    (No. 450.)
    (Court of Civil Appeals of Texas. El Paso.
    April 29, 1915.
    Rehearing Denied May 20, 1915.)
    1. INSURANCE i&wkey;255 — Indemnity — Risks — Statute.
    Under Rev. St. § 4947, providing that any policy provision that answers in the application, if false, shall avoid the policy, shall constitute no defense to any suit thereon, unless it is shown at the trial that the misrepresentation was material to the risk, a statement in a policy indemnifying insured against direct loss by fire of the dividends of certain stock, that it was understood that for three years prior thereto the company had earned a dividend of 25 to 30 per cent, per annum, was not promissory in its nature, and, in view of findings that the defendant’s agents knew that the company had not earned such dividends and that even if they had known would have issued the policy, was not material to the risk and no defense.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 548; Dec. Dig. &wkey;255.]
    2. Insurance <&wkey;377 — Avoidance — False Representations — Waiver.
    Where the agents of defendant company knew when they issued a policy indemnifying insured against loss of dividends that the corporation in which insured held stock had not earned dividends of from 25 to 30 per cent, for each of "the three preceding years, the issuance of the policy stating that' it was understood that for three years prior thereto the corporation had earned such dividends, estopped the company to Question the validity of the policy on the ground that the dividends paid were in fact less than as stated.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 942, 966, 967, 975-997; Dec. Dig. &wkey;377.]
    3. Insurance <&wkey;668 — Action on Policy-Question for Jury.
    In an action on an indemnity policy, where plaintiff testified to a telephone conversation with the defendant’s agent which was denied by .defendant, the question of the identity of the party with whom plaintiff had the conversation was for the jury.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. &wkey; 668.]
    4. Insurance <&wkey;655 — Action on Policy— Bvtdenoe — Fraud .
    In an action on an indemnity policy, evidence as to conversations years prior to the date of the policy sued on forming the basis of the subsequent renewals of the policy, were admissible on the defense of fraud based upon misrepresentation and concealment as to the earnings of the company, against loss on whose dividends the policy indemnified.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1877-16S1, 1682-1685; Dec. Dig. &wkey;655.]
    5. Trial <&wkey;256 — Requested Instructions.
    Where a party desires a more complete instruction, he should prepare and request an instruction to that effect.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. &wkey;256.]
    6. Appeal and Error &wkey;>1170 — Harmless Error — Instructions.
    In an action on an indemnity policy, the failure of an instruction defining misrepresentation to mention acts as well as statements, was one of omission and not a misdirection, and, where the question of misrepresentation based on plaintiff’s act was submitted to the jury, was not prejudicial within Rule 62a (149 S. W. x), providing that judgment shall not be reversed for error at the trial not calculated to cause the rendition of an improper judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. &wkey;1170.]
    7. Insurance c&wkey;256 — Avoidance—Misrepresentations.
    Where an insurer would have issued an indemnity policy knowing the truth as to the matters claimed to have been misrepresented and was not influenced by the representations made, their falsity would not avoid the contract.
    [Ed. Note.' — For other cases, see Insurance, Cent. Dig. §§ 540, 549; Dec. Dig. &wkey;256.]
    8. Appeal and Error &wkey;>1068 — Harmless Error — Instructions.
    In an action on an indemnity policy, any error in the court’s definition of concealment was harmless, where the jury expressly found that defendant’s agent knew of the facts alleged to have been concealed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. &wkey;3'1068.]
    9. Insurance <&wkey;666 — Indemnity—Amount of Recovery.
    Under a policy indemnifying the insured in the amount of $10,750 in the difference between a usual corporation dividend of 25 per cent, per annum and the amount less than that sum actually earned or paid, occasioned solely by fire, where it appeared that the property of the company destroyed by fire was valued at $80,000, on which there was $68,000 insurance, that its capital stock was $100,000, that plaintiff owned stock of the par value of $43,000, that the net proceeds during the year when the property was wholly destroyed were $10,480, which reduced by expenses left a balance of $7,139, a judgment deducting 43 per cent, of such balance and awarding judgment for the difference between such deduction and the face of the policy, $7,-680.18, was proper.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1791; Dec. Dig. <&wkey;>666.]
    Error from District Court, Harris County; ■Chas. E. Ashe, Judge.
    Action by J. E. Lester and another against the Liverpool & London & Globe Insurance Company. Judgment for plaintiffs, and defendant brings error.
    Affirmed.

      Thompson, Knight, Baker & Harris and W. C. Thompson, all of Dallas, for plaintiff in error. Andrews, Streetman, Burns & Logue, of Houston, for defendants in error.
   HIGGINS, J.

Plaintiff in error issued to J. E. Lester and Gohlman, Lester & Co., defendants in error, the owners of certain shares of the capital stock of the Standard Compress Company, of the par value of $43,-000, an insurance policy, insuring them in the sum of $10,750, against all direct loss or damage by Are on the profits derived from the dividends on said stock. The capital stock of said company was $100,000. The policy contained the following provisions:

“It is understood that for three years prior hereto that the said Standard Compress Company of Houston, Texas, has earned a dividend of 25 per cent, to 30 per cent, per' annum.
“It is understood that this insurance shall cover only such loss of profits as may be sustained by the assured in consequence of damage by fire to buildings, warehouses, sheds, and yards of the Standard Compress and the contents thereof during the continuance of this policy, which shall affect the dividends paid by said Standard Compress to their stockholders.
“In case of the total or partial loss by fire to the buildings and contents by which the ability of the Standard Compress Company to pay their usual dividend of 25 per cent, per annum may be impaired, it is assumed as a basis for settlement of any claim for loss of profits which may arise under this policy, that the Standard Compress Company shall use all due diligence to repair or rebuild said compress buildings, warehouses, sheds, and yards, and shall resume operations as speedily as possible in the compress buildings or elsewhere, or by such other practicable and reasonable means as may be devised, to maintain their usual dividends.
“The amount for which this company shall be liable is the difference between the usual dividend of 25 per cent, per annum and the amount less than the sum actually earned or paid, said reduction in earning power being occasioned solely by fire.”

During the term of the policy, all of the buildings, warehouses, sheds, yards and contents thereof, belonging to the company, of the value of $80,000, were destroyed by fire and were not replaced.

This suit was brought by appellees to recover the face of the policy, and upon trial before a jury was submitted upon special issues. Upon the answers thereto, judgment was rendered in favor of defendants in error for $7,6S0.18.

Among the issues submitted to the jury and tlieir answers thereto, are the following:

