text:
    WESTERN UNION TELEGRAPH CO. v. JOHNSON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 20, 1913.
    Rehearing Denied Feb. 1, 1914.)
    1. Telegraphs and Telephones (§ ■ 38) — Negligence in Delivering Message — Right op Action — Knowledge.
    Where a message sent by his brother on January 30th, to the effect that if he wanted to see his father alive, he should come at once, was not received by plaintiff until Pebruary 3d, when he sent a message of inquiry alleged to have been delayed in delivery, there was a necessary inference that he was then in doubt whether an immediate trip home would enable him to see his father alive or even to attend his funeral, and the rule that a cause of action will not lie for negligence in failing to promptly deliver a message when the information contained therein has already been acquired from other sources did not apply.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.]
    2. Telegraphs and Telephones (§ 38) — Action for Delay in Delivery — Mental Anguish — Notice.
    A message to the plaintiff, Lester J., from his brother to the effect that, if he wished to see his father alive, he should come at once, and a reply message, inquiring if plaintiff’s father was still alive, and stating that “Lester” would be back that night, aside from oral information by the first sender, was sufficient to notify th$ company that the reply message was for the benefit of “Lester”; that the father of the first sender was seriously ill; that “Lester” named therein was related to him, and would probably desire to visit him if informed that he was still alive; and that mental anguish might probably result from, negligence in delivering the reply.
    [Ed. Note. — Por other cases, see Telegraphs and ^Telephones, Cent. Dig. § 33; Dec. Dig. ]
    3. Appeal and Error (§ 219) — Grounds op Review — Objection to Finding,
    Where a finding that plaintiff in an action for negligence in delivering a telegram was not guilty of contributory negligence was not challenged, the contention that judgment for him was erroneous, because he was guilty of contributory negligence, would be overruled.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317-1320, 1322, 1323; Dec. Dig. § 219.]
    4. Telegraphs and Telephones (§ 38) — Operation — Reasonable Oppice Hours.
    It is permissible for a telegraph company to establish reasonable office hours in certain localities, so that no action will lie for failure to receive and deliver messages during other hours; the reasonableness of such office hours depending upon the amount of business during other hours and the expense of keeping the office open.
    [Ed. Note. — Por other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.]
    5. Appeal and Error (§ 931) — Review—Implied Finding op Pact.
    Where the trial court found that a telegraph company regularly closed its office from 8 p. m. Saturday until 10 a. m. the following morning, yet did not find that such closing hours were reasonable, and there was no statement of facts in the record, the Court of Civil Appeals could not imply a further finding that such office hours were reasonable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dec. Dig. § 931.]
    6. Appeal and Error (§ 1031) — Statement op Pacts — Eppect.
    In the absence of a statement of facts, the Court of Civil Appeals was unable to conclude that error, if any, in admitting certain evidence was harmful.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.]
    7. Telegraphs and Telephones (§ 66) — Action por Damages — Evidence—Contributory Negligence.
    Plaintiff’s evidence that he was informed by a third person that a message for him had been received and a reply message had been sent was admissible on the issue of plaintiff’s contributory negligence.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]
    8. Telegraphs and Telephones (§ 66) — Action por Damages — Evidence — Negligence.
    In an action for damages for mental anguish from negligence in delivering plaintiff’s reply telegram, evidence that plaintiff’s brother had told defendant’s agent how he might be reached by telephone, which fact the agent remembered when the reply came after regular office hours on Saturday evening, was admissible upon the issue of its neglect in not delivering it until 10 o’clock the following morning, provided that such office hours were not reasonable.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.]

      9. Telegraphs and Telephones (§ 38) — Operation — Delivery of Message.
    A telegraph company is bound to exercise ordinary diligence to deliver a message promptly.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by Lester Johnson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed,
    Arch Grinnan, of Brown wood, for appellant. Goodson & Goodson, of Comanche, for appellee.

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

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

   DUNKLIN, J.

The Western Union Telegraph Company has appealed from a judgment in favor of Lester Johnson for damages for the defendant’s alleged negligence in delaying the delivery of a telegram sent over defendant’s line from Glazier, Tex., to Comanche, Tex. The trial was without the intervention of a jury, and the trial judge has filed findings of fact and conclusions of law, which are as follows:

As conclusions of fact, I find:

“I. I find that the plaintiff, Lester Johnson, was the son of-Johnson, and that his said father resided in the city of Comanche Tex., and died at 2 o’clock p. m. on Tuesday, the 6th day of February, A. D. 1912, in the city of Comanche, Tex., where he had been very sick for a week or two previous thereto, and that Lewis Johnson was a brother of Lester Johnson, who at and before his death was residing with his father in the city of Comanche, Tex., and taking care of him.
“II. I find that, for the purpose of giving Lester Johnson an opportunity of coming from his home at Ochiltree, Tex., to see his father while he was yet alive, and for the benefit of Lester Johnson, from defendant’s office in the city of Comanche, Tex., on the 30th day of January, A. D. 1912, Lewis Johnson sent to Lester Johnson at Ochiltree, Tex., the following message: ‘Comanche, Texas, 1/30/1912. Lester Johnson, Ochiltree, Texas. If you want to see your father alive, come at once. Lewis Johnson’ — and at the same time paid the agent of the defendant for said message, and at said time stated to said agent that his father was dangerously sick, and that he wanted to send this message to his brother in order that he might come to Comanche, Tex., and see his father before he died, and that he, Lewis Johnson, expected a reply from this message, and told the said agent, where he lived, and that he did not have a phone in his house, but that Mr. G. W. S. Gage or Albert Lafferty, or Mrs. Gerganess, all of whom live just across the street from Lewis Johnson, all had phones, and told him some of the numbers of said phones, and requested that when the reply came he phone it to him at once, by phoning either of the above-named phones of his neighbors, who would come and get him, Lewis Johnson, to the phone; and said agent agreed to immediately phone the reply to said message to Lewis Johnson, as requested on receipt of same.
“III. I And that this message was correctly and properly transmitted, and delivered at Ochiltree, Tex., to Tom Atehley, a brother-in-law of Lester Johnson for the benefit of Lester Johnson, who at that time was absent, from Ochiltree on a freighting trip at a considerable distance from his home, and that. Lester Johnson did not return to Ochiltree,. Tex., until about sundown on Saturday, February 3, 1912, when the message was delivered to him, Lester Johnson, and which was-the earliest time that it could have been delivered to him, and I find up to this time there was no negligence committed by the-defendant.
“IV. I find that on Saturday, February 3,. 1912, at 11:45 a. m., Lester Johnson not having returned home from his freighting trip, his brother-in-law, Tom Atehley, acting for Lester Johnson, caused to be delivered to the defendant’s agent at its office in Glazier, Tex., the following message for transmission to Lewis Johnson at Comanche, Tex.: ‘Glazier,. Texas, Feb. 3, 1912. Lewis Johnson, Comanche, Texas. Is your father alive? Lester not here, will be home tonight. Answer. Tom Atehley.’ And that defendant transmitted said message, and it arrived at the defendant’s office in the city of Comanche, Tex.,, at 8:21 o’clock p. m. Saturday, February 3, 1912, and at that timé the defendant’s office-in Comanche, Tex., was open, and its agent was in the office attending to the defendant’s-business as such agent, and at said time received said message off the wire in said office,, and another message to a different party at about the same time, and at said time said agent then knew and remembered that this-was an answer sent to Lewis Johnson by Tom Atehley for Lester Johnson, in answer to the telegram that Lewis Johnson had sent, and to which Lewis Johnson had told him that he-would receive an answer, and then knew and remembered the telephone number that Lewis Johnson had given him to deliver said message to, which number was at that time connected with the phone then in his office, and then knew and remembered that he had. promised Lewis Johnson to immediately telephone said answer to said telegram to and. thus make delivery of the same.
“V. I find that Tom Atehley acting for Lester Johnson sent this telegram in order to-find out whether or not the father of Lester Johnson had died, so if he had not and was still alive, that as soon as a reply was received to it stating that he was alive that. Lester Johnson, who would return that evening, would then leave Ochiltree, Tex., immediately and come to see his father, and. come in order to be with his father before he died.
“VI. I find that the message referred to in paragraph 4 above of these findings of fact was phoned from Ochiltree to Glazier, Tes., and was, at the latter point, delivered to the defendant’s agent at Glazier, Tes., at 11:45 a. m. on February S, 1912, by a boy by the name of Russell, and was worded as.follows: ‘Glazier, Texas, Peb. 3, 1912. To Lewis Johnson, Oomanche, Tesas, Is your father alive? Lester not here, will be home; tonight. Answer. Tom Atchley.’ That at the time the defendant agent received said message at Glazier, Tex., for transmission, he did not know any of the parties to said message, and he had no knowledge of the intent or purpose of said message, except what appeared on the face of the message itself, and this fact was agreed to on the trial of this case.
“VII. I find that when.the agent at Glazier, Tex., received said message, it was sufficient to put him on notice that it was sent for the benefit of the party therein named as ‘Lester,’ who the message stated was not yet at home, and that Lewis Johnson and Lester were brothers, and the sons of the Johnson, their father, at Oomanche, Tex., who was about to die, and that it was sent for the benefit of Lester to enable him, if his father was still alive, to start at once to his bedside.
“VIII. I find that at the time the message was received at Comanche, Tex., it was and had been the custom, rule, and habit of defendant company, and was so' at the time said agent, made the promise to Lewis Johnson, without reference to delivery limits, to deliver messages outside and in the residence portion of Comanche, Tex., over the telephone, and I further find there was no sufficient evidence to support the claim of the defendant that the point at which the agent had agreed to deliver the telegram over the phone was beyond the free-delivery limits claimed by it, from its office, and the defendant failed to prove said allegation in its answer. I further find in this connection that if, under the particular circumstances disclosed by these findings, if the defendant had any rule as to delivery beyond the free-delivery limits that forbade the delivery of this telegram under the circumstances above disclosed, it was unjust, unreasonable, and should not be enforced.