“No. 2. Did Childress & Taylor, as agents for defendant, know at the time it issued the policy sued on that Standard Compress Company had not earned for each of the three years next preceding the issuance of the policy sued on a dividend of from 25 per cent, to 30 per cent.? Answer: Yes.
“No. 3. Did the agents of the defendant believe from the acts of plaintiffs detailed in evidence, and the conversations with plaintiff, if any, detailed in evidence, that the Standard Compress Company had annually, for three years next preceding the issuance of the policy sued upon, earned a dividend upon its stock of from 25 per cent, to 30 per cent.? Answer: No.
“No. 5. Would the agents of defendant issuing the policy sued upon have issued the same as it was issued, and containing the terms same contained, if they had known or been advised that Standard impress Company had not earned a dividend of 25 per cent, to 30 per cent, upon its stock per annum for the three years next preceding the issuance of said policy? Answer: Yes.
“No. 6. Did Childress & Taylor, as agents for defendant, or did defendant, at the time the policy sued on was issued, know that Standard Compress Company was not paying to its stockholders a usual dividend of 25 per cent, per annum? Answer: Yes.
“No. 7. Did the agents of defendant, at the time of the issuance of the policy sued upon, believe from the acts of plaintiff, detailed in evidence, and the conversations with plaintiff, if any, detailed in evidence, that Standard Compress Company had paid a usual dividend to the stockholder's upon its stock of 25 per cent, per annum? Answer: No.
“No. 9. Would the agents of defendant, issuing the policy sued upon, have issued the same as it was issued, and containing the terms same contained, if they had known or been advised at the time that Standard Compress Company did not pay to its stockholders a usual dividend of 25 per cent, upon the stock held by them? Answer: Yes.
“No. 10. At the time the first policy was issued by defendant to plaintiffs, shown in evidence, did said agents of defendant believe that Standard Compress Company had earned for the three years next preceding the issuance of said policy an annual dividend of from 25 per cent, to 30 per cent.? Answer: No.
“No. 11. Did plaintiffs, Gohlman, Lester & Company, or either of them, misrepresent, in writing or otherwise, any material fact or circumstance with reference to the amount of the earnings of said Standard Compress Company? Answer: No.
“No. 12. Did the plaintiffs, Gohlman, Lester & Company or either of them, conceal from defendant, or its agents, any material fact or circumstance concerning the earnings of said Standard Compress Company? Answer: No.
“No. 13. Would an ordinarily prudent person, having before him the policy offered in evidence, issued by the Home Insurance Company on June 7, 1907, with the statement contained therein: ‘And paid, namely, 24%, 19% and 25%,’ in the condition in which you believe same was when submitted to the agents of defendant, have been put upon inquiry as to the amount of dividends actually paid by Standard Compress Company to its stockholders during the three years next preceding the date of the issuance of the first policy of the defendant? Answer: Yes.
“No. 14. If you answer the next preceding issue in the affirmative, then, and only in that event, you will answer the following question: “Would such inquiry, if made and prosecuted with ordinary diligence, have discovered to defendant, or its agents, the amount of dividends actually paid by the Standard Compress Company to its stockholders for the three years next preceding the issuance of the first policy issued by defendant to plaintiffs? Answer: Yes. ■
“No. 15. Would an ordinarily prudent person, situated as W. II. Seaman was at the time plaintiffs applied to him for the policy sued on, have made any further inquiry as to the facts of the earnings of the Standard Compress Company for the three preceding years? Answer: Yes.”

It appears that for three years prior to the issuance of the policy, the Standard Compress Company had not earned dividends of 25 to 30 per cent, per annum, and it insisted that this fact avoids the policy in view of the statement therein contained that:

“It is understood that for three years prior hereto that the said Standard Compress Company of Houston, Texas, lias earned a dividend ■of 25 per cent, to 30 per cent, per annum.”

Article 4947 of the Revised Statutes provides:

“Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the 'answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable, and whether it was material and. so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.”

The statement indicated related to the past; it was in no wise promissory in its nature, and in view of the jury’s findings, it cannot be contended that its falsity was material to the risk. Under the statute, it follows that judgment was properry rendered upon the same. Ins. Co. v. Strickler, 136 S. W. 599; Ins. Co. v. Wade, 127 S. W. 1186; Ins. Co. v. Caraway, 130 S. W. 478; Ins. Co. v. Ray, 138 S. W. 1122; Gross v. Ins. Co., 121 S. W. 517; Ins. Co. v. Rogers, 128 S. W. 625.

There is another complete answer to the contention that the policy is avoided by the falsity of the stipulation as to dividends. In response to the second and sixth special issues, it appears that the agents who issued the policy knew at the time that the Standard Compress had not earned dividends of from 25 per cent, to 30 per cent, for each of the three years preceding its issuance, and knew that it was not paying a usual dividend to its stockholders of 25 per cent, per annum, and it has a number of times been held in this state that to deliver a policy with full knowledge of facts upon which its validity may be disputed, and then to insist upon these facts as grounds of avoidance is to attempt a fraud. The issuance of the policy and acceptance of the premium under such circumstances is tantamount to an assertion that the policy is valid at the time of delivery, and constitutes a waiver of the known ground of invalidity. Under such circumstances, the issuance of the policy and acceptance of the premium with knowledge that dividends, had not been paid as was stated in the policy estops the appellant to question the validity of the policy upon the ground that the premiums paid were in fact less than as stated. Wagner v. Ins. Co., 92 Tex. 549, 50 S. W. 569; Ins. Co. v. Ende, 65 Tex. 118; Ins. Co. v. Cummings, 98 Tex. 115, 81 S. W. 705; Ins. Co. v. Smith, 135 S. W. 688.

The second assignment relates to the admission of the testimony of one of the plaintiffs, of a telephone conversation which he had with some one in the office of Chil-dress & Taylor, the agents of defendant, who issued the policy of insurance. It is object-1 ed that the party with whom he had the conversation was not identified. The witness stated that it had been several years since the conversation took place, and he could not definitely state with whom the conversation was had, but it was the party who undertook to write the insurance. Each of the members of the firm denied that they had the conversation, but this was an issue for the jury to pass upon. The objection relates to the weight of the evidence rather than its competency. It was properly overruled. Northern Assurance Company v. Morrison, 162 S. W. 411; Bank v. Bank, 92 S. W. 439; Ins. Co. v. Wallace, 160 S. W. 1130; Ry. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. St. Rep. 861; Wolfe v. Ry. Co., 97 Mo. 473, 11 S. W. 49, 3 L. R. A. 539, 10 Am. St. Rep. 331.

The third assignment is directed to the same matter as the second, the proposition thereunder being disposed of by what has just been said.

The second proposition is to this effect:

“Where plaintiff has been in possession of the policy sued on for more than five months prior to the loss complained of, it is error to refuse to exclude on motion testimony of such plaintiff as to happenings years prior to the date of the policy sued on which vary, contradict, and alter, or tend so to do, the terms of such policy.”

The testimony does not vary, contradict,' or alter the terms of the policy, but was admissible upon the issue of fraud raised by defendant, based upon alleged misrepresentation and concealment as to the Compress Company’s earnings during previous years. These conversations took place several years before, when the first policy was issued and the negotiation between the parties at that time was the basis of the policy then issued and the subsequent renewals thereof.

The fourth assignment complains of the refusal of a peremptory instruction upon the theory that there was a concealment or misrepresentation of facts relative to the earnings and dividends of the company. The findings of the jury are adverse to this contention, and the testimony of Lester, plaintiff, supports their finding, for which reason the instruction was properly refused.

Upon the issues of misrepresentation and concealment, the court charged:

“The policy sued upon in this case provides as follows: ‘This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof.’
“You are instructed that by misrepresentation of a material fact or circumstance, as used in said policy, is meant a statement, written or verbal, or both, concerning such fact or circumstance, which is not true in fact, and by a ‘material fact or circumstance’ is meant a fact or circumstance of such nature as that the agents of defendant would not have issued the policy of insurance if they had known the truth in regard to such fact or circumstances.
“By ‘concealment of any material fact or circumstance’ is meant the intentional withholding from defendant or its agents of the knowledge of such fact or circumstance, with the knowledge or belief upon tbe part of the parties so withholding such knowledge, that the other party would not issue the policy if he had known the facts so concealed.”

Error is assigned to the definition of misrepresentation upon the ground that misrepresentation may be based upon or arise out of acts done as well as statements made, and that the charge should not have confined the question of misrepresentation to statements, written or verbal; and, further, that a material misrepresentation would avoid the policy regardless of the influence of the misrepresentation upon the issuance of the policy.