“IX. I find that the defendant had regular established office hours at Comanche, Tex., during the months of January and February, 1912, and that its said office hours during week days was from 8 o’clock a. m. to 8 o’clock p. m., and on Sundays from 10 o’clock a. m. to noon, and from 4 o’clock p. m. to 6 o’clock p. m. That on the night of February 3, 1912, the defendant’s agent at Comanche, Tex., remained in said office after defendant’s office hours, and after defendant’s messenger boy had gone home, for the purpose of accommodating a party who was going to leave town that night, and who was expecting a message and wanted to receive it before he left, and while said agent was so waiting to receive said message, at 8:21 o’clock that night, the following message came, and he received it off of defendant’s wires, to wit: ‘Glazier, Texas, Feb. 3, 1912, To Lewis Johnson, Comanche, Texas. Is your father alive? Lester not here, will be home tonight. Answer. Tom Atchley.’ That defendant’s office boy had gone home, and defendant’s said agent did not try to deliver said message that night. That said agent testified that he never did violate said office hours except one time, as above shown, and defendant nor its superintendent did not know of said violation, and did not authorize it. In this connection, however, I find that on this particular occasion the agent was in the office, and was in said office attending to the duties of said office as such agent, and received this message over the wire and took it off the wire, and made such entry and disposition of the same as would be usual and customary in the discharge of the duties of the office during office hours, and then had a phone connecting with the phone numbers and names given him for delivery, which he then remembered and knew, and knew he' had promised to make delivery at, and instead of making such delivery, he failed to do so, and did not deliver the same until about 10 o’clock the next day, Sunday, February 4, 1912, at which time the message was delivered to Lewis Johnson over the phone, and to one of the parties and numbers given him theretofore by Lewis Johnson.
“X. I find that the defendant was negligent in not delivering over the phone the message to Lewis Johnson at the time that it was received, and at that time Lewis Johnson could have been at once reached over the phone numbers and names he left to have it delivered over, and would have received it immediately upon its transmission over the phone to that number, and that if it had been so delivered to him, he would have immediately sent another message to Lester Johnson that his father was still alive, and for him to come at once, and that upon the delivery of said message to Lester Johnson, he could and would have left his home immediately upon the receipt of said information, and could and would have come at once to Comanche, Tex., and could and would have reached the bedside of his father about 10 or 12 hours prior to his death, and would have had the comfort and consolation of being with his father that long before he died; but because of the failure to so promptly deliver said telegram to Lewis Johnson, and the failure to deliver it to him until the time it was delivered, Lewis Johnson was unable to send Lester Johnson a wire until that time, and which wire then sent was as follows: ‘Comanche, Texas, 2/4/1912. Lester Johnson, Ochiltree, Texas. Father is alive, but can’t last many days. Come. Lewis Johnson.’ And I find that this message was sent by Lewis Johnson at 10:35 o’clock a. m. on Sunday morning, February 4, 1912, in about 30 or 40 minutes after the telegram had been' delivered to him, and was promptly sent and delivered to Lester Johnson at Ochiltree Tex., reaching there about sundown on Sunday, February 4, 1912, and that Lester Johnson at once left there for Comanche, Tex., by the first and quickest railroad route to Comanche, Tex., but on account of said delay in the delivery of said telegram to Lewis Johnson arrived in Comanche about 14 hours after the death of his father, and too late to be with him during the last hours of his life, and was thereby denied the consolation and comfort of being at the bedside of his father prior to his death
“XI. I find that Lester Johnson’s father had been for a long time in the usual decline, occasioned by Bright’s disease, and at that time Lester Johnson knew of the same, and that his father would at times apparently be near death and rally, and be much better for days and weeks, and then again sink into the usual condition of a person affected with that disease, and that Lester Johnson knew this, and at the time he was very poor, and had to freight a great distance for hi& living, and had a wife and several small children to support therefrom, and hard-pressed for means, and on this account felt himself too poor to visit his father unless he thought he was in imminent danger of death, and when he returned on the Saturday afternoon from the freighting trip, and was told by Atchley of receiving the first telegram from Lewis Johnson, and was delivered that message, that Atchley informed him that he had that morning sent another wire to Lewis Johnson to inquire whether his father was still alive or not; that it had been several days since Atchley had received for him the first telegram, and that he did not know but what his father then was dead and buried, and that he concluded to wait before starting the reply that he would receive from Atchley’s telegram from Lewis Johnson, and this was induced largely by his poverty and the surroundings named, and if his father was still alive he would come at once to see him, and be with him some while before he died, and under these circumstances I find as a fact that Lester Johnson was not guilty of contributory negligence, and was not guilty under the circumstances of negligence at all.
“XII. I find as a fact that immediately on receiving the last message of Lewis Johnson, Lester Johnson from Glazier, Tex., sent the following telegram, to wit, and followed the same by coming on to Comanche, Tex., at once, as before found, to wit: ‘Glazier, Texas, Feb. 5th 1912. Lewis Johnson, Comanche, Texas. I will be there Wednesday. I am at Glazier now. Lester Johnson.’
“XIII. I find that the defendant has never owned and has never been interested in any line óf telegraph or telephone running to Ochiltree, Tex., but that defendant’s lines only run to Guymon, Okl., and to Glazier Tex., and that defendant does not contract to deliver messages to parties at Ochiltree, Tex., but only contracts to deliver to any connecting line at the destination of defendant’s line. In this connection, however, I find that messages originating at Comanche, destined for Ochiltree, ■ or originating at Ochiltree, destined for Comanche, are transmitted over the wires of the defendant company between Comanche and Glazier, and between Comanche and Guymon, but between Guymon and Ochiltree and Glazier and Ochiltree such messages are transmitted by the telephone company with which the defendant company connects at Guymon and Glazier.
“XIV. I find that it is 65 miles from Ochiltree, Tex., to Glazier, Tex., and from Ochiltree to Guymon, Okl., is the same distance.
“XV. I find that it was agreed by the plaintiff and defendant on the trial of this case that the plaintiff would only rely for his recovery in this case upon proof of the negligence of the defendant’s agent in delaying the delivery of the message from Tom Atchley to Lewis Johnson after he received it off the defendant’s wires on the night of February 3, 1912, at Comanche.
“Conclusions of Law.
“I find that the defendant was negligent in failing to deliver to Lewis Johnson at the telephone name and number given defendant for delivery of the telegram sent by Tom Atchley in answer to the former telegram sent by Lewis Johnson to Lester Johnson, and that this negligence was the proximate cause of the failure of Lester Johnson to be with his father for several hours before his death, and to enjoy the comfort and consolation of being with his father for that long during his lifetime, and on account of which Lester Johnson suffered mental anguish and trouble, and suffered damages to the extent of $500, and which suffering and damages was the proximate result of said negligence, and that he is entitled to a judgment of $500 against the defendant, which is now adjudged and rendered against the defendant, together with all cost.”

Except as hereafter shown, no complaint is made of any of the findings of fact; the conclusions of law based thereon only being challenged. -

The telegrams shown in the findings of fact were alleged in plaintiff’s petition.

By the first assignment of error appellant insists that the court erred in overruling its general demurrer to the plaintiff’s petition, for that it appears therefrom that plaintiff, on February 3d, received the first message sent by bis brother, telling him that if be desired to see bis father alive be should come at once, and the petition contains no allegation of any reasonable excuse for plaintiff’s failure to start to Comanche as soon as he received that message, instead of awaiting a reply to the message sent by Tom Atehley. The case of W. U. Tel. Co. v. Gulledge, 84 Ark. 501, 106 S. W. 957, and other decisions, are cited to sustain this assignment. Those decisions announce the rule that a cause of action will not lie for negligence in failing to promptly transmit and deliver a message when the information contained in the message has already been acquired from other sources. Those authorities would be applicable here but for the fact that the telegram first sent by Lewis Johnson to his brother, telling him to come at once if he desired to see his father alive, was dated January 30th, and plaintiff did not receive it until February 3d, and the inference would necessarily arise that at the time plaintiff received that message he was in doubt whether or not an immediate trip to Comanche would enable him even to attend his father’s funeral, much less to see him alive.

By another assignment it is insisted that the message from Tom Atehley contained no notice.upon its face that the damages claimed by plaintiff in this suit might probably be expected as a result of a failure to promptly deliver the telegram, and as the court has found that defendant’s sending agent at Glazier had no knowledge of the purpose for which said message was sent, except what appeared on its face, the damages sued for were not in the contemplation of the defendant at the time of the contract to send the message, and hence no judgment therefor could be rendered. As shown by the findings, the only negligence for which a recovery was sought was that of the defendant’s agent at Comanche in delaying the delivery of the message from Tom Atehley to Lewis Johnson after he received it on the night of February 3d at Comanche. The message from Tom Atehley was itself sufficient to impart notice to appellant that it was for the benefit of “Lester,” that the father of Lewis Johnson was seriously ill, that “Lester” named therein was related to him, and probably1 would desire to visit him if informed that he was still alive. W. U. Tel. Co. v. Jenkins, 152 S. W. 198; W. U. Tel. Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826; W. U. Tel. Co. v. Steele, 110 S. W. 546. It further appears that, independent of the terms of that message, appellant’s agent at Comanche sent the first message which, unquestionably, was sufficient notice of those facts, and .at the time he sent that message Lewis Johnson gave him the same information orally. Bourland v. Choctaw, O. & G. Ry. Co., 99 Tex. 407, 90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647; Erie Tel. & Tel. Co. v. Grimes, 82 Tex. 89, 17 S. W. 831; W. U. Tel. Co. v. Nagle, 11 Tex. Civ. App. 539, 32 S. W. 707.