As to the first criticism, it may be replied that the definition of misrepresentation is correct, so far as it went, and if a more complete one was desired, a special instruction to that effect should have been prepared and requested, and in any event, the omission could in no wise have prejudiced the defendant, for in special issues three and seven the question of misrepresentation based upon plaintiff’s acts was submitted to the jury, and it is quite clear that no injury resulted by failing to mention acts as well as statements in the definition complained of. The error, if any, was one of omission and was not a misdirection, and plaintiff in error seems to have had the full benefit of a submission of the issue of misrepresentation based upon alleged acts, and no prejudicial error is shown. Rule 62a (149 S. W. x).

The second criticism does not rest upon any sound legal principle. If defendants would have issued the policy knowing the truth concerning the matters claimed to have been misrepresented and were not influenced by the representations made, then the falsity thereof would not avoid the contract.

It is immaterial whether the court gave a correct definition of concealment. Any possible error therein is harmless, since the jury expressly found that the defendant’s agents had knowledge of the facts alleged to have been concealed.

The policy ran for one year, from August 7, 1911, to August 7, 1912. The fire occurred February 21, 1912. The net proceeds up to March 13, 1912, from the operation of the Compress for the year of the policy, were $10,480.77. The Compress did no further business during that year, and earned no other money; but there were certain current expenses in the way of current salaries of officers which were paid out of said net proceeds. The court deducted these expenses from the net proceeds from operation, leaving a balance of such net proceeds of about $7,139, which it treated as profits of the Compress Company during that year, and decided that 43 per cent, of that, being the percentage of stock owned by the plaintiffs, should be deducted from the face of the policy, leaving the sum of $7,680.18, for which final judgment was rendered.

The property of the company destroyed by the fire was of the value of $80,000, upon which there was $68,000 insurance.

Plaintiff in error insists that the judgment is excessive; that the measure of recovery should be the average dividend paid on the stock for the three years next preceding the date of the policy (which was 12 per cent.) less the sum earned on the stock during the term of the policy. The policy does not fix this measure of recovery, but stipulates, that;

“The amount for which- this company shall be liable is the difference between the usual dividend of 25 per cent, per annum and the amount less than that sum actually earned or paid, said reduction in earning power being occasioned solely by fire.”

The measure of damage insisted upon would be correct if the policy had fixed the amount of recovery at the difference between the average dividend for the three preceding years and the amount less than that sum actually earned or paid, but it is not so stipulated.

The defendant in error, by cross-assignment, complains of the court’s refusal to enter judgment for $10,750, the face of the policy. They contend that as the property destroyed was valued at $80,000, upon which there was only $68,000 ifisurance, there was therefore a net loss to the company during the year, over and above the said sum of $10,480.77 earned during the year .up to the date of fire. The amount which the court deducted had been actually earned, and under the provisions of the policy was properly taken into consideration in determining the amount of the recovery, to which defendants in error were entitled, and their pro rata of this net earning was properly deducted from the face of the policy.

Affirmed.
      other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: WALTHALL, J. HARPER,* C. J.

text:
    BIRGE-FORBES CO. et al. v. WOLCOTT.

    (No. 441.)
    (Court of Civil Appeals of Texas. El Paso.
    April 29, 1915.
    Rehearing Denied May 20, 1915.)
    1. Trespass to Try Title <&wkey;32 — Petition —Boundaries.
    In trespass to try title, a petition is not demurrable because it does not state that the boundaries set forth are correct, where the description set forth corresponds accurately with that in the title papers, and the objects called for by such description are to be found as set out.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 39-41; Dec. Dig. &wkey;> 32.]
    2. Judgment <&wkey;18 — Variance — Description.
    Where plaintiff in trespass to try title alleges that his lands are described as in his petition, and defendants allege that their lands contiguous to those of plaintiff are not described as plaintiff alleges, it does not follow as a legal conclusion that a judgment thereon for plaintiff would not be supported by allegation and proof.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 34-37; Dec. Dig. <@=>1&]
    3. Estoppel <@=>110 — Pleadings and Proof —Equitable Estoppel.
    Under Rev. St. 1911, art. 7740, providing that under a plea of not guilts' defendants in, trespass to try title may give in evidence any lawful defense except limitations, defendants may, under that plea, prove equitable estoppel.
    [Ed. Note. — Eor other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. <@=3110.]
    4. Pleading <@=3130 — Issues and Proof — Special Pleas.
    It is only where a defendant seeks affirmative relief upon the issues he desires adjudicated that he is required to specially plead his equities.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 276, 283; Dec. Dig. <@=>130.]
    5. Adverse Possession <@=>110 — Pleading— Description.
    In trespass to try title, where defendants claim title by adverse possession to some of the land, and disclaim as to other parts, an answer, failing to describe the lands claimed so they may be identified, is demurrable.
    [Ed. Note. — E'or other cases, see Adverse Possession, Cent. Dig. §§ 636-645; Dec. Dig. <@=> 110.]
    6. New Trial <@=>5 —Grounds —Trespass to Try Title — Error in Taxing Costs.
    Error in taxing costs in trespass to try title is not ground for a new trial, since it may be corrected by motion to retax.
    [Ed. Note. — Eor other cases, see New Trial, Cent. Dig. §§ 21-26; Dee. Dig. <@=>5J
    Harper, C. J., dissenting.
    Aiipeal from District Court, Martin County; S. J. Isaacks, Judge.
    Action by G. W. Wolcott against the Birge-Eorbes Company and others. Erom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Jesse P. Holt, of Sherman, and Morrison & Morrison, of Big Springs, for appellants. J. M. Caldwell, of Midland, for appellee.

       writ of error pending in Supreme Court.

   WALTHALL, J.

This was a suit by appel-lee, G. W. Wolcott, against Birge-Forbes Company and N. B. Birge and Thomas Forbes individually, to recover title and possession of leagues Nos. 253 and 254, Ward county school lands, situated in Martin county, Tex., and to determine and locate the north boundary line of said leagues owned by appellee, and the south boundary line of leagues Nos. 259 and 260, Borden county school land in said Martin county, owned by appellants. Appel-lee described his said leagues by metes and bounds, claiming in his petition that the northern boundary lines of his said leagues and the southern boundary lines of appellants’ said leagues were one and the same. Appellee alleged that the controversy was one of boundary, and that it was sought by the suit to fix, determine, and locate upon the ground the north boundary line of his two leagues, and the south boundary line of appellants’ said two leagues. Appellants’ answer contained: First, general' demurrer. Second, plea of not guilty, except as shall expressly appear otherwise in their answer. Third, denial that they unlawfully entered upon any of the lands described by appellee, or that they ejected him from any of said lands, or that they withheld from him the possession of any part thereof, and denied that appellee’s lands are described as they are in his petition described. Fourth: (1) Averments that appellants own the leagues 259 and 260, Borden county school lands; that they lie north and adjoining the leagues 253 and 254, disclaim any interest in the lands in the boundaries of the Ward county leagues, except as shall hereinafter appear; (2) that the south boundary lines of the two Borden county leagues and the north boundary lines of the Ward county leagues are identical; that many years before the filing of the suit and while appellee was claiming the Ward county leagues, in order to locate the said line, appellee had a survey made of the Ward county leagues, or sufficient survey in order to and for the purpose of locating said line, and did locate the same; built a fence thereon, the purpose of the survey, among other things, being that he might so locate his fence thereon; that the line so defined has long been regarded by him and others, and particularly appellants and those claiming the Borden county school land leagues, as the true line, all the time since acquiesced in by appellee and the owners of the Borden county school land leagues as the true and correct line, those using and occupying same as extending to said fence understanding and believing that said fence marked the true line; (3) that appellants for a valuable consideration bought said Borden county school land leagues in 1910, and that before buying examined them, and were informed and believed the south line thereof was as located by appellee, finding their vendor in possession of said fence, and that appellants bought said leagues because they so believed and, had they known or had reason to believe appellee claimed or would claim otherwise, would not have bought said lands, or would have had the controversy settled before buying, and that appellee is estopped from claiming the line to be elsewhere; (4) “defendants and those under whom they claim and hold title have had the actual, peaceable, and adverse possession of all of said land, and had the same under fence, and have had the actual possession thereof, claiming to own the same, and using, occupying, cultivating, and enjoying the same, more than ten years prior to the institution of this suit. They hold under title and color of title and have been paying taxes thereon during all the said time, and hold under deeds duly registered and under regular c-hain of title or transfer from and under the sovereignty of the soil, and during all the time have claimed to own the same to said fence, and here plead defensively the three, five, and ten year statute of limitation of the state of Texas, in bar of plaintiff’s action.” Appellants’ general demurrer was overruled. Appellee filed supplemental petition, containing general demurrer and exceptions directed to paragraphs 2, 3, and 4 of the fourth paragraph of appellants’ answer. The court sustained the exceptions directed to paragraphs 2, 3, and 4 ’of the fourth paragraph of the answer. The record shows no amendment. Trial was before a jury; verdict was directed by the court.

Appellants’ first assignment of error complains of the action of the court in overruling appellee’s general demurrer to appellee’s petition, because it did not state “that the line and boundaries set out for his leagues 253 and 254, Ward county school land, were true and correct boundaries thereof,” the contention being that appellee, having set forth boundaries for his leagues in controversy, should have declared that they were correct. We are of the opinion that the facts of this case are not such as to invoke the rule claimed and laid down in Roche v. Lovell, 74 Tex. 191, 11 S. W. 1079, and other cases following, in which the description in the title papers are doubtful, or the objects called for therein are not to be found, as set out, either because of original error or of subsequent change, so' that the lands really claimed and sought to be recovered do not at the time of the suit, accurately correspond with the description in the title papers, thereby necessitating the petition to properly and accurately describe the land by the field notes and calls as they really exist, so that it may be readily identified by the calls in the petition, and where, under such conditions, the petition should further allege that the calls given in the petition is the true and correct description of the land owned by the plaintiff, and described in his title deeds, such allegations then become necessary explanations to show identity of the land,.thus differently described, and avoid variance. We think, also, the petition was good as against a general demurrer. The assignment is overruled.

Appellants’ second assignment shows that their answer averred that appellee’s leagues of land were not bounded and described as appellee described them in his petition, and that appellee, having in no w'ay negatived said averment, a judgment rendered in accordance therewith was not supported by allegations and proof. The proposition of appellants under this assignment is that:

‘ “Plaintiff, having set forth boundaries for his leagues in controversy, should have declared that they were correct, and particularly since defendants denied that they were thus correctly described, and since the description so stated for them is different from the originals.”

We do not understand appellants’ position to be that their denial that appellee’s “lands are described as they are in his petition described” is such special matter of defense pleaded as would require a traverse or denial of the statement by appellee, or else be an admitted fact. The plaintiff did not take the view that there was such conflict in the matter of description of the leagues, between that given in the original field notes and used in the petition and the land as found on the ground by It. E. Estes, as to justify the statement that the field notes used in the conveyance were not correct. If our view as expressed in disposing of the first assignment is correct, the appellee having alleged that the lands he owned were described as in his petition, and the appellants having alleged that their lands were not bounded and described as appellee had alleged, an issue of fact was formed upon which proof could be offered. We think it would not follow as a legal conclusion that a judgment rendered under that state of the pleadings would necessarily not be supported by allegations and proof, as claimed in the assignment. The appellee introduced a great many field notes of other surveys, which, in the absence of an identified map or plat to which they refer, showing the relative position of the other surveys to the lands sued for, give us no idea as to their application in the evidence in tracing out and identifying the lands in controversy, as they are found on the ground. There is a meagerness of statement in the evidence of the witness Estes as to what field notes of leagues 253 and 254 he used in running them out and locating them on the ground, and while there is some difference in the calls given by the witness in his survey in running the course and distance from those used in the pleadings, we cannot say that the two are so variant that the judgment is not supported by the proof as to the description of the leagues. The evidence of the witness, on pages 65 to 67, both inclusive, of the statement of facts, too lengthy to quote hero, in the survey he made, identified the objects called for in the description of the lands in the pleadings, and we think amply sustains the judgment. The assignment is overruled.

Appellants’ third assignment is as follows:

“The court erred in sustaining demurrers urged by plaintiff in his first supplemental petition, or exceptions directed against defensive pleas by defendants in tlieir first amended original answer, as to established and agreed boundaries, acquiescence by plaintiff in boundary, and estoppels and pleas of three, five, and ten year statute of limitation, said defensive pleas being such as defendants were entitled to employ in their defense.”

This assignment is followed by four propositions and statements under each, singling out and explaining the several matters to which they refer. The first proijosition refers to appellants’ plea of estoppel; the second, third, and fourth propositions refer, respectively, to their pleas of limitation of three, five, and ten years.

To appellants’ plea of estoppel the ap-pellee presented a demurrer, which was sustained by the court, and the appellants offered no evidence to sustain their plea. We are of the opinion that the action of the court in sustaining the demurrer to the plea of estoppel pleaded as defensive matter in trespass to try title could not constitute reversible error. There is no question that in this state you may, under the plea of “not guilty,” in trespass to try title prove any equitable estoppel, because article 7740, Revised Civil Statutes of Texas of 1911, provides that:

“Under such plea of ‘not guilty,’ the defendant may give in evidence any lawful defense to the action, except the defense of limitation, which shall be specially pleaded.”

Any defense which could, under the ordinary rules of pleading, be set up by general or special denial, or in confession and avoidance, or in estoppel, may be urged upon the plea of “not guilty,” except limitation or improvements in good faith. No evidence having been offered constituting estoppel, the presumption follows that none existed.

It is only where a defendant seeks affirmative relief upon the issues he desires adjudicated that he is required to specially plead his equities. In this case the defendants asked no affirmative relief whatever. Johnson v. Flint, 75 Tex. 379, 12 S. W. 1120; Kauffman v. Brown, 83 Tex. 41, 18 S. W. 425; Scarbrough v. Alcorn, 74 Tex. 358, 12 S. W. 72; Mayer v. Ramsey, 46 Tex. 375; Towne’s Texas Pleading (2d Ed.) pp. 622, 623.

Appellants’ second, third, and fourth propositions under their third assignment present a more serious question. To appellants’ pleas of limitation of three, five, and ten years, the appellee pleaded:

“Plaintiff specially excepts to paragraph 4 of the fourth paragraph of the said answer because it appears therefrom that the defendants are claiming more by adverse possession than is allowed by the statute to be so claimed, and because defendants set out no boundaries of the land so claimed by them by limitation, and of this exception he prays the judgment of the court.”

Their answer does not claim more land by possession under any of the pleas than is allowed by the statute. It disclaims as to all land south of the fence, and makes claim to all lands north of the fence, but does not state the acreage, nor give such description of the land north of the fence that the acreage can be estimated, nor can the acreage north of the fence be estimated by the appellee’s pleading. We are of the opinion, however, that, to claim any of the lands north of the fence under any of the statutes of limitation, it was necessary that the answer in some place describe the lands claimed, so that it could be identified by the evidence when offered and applied to the lands described in the deeds, and identified as the lands excepted out of his disclaimer, and to be eliminated in the judgment from lands appellee might recover, or of which he should not be ejected or dispossessed. The necessity of such description might not follow where a defendant claims title by prescription to all of the lands sued for, or where the plaintiff in his pleading described the lands of which he has been dispossessed. It would be necessary under their pleas of three and five years’ limitation for them to show that their prescription was under a deed that embraced the lanii in controversy. There is a complete failure to identify in any way the land excepted from the disclaimer and claimed by appellants, and we cannot say that the trial court was in error in sustaining the demurrer to the answer. Towne’s Texas Pleading (2d Ed.) p. 626; Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209; Lake v. Earnest, 53 Tex. Civ. App. 555, 116 S. W. 865; Bean v. Whitney, 25 Tex. Civ. App. 72, 60 S. W. 782; Runkle v. Smith, 52 Tex. Civ. App. 186, 114 S. W. 805. The assignment is overruled.