The only issue presented by the failure of Lester Johnson to start to Comanche immediately upon receipt of the first message, instead of awaiting the reply to Tom Atehley’s message, was that of appellee’s contributory negligence, and as the finding in his favor on that issue is not challenged by appellant, the contention that the judgment was erroneous because appellee showed no reasonable excuse for failing to start as soon as he received the first message must be overruled.

By another assignment it is insisted that the judgment is erroneous by reason of the finding by the court that the message from Atehley was received at Comanche after the close of appellant’s regular office hours theretofore established. It is well settled by the decisions in this state that it is permissible for a telegraph company to establish reasonable office hours for business in certain localities, and that no action will lie for failure to receive and deliver messages at such places during other hours. W. U. Tel. Co. v. Neel, 86 Tex. 368, 25 S. W. 15, 40 Am. St. Rep. 847; W. U. Tel. Co. v. Rawls,, 62 S. W. 136; W. U. Tel Co. v. Pearce, 95 Tex. 578, 68 S. W. 771. Whether business hours so established for any particular office are reasonable depends, of course, upon the amount of business reasonably to be expected during the hours the office is to be closed, and the expense of keeping it open. While the trial judge found that appellant had established regular office hours for transacting business in Comanche, according to which its office was closed at 8 o’clock on Saturday night and remained closed until 10 o’clock the following morning, yet he did not find that the hours so established were reasonable. Just what the evidence, if any, upon this issue tended to show we are unable to determine, as the record contains no statement of facts. In, order for this court to sustain appellant’s contention that it owed no duty to deliver the message between the time it was received at Comanche on Saturday night and 10 o’clock the following day, it would be necessary to imply a further finding of fact by the trial judge, in effect, that the office hours established for the transaction of business in Comanche were reasonable. This we would not be authorized to do.

Error has been assigned to the action of the court in permitting Lewis Johnson over appellant’s objection to testify that at the time he sent the first message to his brother he then told the agent he expected a reply, and also informed him where he could be called by telephone if the reply should come, and requested the agent to call him if such a message should be received, which the agent agreed to do. In effect, the objection urged to this testimony was that, as the conversation occurred prior to the date of the message made the basis of this suit, it formed no part of the contract to transmit the same, and hence was irrelevant and immaterial. A sufficient answer to this assignment is that, in the absence of a statement of facts, we are unable to conclude that the error, if any, in admitting the testimony was harmful. The same facts may have been proven by other testimony without objection.

The foregoing conclusion applies also to the assignment in which complaint is made of the action of the court in overruling appellant’s objection to appellee’s testimony that upon his return to Ochiltree on February 3d he was informed by Atchley that the message upon which the suit is founded had been sent to Comanche. Furthermore, this testimony .clearly was admissible on the issue of appellee’s contributory negligence.

The information given to the agent at Comanche when the first message was sent, together with the agent’s agreement to deliver any reply message thereto by telephoning appellee, were alleged in plaintiff’s petition, and an assignment of error is presented to the action of the trial court in overruling a special exception to those allegations. The grounds stated in the exception are substantially that the facts so alleged were prior to the sending of the message upon which the suit is predicated, and the alleged agreement of the agent to notify Lewis Johnson of the receipt of any reply to the first message was without consideration to support it.

If it should be held that the alleged parol agreement of the agent at the time the first message was sent, to deliver the reply to Lewis Johnson by telephoning same to a certain address, would not be a proper basis for the recovery sought, yet the exception could not be sustained for the reason that the facts alleged in the pleading to which the exception was addressed, viz., that Lewis Johnson, on the occasion last referred to, also told the agent of the location of his residence and how he could be reached by telephone if a message should be received for him, and which facts were remembered by the agent when the message came Saturday night, were material to the issue of alleged negligence of the same agent in failing promptly to deliver the reply message after its receipt by him at Comanche. At all events, appellant was bound to exercise ordinary diligence to deliver the message promptly, and the fact that the agent who received it at Comanche knew, at the time of its receipt, that the addressee could be reached immediately simply by using the telephone, then at hand, certainly could be considered in determining whether or not he was negligent in failing to deliver it until 10 o’clock the following morning, provided the defense urged that the office hours theretofore established were reasonable was not sustained. Bourland v. Choctaw, O. & G. Ry. Co., supra.

The judgment is affirmed.