The fourth assignment complains of permitting the witness Estes to testify that he had run out the north lines of blocks 34, 35, and 36, Texas & Pacific Railway Company reserve, and state what he found along said lines and how and where he found the northwest corner of said block 36. The witness testified, from his actual work on the ground as a practical surveyor, to just what he saw and found in running out the lines. The evidence complained of is too lengthy to reproduce here. If the witness found natural or artificial objects called for in the original field notes, and if they aided him in locating the lands in dispute, the evidence was certainly admissible. It was largely a matter of discretion with the court to admit his statements. The witness speaks of and refers to a map before him. The map is not made a part of the record, and we do not know the relative positions of the points referred to. We cannot say that undue weight was given to the testimony of the witness. The assignment is overruled.

Appellants, in their fifth assignment, claim error in the charge directing the verdict for appellee, claiming a part of the evidence to be inconsistent with other testimony introduced and all contradictory to the original field notes of appellants’ leagues, showing they are westward from the Texas & Pacific Railway Company’s reserve lands. Appellee’s contention is that the testimony showing that the Texas & Pacific Railway Company surveys are senior to the leagues in controversy; that the leagues tie to and are west-, ward from the Texas & Pacific; that the boundaries of these leagues in the petition place them in conflict with the Texas & Pa-, cific and differ from the field notes for his leagues; his allegations and proof showing such conflict — are inconsistent with the fact that the leagues are entirely westward from, and, being junior to, cannot lap upon, Texas & Pacific surveys, and the judgment is likewise inconsistent with the facts as to the real location. We have read the field notes referred to by appellants in their statements under this and other assignments, claiming a conflict between some of them and the description of these leagues given in the petition, but, not having the map used on the trial showing the position of the surveys called for in the field notes, we have not been able to appreciate the strength of appellants’ position that there is such inconsistency in the evidence as to the location of these leagues and the conflict with the Tesas & Pacific Railway Company, surveys westward therefrom and to which they tie, so as to say that the judgment of the court is not supported by the preponderance of the evidence. The evidence of the surveyor Estes in detailing the work he did in tracing out the lines of these surveys, beginning on page 65 of the statement of facts, seem to us to sufficiently identify their location on the ground as alleged in the petition. The appellants, in the third subdivision of their answer, denied that the appellee’s lands are properly described in their petition, but offered no proof on that issue. The case being strictly a boundary suit and the appellants having disclaimed as to “any interest in the lands in the boundaries of the Ward county leagues except as shall hereinafter appear,” and- no description of the lands excepted out of their disclaimer thereafter appearing, either by pleading or proof, we are of the opinion that the disclaimer might be applied to all of the lands sued for. The assignment is overruled. AVhat has been said in disposing of the other assignments we think applies to appellants’ ■sixth, seventh, eighth, and ninth assignments, and they are each overruled.

In the tenth assignment the appellants complain that the judgment taxes the costs against them. If it was error to tax the costs against appellants, it would not have been reason for granting a new trial, but should have been corrected by a motion to retax the costs. Lumpkin v. Woods et al., 135 S. W. 1139. The assignment is overruled.

Affirmed.

HARPER,* C. J.

(dissenting). The petition in this case contains: First, formal pleading in trespass to try title; and, second, allegation that it is a boundary suit, in that it is sought thereby to fix, determine, and locate upon the ground the north boundary lines of the said two leagues 253 and 254 and the south boundary line of 259 and 260, Borden county school lands.

The tenth assignment is that the judgment is without facts to support it, because there is no evidence that the defendant had any of the lands claimed by plaintiff in his possession. I have searched the statement of facts with utmost care, and fail to find any evidence that any part of the leagues as de-’ scribed in plaintiff’s petition is in the possession of the defendant.

The express denial by defendant that the lands owned by plaintiff are described as they are in the petition described, and the denial that he (defendant) had possession of any lands owned by plaintiff, put the burden upon plaintiff to prove that, as originally located and patented, his survey in fact included the land inclosed by the defendant. Hill v. Collier, 135 S. W. 1084.

If I understand the opinion, it holds that the defendant disclaimed as to all the land sued for, and therefore plaintiff was relieved of the proof of actual location upon the ground. It is clearly not susceptible of such construction, but shows that defendant had possession of leagues Nos. 259 and 260 and down to a fence which the plaintiff himself had located on the ground according to a former survey. The portion of defendant’s answer which definitely fixed the line to which he claims title, and which is alleged by him to be the true boundary line, and which definitely fixed the portion to which his disclaimer applied, was excluded upon demurrer; thereby denied the right to introduce evidence in support of this contention. When a disclaimer makes an exception which is imperfect in its description, but which, taken in connection with the petition, can be understood to apply to a definite tract, the court will so hold and regard the issue of not guilty as applying to such part so designated. McBee v. Johnson, 45 Tex. 637. The effect of the holding in the majority opinion is that the plaintiff can describe his entire leagues upon a declaration that it is a boundary suit, not sue for the disputed strip, by metes and bounds, thereby compelling the defendant to make up the distinct issue by definitely describing the portion of the whole which he claims. This is not in accord with the rules of pleading as I understand them. The defendant, by his answer in this case, said clearly and definitely to the plaintiff:

“You have not correctly described your lands in your petition. As described, I claim all that north of a given point, because it lies in the true boundaries of my land, to wit, leagues 259 and 260, Borden county school lands.”

Has further said to the plaintiff:

“Your land lies south of mine, and the true boundary line thereof is the one fixed by your former survey, and by the fence you built. As to all the lands south of that line indicated by your fence, I disclaim, because it is within the true boundaries of your leagues.”

If this disclaimer was not sufficient, because it did not clearly and definitely describe the lands claimed and the lands to which he laid no claim, plaintiff should have excepted to it for that reason, thereby giving defendant a chance to amend. Since he went to trial without doing so, he should not now be permitted to say that it was not definite enough, but is a disclaimer as to all the lands sued for. Herring v. Swain, 84 Tex. 523, 19 S. W. 774.

The defendant’s answer is sufficient to place the burden upon the plaintiff to prove; First, that the description incorporated in his petition is the true description oí his lands; second, to prove that according to the true description of plaintiff’s lands, defendants have a certain portion of it in their possession; third, to fix definitely the boundary line between the lands by the parties; and, fourth, if, when run out on the ground according to the true description, any of it was north of the fence, or included in the lines of 259 and 260, then the further burden was upon the plaintiff to establish his title to such portion. As I view the record, none of the above have any evidence to establish them, and until the plaintiff made a prima facie ease, the defendants were not required to offer any evidence. The court therefore erred in its peremptory instruction to the jury. .

If the disclaimer was broad enough to permit the plaintiff to recover without evidence, then we should reform the judgment here and tax the costs of the trial court to plaintiff, as requested in tenth assignment. Lumpkin v. Woods, 135 S. W. 1139.

The plaintiff not having met the burden of proof as indicated above, the real question in the case, to wit, the true location of the boundary line, has not been determined. Therefore the case should be reversed and remanded.