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    WESTERN UNION TELEGRAPH CO. v. ERWIN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Jan. 24, 1914.)
    1. Appeal and Ebeob (§ 1195) — Remand— DETERMINATION ON APPEAL — LAW OF CASE on Retrial.
    A ruling on evidence on appeal is the law of the case on retrial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.]
    2. Telegraphs and Telephones (§ 65) — Messages — Delay—Damages—Pleading.
    Where, in an action for negligent delay in delivering a message asking the addressee to meet plaintiff’s wife at her destination, where she expected to arrive in the night, and where there were insufficient hotel accommodations, plaintiff alleged that defendant’s sending agent was notified of the necessity for immediate delivery, and that, unless the telegram was immediately delivered, his wife would not go, because she could not be properly cared for at destination, unless she was met by her relatives and taken to their home, the allegation was sufficient to show that defendant’s agent was notified of the insufficient hotel accommodations at the destination, so as 'to entitle plaintiff to> prove the same as an element of damage for failure to promptly deliver the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dee. Dig. § 65.]
    3. Trial (§ 191) — Messages—Failure to Deli ver — I NSTRUCTIO NS.
    Where plaintiff sued for negligent delay in delivering a telegram notifying the addressee to meet plaintiff’s wife, who intended to arrive at the destination of the telegram on the night of the day it was sent, an instruction that, if plaintiff delivered the message to defendant, and was informed by defendant that the telegram had been delivered, and plaintiff, acting on such representations, sent his wife on her journey, and on arrival there she sustained damages, if any, by reason of the failure to deliver the message, if any, then the jury should find for plaintiff such damages as were the proximate result of defendant’s default, etc., was not objectionable in assuming that defendant was guilty of negligence, if its sending agent falsely informed plaintiff, before his wife started, that the message had been delivered, and authorizing a recovery, though defendant had used due diligence to deliver the message.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    4. Trial (§ 256) — Instructions—Necessity of Request — Measure of Damages.
    In an action for negligence in failing to deliver a telegram, an instruction that, if the verdict was for plaintiff, the jury should allow such damages, if any, as were the proximate result of defendant’s failure to deliver the telegram as alleged was proper and sufficient, in the absence of a request for a more specific instruction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by H. A. Erwin against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. M. Wagstaff, of Abilene, for appellant. Scarborough & Hickman, of Abilene, for ap-pellee.

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

   DUNKLIN, J.

H. A. Erwin recovered a judgment against the Western Union Telegraph Company* for damages for failure to deliver a telegram, and the defendant has appealed.

This is the second appeal, a former ap.peal from a like judgment being reported in 147 S. W. 607. Plaintiff, who resided at Abilene, desired to send his wife to the home of her parents in the country some two or three miles distant from the town of Dundee. Mrs. Erwin was sick, and the purpose of her trip was that she could have the care of her mother during her illness. Her sister, Hattie Medlin, was attending. school at the town of Dundee, and the plaintiff instructed the agent at Abilene to have the message delivered to Hattie Med-lin, who could be found at school up to 4 o’clock in the afternoon. According to allegations in the plaintiff’s petition, which were supported by his testimony, he informed defendant’s agent at Abilene, who received the message for transmission, of the facts above related. The telegram in question read as follows: “1.11.10. Abilene, Texas. To Hattie Medlin, J. A. Medlin. Meet me on the midnight train. Ola.” “Ola” was the wife of plaintiff, Hattie Medlin was her sister, and J. A. Medlin was her father.

According to further allegations and evidence, plaintiff notified the agent at Abilene that he would not send his wife upon the trip, unless he could be sure that some one of her family would meet her at Dundee; that the hotel accommodations at Dundee were inadequate; that later in the afternoon of the same day the telegram was sent, he returned to defendant’s office at Abilene, inquired of the agent whether or not the telegram had been delivered, and was informed by the agent that it had been delivered. With this assurance he sent his wife upon the train to Dundee, at which station she arrived about 1 o’clock at night. The telegram had never been delivered to Hattie Medlin, but had been deposited in the post office for J. A. Medlin, who did not receive it until after that night. When Mrs. Erwin arrived at Dundee, there was no one at the station to meet her, in fact, no one there at all, and she was compelled to walk quite a distance to the hotel, where she remained until the following morning.

According to her testimony, the night was cold, and she was very much frightened at being compelled to walk from the station to the hotel unattended and with a baby in arms only a few weeks old, both she and the baby being ill at the time. She further testified that the accommodations at the hotel were poor, and that the room in which she spent the remainder of the night was disagreeably cold; by reason of all which facts her illness was accentuated. It was alleged in the petition that all of these facts were known to appellant’s ' agent at the time the telegram was sent, and at the time of the assurances given by him to plaintiff that the telegram had been delivered, which was before Mrs. Erwin started on her trip.

By the first assignment appellant insists that the court erred in admitting plaintiff’s testimony that Chester Brewer, appellant’s agent at Abilene, assured plaintiff be^. fore Mrs. Erwin started on the trip that the telegram had been delivered. "The ground of the objection to this testimony was that there was no evidence to show that Chester Brewer had authority to bind the appellant by a statement concerning a transaction of another agent at Dundee, further than the mere fact that he was appellant’s agent at Abilene. The same contention was made upon the former appeal, and was decided adversely to appellant, and that decision is the law of the case.

It is further insisted that the plaintiff’s petition contained no allegation that defendant had any notice of any facts or circumstances to put it upon notice that plaintiff’s wife would not be properly eared for at the hotel in Dundee, and hence that any inconvenience or injury sustained ,by Mrs. Erwin by reason of inadequate accommodations at the hotel was not within the contemplation of the parties at the time the message was sent. A sufficient answer to this assignment is the fact that the lack of sufficient hotel accommodations was specially alleged in plaintiff’s petition among other facts, and the petition contained the direct and positive allegation that all of the facts therein alleged were known to appellant’s agent at Abilene at the time the message was sent.

Error has been assigned to the following instruction given by the court to the jury : “You are charged that, if you find and believe from a preponderance of the testimony that plaintiff delivered the telegram to defendant as alleged in his petition, and was informed by defendant that said telegram had been delivered by defendant as alleged, and you further find that plaintiff, acting upon said representations, if any, sent his wife to Dundee, Tex., and that upon arrival there she sustained certain damages, if any, by reason of the failure of defendant to deliver said telegram, if there was any such failure, then you will find for the plaintiff such damages, if any, as were the proximate result of the failure of defendant to deliver said telegram as alleged, and so say by your verdict; otherwise you will find for the defendant.”

Appellant insists that this charge was upon the weight of the evidence, in that it assumes that defendant was guilty of negligence if its agent at Abilene informed plaintiff before his wife started that the message had been delivered at Dundee, and further that it authorized a recovery, even though appellant may have used due diligence to deliver tlie message. The agent at Abilene denied that he gave to the plaintiff any such information. If he gave the information, there was no explanation or excuse offered for thus deceiving the plaintiff, and that the giving of that information without excuse was negligence is the only conclusion that could have been drawn by the jury. And, if the appellant was guilty of negligence in giving this information, which was the proximate cause of the injuries complained of, then it was immaterial whether or not appellant used proper diligence to deliver the telegram before Mrs. Erwin left Abilene. Another proposition submitted under the assignment now under discussion is that it was not shown that the agent had legal authority to bind the appellant by such a statement. This criticism is answered by what we have already said. Nor can we say that the judgment is excessive, when considered in the light of all the facts and circumstances in evidence.

Error has been assigned also to the instruction upon the measure of damages; the instruction being that, if a verdict should be returned in favor of plaintiff, the jury should allow him “such damages, if any, as were the proximate result of the failure of the defendant to deliver said telegram as alleged.” The criticism addressed to the instruction is that it fails to confine the jury to any lawful measure of damages, or to damages alleged in the pleadings. While the charge is in general terms, it states a correct measure of damages, and, in the absence of a request by appellant for a more specific instruction telling the jury what items could be considered in estimating the damages, the assignment must be overruled.

The judgment is affirmed.


author: McKENZIE, J.

text:
    IRVING v. TEXAS & P. RY. CO.
    (Court of Civil Appeals of Texas. El Paso.
    June 12, 1913.
    Affirmed on Its Merits Feb. 12, 1914.
    Rehearing Denied March 12, 1914.)
    1. RAILROADS (§ 415) — Operation—Stock on Track.
    A railroad, whose right of way was inclosed by good and substantial fences, was not bound to keep a lookout- for herds of cattle which might be driven across its right of way, since the trainmen might assume that it would be free from trespassers.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1476-1482; Dec. Dig. § 415.]
    2. Railroads (§ 422) — Operation—Stock on Track— Contributory Negligence.
    Plaintiff, who unlawfully took down a railroad’s right of way fences to drive his stock across, was a trespasser upon the right of way and guilty of negligence contributing to injury to his stock from a freight train.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1512-1515; Dec. Dig. § 422.]
    3. Railroads (§ 390) — Operation—Presence on Track — Discovered Peril.
    A railroad cannot be held liable because its servants were negligent in failing to discover a person in a place of peril, or in failing to recognize his peril, but is liable only when they actually saw him and realized his peril in time, by the use of the means at hand, to stop the train before a collision.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. § 390.]
    4. Railroads (§ 441) — Operation — Injury to Stock — Burden op PRooe.
    Plaintiff, in an action against a railroad for collision with his stock as it was being driven across the right of way, had the burden of showing that the trainmen actually saw the stock, realized its peril, and that the discovery was in time for them, by the use of the means at hand, to stop or slow the train before collision.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    5. Railroads (§§ 415, 419) — Operation — Stock on Track — Discovered Peril.
    A railroad was not liable because its trainmen failed to discover plaintiff’s stock on its right of way in time to avoid a collision, or because, having seen them, it failed to recognize their peril, unless they realized that it would not get off the track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1476-1482, 1489-1500; Dec. Dig. §§ 415, 419.]
    6. Railroads (§ 446) — Operation—Question eor Jury — Discovered Peril.
    In an action against a railroad for injuries to stock driven on its right of way and run into by a freight train, where there was no evidence upon the issue of discovered peril, a verdict for the railroad was properly directed.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.]
    7. Railroads (§ 441) — Stock on Track-Presumption oe Knowledge.
    Where there were only a few instances of the crossing of defendant’s right of way by herds of cattle, it could not be presumed that defendant had knowledge thereof.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. § 441.]
    8. Railroads (§ 405) — Stock on Track — License.
    Where it did not appear that a railroad had any knowledge of herds crossing its right of way or had ever expressly or impliedly consented thereto, a license for herds to cross could not be implied from the fact of an occasional crossing.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1393-1398; Dec. Dig. § 405.]
    Appeal from District Court, Reeves County; S. J. Isaacs, Judge.
    Action by J. B. Irving against the Texas & Pacific Railway Company, with cross-action by defendant. Judgment for defendant in plaintiff’s suit and for plaintiff on defendant’s cross-action, and, after affirmance in the Court of Civil Appeals (157 S. W. 752), order overruling plaintiff’s motion for rehearing set aside and case reinstated for determination on the merits.
    Affirmed.
    Hefner & Cooke and Parker & Palmer, all of Pecos, for appellant. Douthit & Smith, of Sweetwater, and Howard & DeArmond, of Midland, for appellee.