I therefore enter my dissent.
      <g^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: LANE, J.

text:
    BIRD et al. v. PALMETTO LUMBER CO. et al.
    (No. 6801.)
    (Court of Civil Appeals of Texas. Galveston.
    April 22, 1915.
    Rehearing Denied May 20, 1915.)
    1. Divorce <@=^>255 — Decree — Award of Property.
    The court having jurisdiction of the parties and subject-matter, the part of the decree, in a divorce suit, adjudging to the wife, with the consent of the husband, the community property, acted on by the parties for many years, es-tops him and his subsequent grantees.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 722-724; Dec. Dig. <®=>255.]
    2. Limitation of Actions <@=^>19 — Attack of Jud&ment.
    An attack on a judgment, rendered with jurisdiction, and known of by the parties, is barred by the four years’ statute.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73-85; Dec. Dig. 19.]
    Appeal from District Court, Newton County ; A. E. Davis, Judge.
    Action by Emma Bird and another against the Palmetto Lumber Company and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    V. A. Collins, of Beaumont, and Joe W. Thomas, of Woodville, for appellants. Wight-man & Hancock, of Newton, Hightower, Or-gain & Butler, of Beaumont, and Dean, Humphrey & Powell and John E. Kilgore, all of Huntsville, for appellees.
   LANE, J.

Appellants, Mrs. Emma Bird, joined herein pro forma by her husband, E. D. Bird, brought this suit against the Palmetto Lumber Company and Jesse Brack on the 23d day of October, 1911 to recover title to the 217 acres of land described in their petition. Mrs. Sallie E. Gibbs, George W. Carroll, and J. P. McMahon were later brought into the suit as defendants, Mrs. Gibbs as assignee of the defendant Palmetto Lumber Company, and Carroll and McMahon as warrantors of title to said land only. Appellant Mrs. Emma Bird claims title to said land under a deed executed and delivered by George H. Bean to her on the 23d day of November, 1909. Appellees Jesse Brack and Mrs. Gibbs claim under and through deeds from Mary E. Colville, deceased, formerly Mary E, Bean, wife of George H. Bean, and her assigns.

The basis of the claims of the appellants and appellees, respectively, may be more specifically and fully stated as follows: George H. Bean married Mary E. Colville in 1877. During this marriage Emma, a daughter, appellant in this cause, was horn to them. On the 3d day of October 1891, Mary E. Bean filed a suit in the district court of Newton county for a divorce from George H. Bean. In her petition she alleged, among other things, that Emma, the daughter, was 12 years of age, and that George H. Bean and herself owned in common the 217 acres of land involved in this suit. In her prayer she asked that the care, custody, and maintenance of the said daughter, Emma, be decreed to her or to George Bean, as the court might think for the best interest of the said Emma; that the title to the 217 acres of land be vested in her; that her maiden name, “Mary E. Colville,” be restored to her; and for general relief. On the same date, October 3, 1911, the court entered judgment in said cause granting the divorce and restoring to plaintiff her maiden name as prayed for, decreeing the care and custody of the daughter, Emma, to defendant George H. Bean, and the title to the 217 acres of land to plaintiff Mary E. Colville. Mary E. Colville, immediately or shortly after said judgment was rendered, was permitted to and did take possession of the land in question and held the same until she sold it to Marsene Johnson in October, 1896. The land was sold by Johnson and passed by various deeds from him and his assigns to the appellees. Mrs. Colville, former wife of George Bean, died in’ 1900. On the 23d day of November, 1909, more than 18 years after the divorce decree, and 9 years after the death of his former wife, George Bean gave his daughter, Emma Bird, a deed to the land in question. Bean paid no taxes on said land from 1891 to date of suit, nor made any open claim to same after Mary Colville took possession in 1891 until this suit was filed in October 1911.

Appellants insist that as the land in question is shown by the petition in the divorce suit to have been the community property of George Bean and wife, Mary E. Bean, the district court had no authority by a decree of court to divest George Bean of his interest in said land; that while article 4634, Revised Statutes of 1911, provides that the court pronouncing a decree of divorce from the bonds of matrimony shall decree and order a division of the community estate as to the court seems right to each party, it also provides that such provision shall not be construed to compel either party to divest himself or herself of the title to real estate; that, as the petition of plaintiff in said divorce suit alleged that said land was the community property of George H. Bean and Mary E. Bean, the judgment entered in said suit was void, and those purchasing under Mary Bean (Mary Colville) were charged with notice that one-half of said land was the property of George H. Bean, and that, notwithstanding said decree in which the court vested title to said land in Mary Colville, one-half of said land still remained the property of George H. Bean, and that by his deed of 23d of November, 1909, title thereto passed to appellant Mrs. Emma Bird.

Appellees insist that the real issue in said divorce suit was the care and custody of the daughter, Emma; that pending this controversy over said custody and care of said daughter, both parties agreed that, for the purpose of settling such controversy, the court might enter judgment decreeing the care and custody of said daughter to said George Bean, and that the whole of the land should be decreed to the plaintiff Mary E. Bean (Mary Colville), and therefore the decree of the court vesting title to said land in Mary Colville was valid and passed said title to said Mary Colville, and that, by reason of said consent and agreement of George H. Bean, said decree should be entered for a valuable consideration, to wit, the care and custody of the daughter, Emma, and by reason of the fact that he permitted Mary Col-ville to take possession of said land under said decree, and to remain in possession until she sold the same to Marsene Johnson in October, 1896, and permitted Johnson and those claiming under him to remain in possession of the same until November 23, 1909, without asserting any claim thereto, he and those claiming under him were and are es-topped from asserting title thereto as against those holding under Mary Colville.

Appellees in their answer in this case asserted title in themselves by virtue of proper conveyances and by limitation.

The case was tried before the court without a jury, and judgment was rendered and entered for appellees. Upon proper request the trial court, among other things unnecessary to copy herein, found and filed the following :

“Findings of Fact
“(4) I find that the said Geo. H. Bean and Mary E. Bean were separated more than three years prior to October 8, 1891, on which date a decree of divorce was entered in the district court of Newton county in cause No. 484, styled Mary E. Bean v. George H. Bean, and in which decree the following facts are recited: (a) That the parties plaintiff and defendant appeared in person and by their attorneys; (b) that the matters in controversy, as well of fact as of law, were submitted to the court; (c) that the court heard the evidence and argument of counsel; (d) and was of the opinion that the law and the facts were for the plaintiff, and that the material allegations in the plaintiff’s petition were true; (e) it was decreed that the bonds of matrimony existing between the plaintiff and defendant be dissolved; (f) it was further decreed by the court that all the right, title, and interest which the defendant owned in community with the plaintiff in and to the land described in plaintiff’s petition be divested out of the defendant and vested in the plaintiff, and that the plaintiff should thereafter own the whole of said land in severalty to herself for her own separate use in fee simple; (g) it was further decreed by the court that the care and custody of the minor child of the plaintiff and defendant be awarded to the defendant; (h) the plaintiff’s name was changed from Mary E. Bean to Mary E. Col-ville; and (i) the costs were adjudged against the defendant.
“(5) I find that said decree in the case of Bean v. Bean, in so far as it compelled the defendant to divest himself of title to real estate, was void and subject to be set aside in this action, except for the fact, as hereinafter found, that said judgment was agreed to by the parties; and the defendant therein and the plaintiffs herein are barred by the statutes of limitation, and they are held to be estopped from attacking said judgment after the lapse of so many years after the rendition thereof. [The italics in this paragraph are ours.]
“(6) I find from the evidence that the judgment in cause No. 484 (Bean v. Bean), so far as the same disposed of the custody of the min- or child and the lands described therein, was entered by and with the express knowledge and agreement of the parties plaintiff and defendant thereto.
“(7) I further find from the evidence that there was no fraud practiced upon the defendant in the matter of procuring or entering the judgment in said divorce proceedings, and that the defendant expressly agreed that, in consideration that the care and custody of the min- or child be awarded to him, the lands in controversy might be allotted to and vested in the plaintiff, in her own right in fee simple.
“(8) I further find that the defendant in said cause No. 484, having knowledge of the terms of said judgment, acquiesced in and ratified said judgment and took no steps to repudiate the same during the lifetime of the said Mary E. Bean (Mary E. Colville), who died on or about September 8, '1900; and the said George H. Bean, and the plaintiffs herein claiming under him, acquiesced in and ratified said judgment and took no steps to repudiate the same after the death of Mary E. Bean, until the execution of a deed by the said George H. Bean to the plaintiff Emma Bird on the -- day of December, 1909, and the institution of this suit by the plaintiffs on the 23d day of October, 1911. * * *
“(10) I further find that the plaintiffs are barred from attacking the judgment in cause No. 484 for fraud under the statute of limitations of four years, and are barred from making a direct attack on said judgment under the statute of limitations of ten years, and that they are now estopped to deny the validity of said judgment.
“(11) I further find that, upon the rendition of the decree of divorce in cause No. 484 (Bean v. Bean), the said Mary E. Colville went into actual possession of the premises in controversy and remained in possession in person for some time, and thereafter kept possession of said premises by tenant until she sold and conveyed the same to Marsene Johnson by deed bearing date October 2, 1896. I further find that the said Marsene Johnson held actual possession of said premises by tenant during all of the time the same were owned by him, except two or three intervals which elapsed after said premises were vacated by one or more tenants, and before other tenants moved in; and that the defendant Marsene Johnson conveyed said premises to J. P. McMahon, Sr., by deed bearing date July 12, 1906, and that the said J. P. McMahon, Sr., held actual possession of the premises in controversy until he sold and conveyed the 160 acres thereof claimed by the defendant Mrs. Sallie E. Gibbs to George W. Carroll, by deed dated July 1, 1907:
“(12) I further find that there has been sufficient actual possession of the 57 acres of the land in controversy owned and claimed by the defendant Jesse Brack to establish title in the said defendant under the statute of limitations of ten years. * * *
“(14) I find that J. P. McMahon, Sr., conveyed that part of the premises in controversy herein claimed by the defendant Mrs. Sallie E. Gibbs to George W. Carroll by deed with covenants of general warranty, bearing date July 1, 1907, for the consideration of $2,240, paid and secured to be paid, and the deferred payments were shown to have been made by the defendant Mrs. Sallie E. Gibbs to the said J. P. McMahon.
“(15) I further find that the said George W. Carroll conveyed that part of the premises in, controversy claimed by the defendant Mrs. Sallie E. Gibbs to Palmetto Lumber Company by deed bearing date July 20, 1907, with covenants of general warranty, and that the consideration for the 160 acres conveyed therein of the land in controversy herein and claimed by the defendant Mrs. Sallie E. Gibbs was the sum of, to wit, $3,125.
“Conclusions of Law.
“Erom the foregoing findings of fact, I conclude that the law is with the defendants.”

By appellants’ first assignment of error it is in effect insisted that, it being admitted that the land in question was formerly the common property of George EL Bean and wife, the burden was upon appellees to show that the one-half interest of George Bean therein legally passed to appellees; that the only evidence tending to show this fact was the judgment rendered in the divorce suit of Bean v. Bean ; and that this proof alone was insufficient for that purpose, and therefore the court erred in not rendering judgment for appellants.

The undisputed evidence shows that the judgment in said divorce suit decreed the child, Emma, to George H. Bean and the land in question to Mary E Bean (Colville); that George H. Bean was present when the judgment was entered in the divorce suit; that he waived service in writing, and filed answer therein, and, after said judgment was entered, he acquiesced therein, took charge of the child, Emma, by virtue of such judgment, and kept her until she was grown, and until after the death of her mother; that Mrs. Mary Bean (Colville) took charge of the land in question under and by virtue of said judgment, and that she and her assigns had held peaceable possession thereof for 18 years, and that during all this time George H. Bean made no claim thereto, and that he paid no taxes thereon. There was also sufficient evidence to warrant the trial court in finding that George H. Bean had agreed that such judgment should be entered by the court trying said divorce suit, and there was also ample evidence to justify the court in finding that Mrs. Mary Bean (Col-ville) and Qiose claiming under her had held continuous peaceable and adverse possession of said land for more than 10 years prior to appellants’ suit in this cause, and that appel-lees now hold title to the same under the 10 years’ statute of limitation.

The court, in his eleventh finding of fact set out herein, finds that Mrs. Mary E. Col-ville went into actual possession of the land in question in 1891, and that she and those holding under her have from that date held actual possession of same to July 1, 1907. No exception was reserved to such finding, nor is there any assignment of error relative thereto in appellants’ brief.

In the case of Connellee v. Werenskiold, 87 S. W. 747, it is said:

“Appellee alleged that this decree was agreed to by appellant, and had 'been acted upon by him since its entry by the payment of a part of the rents due appellee into said bank for her, and the uncontroverted testimony in the record supports these allegations. * * * So, if appellant consented to that part of the decree * * * obligating him to pay the amounts decreed to appellee in Dallas county, it makes no difference whether the pleadings alleged or -prayed that such obligation be embraced in the decree. That part of the decree being based on his consent thereto, he would-be bound thereby.”

The proper rule in such a case as the one under consideration is aptly stated by Mr. Freeman in his work on - Judgments, § 135, as follows:

“Jurisdiction being obtained over the person and over the subject-matter, no error or irregularity in its exercise can make the judgment void. The authority to decide being shown, it cannot be divested by being improperly or incorrectly employed. Error of decision may be corrected, but not so as to reach those who in good faith relied upon its correctness.”

See Seguin v. Mavrick, 24 Tex. 531, 76 Am. Dec. 117.

George H. Bean having consented to the decree adjudging the land in question to Mary Colville, and having acted thereunder as hereinbefore stated for 18 years, and for 9 years after the death of Ms divorced wife, Mrs. Bird, who claims under Ms deed, cannot attack said decree so as to reach appellees, who in good faith relied upon the same.

The court trying the cause of Bean v. Bean had jurisdiction over the parties and of the subject-matter of that suit. George H. Bean had submitted to such jurisdiction. There was evidence tending to prove that he agreed to the decree rendered therein, accepted benefits thereunder, and permitted Mrs. Bean, the other party to the suit, and those holding under her, to rely upon the correctness of same until the death of Mrs. Bean, and for many years thereafter, without a word of protest from him. Such judgment is not void. George Bean and those claiming the land in question under his deed are now es-topped and precluded from asserting the invalidity of said judgment. Connellee v. Werenskiold, 87 S. W. 747; Patrucio v. Selkirk, 160 S. W. 635; Weaver v. Vandervanter, 84 Tex. 691, 19 S. W. 889; Clayton v. Hurt, 88 Tex. 598, 600, 32 S. W. 876; Freeman on Judgments, § 135.

The judgment in the case of Bean v. Bean was rendered in 1891. No action was taken by George Bean or any one for him to have it vacated until this suit was instituted in 1911, 20 years after its rendition. Any attack made upon said judgment at this late date is barred by the 4 years’ statute of limitation. See Foust v. Warren, 72 S. W. 405; Watson v. Railway Co., 73 S. W. 830.

We think the judgment rendered by the trial court in this cause is sustained: First, by ample proof that appellees hold the superior legal title to the land in question; and, second, by ample proof that appellees and those under whom they claim and hold had held peaceable and adverse possession of said land for more than 10 years before this suit was filed, and therefore we overrule appellants’ first assignment of error.

Appellants’ second, third, fourth, and fifth assignments of error found in their brief are as follows:

Second. “The court erred to the prejudice of plaintiff in its findings of facts, eighth paragraph thereof, to the effect that plaintiffs and George H. Bean acquiesced in and ratified said judgment in the case of Bean v. Bean, because there is no testimony showing any ratification and acquiescence in said judgment that would bar this cause of action or in any manner es-top or affect plaintiffs’ suit.”
Third. “Because the court erred in rendering a judgment for defendants herein and not rendering judgment for plaintiff, for the evidence showed conclusively that the judgment in the cause of Bean v. Bean, entered in a divorce suit attempting to divest George H. Bean, defendant, of his title, was void, and therefore such void judgment was insufficient as a muniment of title. Therefore the defendant, having failed to establish a limitation title, could not prevail against the title of plaintiffs, who showed a good title in themselves.”
Fourth. “Because the court erred in rendering judgment for defendants herein and not rendering said judgment for plaintiffs in that there was a missing link in the defendants’ title, they claiming through the void judgment in cause of Bean v. Bean, rendered in a divorce suit, having no pleadings upon which to base same, and the prayer to the pleadings, if sufficient, which plaintiffs deny was good, formed no part of the pleadings, and was inconsistent to the alleged facts contained therein, and the prayer could not in law make the invalid judgment in a divorce suit a valid one.”
Fifth. “The court erred to the prejudice of the plaintiffs in its finding of facts, twelfth paragraph thereof, to the effect that there had been sufficient actual possession of the 57 acres of land in controversy, owned and claimed by the defendant Jesse Brack to establish title by 10 years’ statute of limitation, because the actual possession proven is not sufficient to mature title under the 10 years’ limitation statute, and the evidence is not sufficient to show a continuous, unbroken, adverse possession and use for 10 years, period required by law.”

What has been already said fully disposes of the complaints presented by the foregoing assignments 2, 3, 4, and 5, and they and each of them are overruled.

Having considered and disposed of all of appellants’ assignments of error, and finding no error in the trial of this cause in the court below, the judgment there rendered is in all things affirmed.

Affirmed.
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author: LEVY, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. WOLDERT GROCER CO.
    (No. 1443.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 5, 1915.
    Rehearing Denied May 20, 1915.)
    Trial &wkey;>169 — Direction op Verdict — Right oe Defendant.
    Where plaintiff, suing for damage to fruit in transit, alleged defendant’s negligence both in failing to furnish a suitable car and in failing to ice in transit, but the failure to furnish a proper car was abandoned at the trial, by failing to give any evidence thereon and the court’s withdrawal of that issue, defendant was not entitled to a directed verdict on the ground that its plea of plaintiff’s contributory negligence in loading into a known unsuitable car stood confessed by failure to traverse; the issue of negligent failure to ice in transit being supported by evidence sufficient to go to the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. &wkey;169J
    Appeal from District Court, Smith County; Barney Briggs, Judge.
    Action by the Woldert Grocer Company against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    The action is by appellee to recover damages sustained by five cars of peaches by reason of alleged negligence in transportation. The negligence alleged is the failure to furnish suitable and properly equipped cars in which to transport the peaches, and the failure to sufficiently ice and refrigerate the peaches while in transit. The defendant traversed the allegations of the petition, and as a defense averred that the damage to the peaches, if any, was the result of the negligence of plaintiff’s agents and employés, and “defendant further and specially answers that the plaintiff was guilty of contributory negligence in loading the fruit into the cars, knowing that each ear was unsuitable and also an insufficient ear, and if the same was alleged by plaintiff, which this defendant denies, the plaintiff could not recover.” The verdict of the jury was in favor of appellee. Appellee delivered to appellant for shipment two cars of crated peaches at Elberta switch, and three cars at Lindale, Tex. According to the through hill of lading issued, appellee was the shipper, and two of the cars were consigned to shipper’s order, with destination Saginaw, Mich., and two to shipper’s order, with destination Canton, Ohio, and one car to appellee as consignee, with destination St. Louis, Mo. According to the witnesses for appellee, the peaches when loaded into the cars were in good and sound shipping and merchantable condition. A witness for appellant testified that the peaches at time of shipment were in an overripe state for shipment. When the peaches reached their destination they were in a seriously damaged condition, to the extent and value found by the Jury. There is evidence that failure to sufficiently ice the cars will lower the state of refrigeration and damage peaches. There is evidence that the cars were iced at time of shipment, but there is no evidence to show any re-icing on the Journey, or any inspection of the cars to ascertain the state of or sufficiency of the refrigeration on the trip. The shipments were made in the months of July and August. The evidence goes to show that the cars themselves, as instrumentalities, were proper and suitable for shipping fruit at the time of shipment, and there is no evidence to the contrary. The evidence warrants the finding, as comprehended in the verdict of the Jury, that at the time the peaches were loaded for shipment they were in good and sound shipping and merchantable condition, and that the damages to the extent found by the Jury were occasioned by and proximately due to negligent failure to sufficiently ice and to keep to a sufficient state of refrigeration the peaches while in transit and before delivery by the carrier.
    Fitzgerald, Butler & Bulloch, of Tyler, and Morris & Sims, of Palestine, for appellant. Price & Beaird, of Tyler, for appellee.
   LEVY, J.

(after stating the facts as above). The overruling by the court of the special exceptions to the petition, as complained of in the various assignments of error Nos. 1 to 23, inclusive, do not, it is thought, afford ground for reversible error, and therefore the assignments of error are overruled.

It is thought that the twenty-fifth assignment of error should be overruled, as constituting no injurious error.

The twenty-sixth assignment of error is predicated upon the refusal of the court to give a requested peremptory instruction. It is contended by appellant that it pleaded contributory negligence of appellee in loading peaches in an insufficient and unsuitable car for shipping fruit, knowing it was such at the time, and that appellee failed to traverse the plea, and under the statute the fact was confessed. There was sufficient evidence as to negligence in respect to icing the cars and keeping up a proper state of refrigeration in transit to require the court to submit that phase of the case to the jury, as was done by the court. And while appellee pleaded as a further ground of negligence the failure to furnish in the first instance cars that were sufficient and suitable to ship fruit in, meaning as instrumentalities for shipment of fruit, it offered no evidence in support of, and did not rely for recovery on, this particular allegation; but, on the contrary, the evidence showed that the cars were proper and suitable in themselves for the purpose of shipping fruit, and the court’s charge did not authorize a recovery on the ground of the insufficiency of the car for such purpose. Hence that allegation as a ground for recovery was eliminated, both because there was evidence only that the car was in itself sufficient and suitable for shipping fruit and a recovery was not authorized by the charge on that ground. Therefore appellant’s contention that appellee could not recover at all must be overruled. The admission that one ground of alleged negligence, if existing under the facts, would bar recovery, would not operate to deprive appellee of recovery upon another ground alleged and proved. The nonrecovery upon the admitted ground, is inconsistent with the admission.

By the twenty-seventh assignment of error it is contended that the second paragraph of the court’s charge submitted an issue for recovery by appellee not made by the evidence. It is believed that the language of the charge, fairly interpreted, only authorized a recovery for negligent failure to inspect the cars in relation to the sufficiency of the icing and state of refrigeration in transit. The jury were required to find whether or not there was “a failure on the part of the railroad company to use ordinary care to inspect said ears and to keep said fruit properly iced and refrigerated while in transit,” and there was evidence making this issue.

Appellee objects to the consideration of the twenty-ninth assignment, as not being in compliance with the rules 26 and 29 (142 S. W. xii). The objection, it is thought, should he sustained.

The judgment is affirmed.
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