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

   McKENZIE, J.

At a former day, this cause was affirmed, and the motion for rehearing overruled (157 S. W. 752), because the assignments of error did not comply with the requirements of amended rules 24 and 25 (142 S. W. xii). Afterwards, and during that term of the court, we reconsidered our action and caused the order overruling the motion for rehearing to be set aside. Our action in reinstating the motion was based upon the authorities of Hough v. Fink, 141 S. W. 147, Southern Pine Humber Co. v. Arnold, 139 S. W. 917, and Olivarri v. Western Union Telegraph Co., 116 S. W. 392, which hold that a peremptory instruction, improperly given, of itself raises a question of fundamental error, which would require consideration by this court. Though we do not concur in the conclusions reached in the cases cited, yet there are but a limited number of cases affected, and because the questions involved are not such as to require us to certify to the Supreme Court to rectify the difference of opinion, as between this and the other Courts of Civil Appeals holding to the contrary, we have determined to decide the case upon its merits, and will therefore give due consideration to the assignments of error, as they appear in appellant’s brief.

Appellant, J. B. Irving, as plaintiff below, sued the Texas & Pacific Railway Company, as defendant below, for damages caused by defendant, running a freight train through his herd of cattle while said cattle were being driven over and across defendant’s right of way, thereby killing and injuring 56 head thereof. In substance, the plaintiff alleges that he was lawfully upon the defendant’s right of way with his cattle, and that the injury resulted from defendant’s negligent acts in operating its train, and that the injury could have been averted had defendant’s agents, so operating the train, exercised ordinary care to avoid striking his cattle after discovering their perilous situation. Defendant answered by general denial and pleaded specially the contributory negligence of plaintiff in driving his cattle upon defendant’s right of way, which said right of way was fenced, and which said place was not a public crossing, and that plaintiff knew or could have known by the exercise of ordinary care that there were public crossings both east and west of the point where he attempted to cross his said cattle over .the defendant’s right of way; that plaintiff was guilty of gross negligence in so driving or attempting to drive his said cattle across the defendant’s right of way where the same was fenced, and which was the proximate cause of the injuries to said cattle; and plaintiff thereby assumed the risk and violated the ■law in attempting to cross his herd of cattle at said place. Also that at the time of the injury there was a severe sandstorm, peculiar to the Pecos country, raging at the time, which prevented the operatives of the train from seeing plaintiff’s herd of cattle, and that plaintiff was negligent in not sending watchmen to flag the train, or to take any other precaution to avoid said cattle being struck by passing trains on defendant’s right of way. The defendant also pleaded, by way of cross-action, for damages against the plaintiff for the derailment of its train in the sum of $3,000.

After the plaintiff had closed his case, the trial court peremptorily instructed the jury to find for defendant on plaintiff’s suit for damages, and for plaintiff on defendant’s cross-action. In accordance with said instruction, the jury returned its verdict, and judgment was' entered thereon. It was because of this action of the trial court in so peremptorily instructing the jury that plaintiff has appealed to this court.

Under the first assignment of error, appellant contends that the evidence introduced was sufficient to raise the issue of discovered peril, and that such issue should have been submitted to the jury. We are of opinion that the evidence does not support appellant’s contention.

The evidence shows that defendant’s right of way was inclosed by a good and substantial fence. The accident occurred too, at a point where the defendant was authorized to fence its right of way, and, having done so, it was not incumbent upon the operatives of the train to keep a lookout for herds of cattle which might be driven across its right of way. The train operatives might well assume that the right of way would be free from trespassers. St. Louis S. W. Ry. Co. v. Moore, 154 S. W. 602.

The appellant unlawfully took down the defendant’s right of way fences and recklessly exposed his valuable property to the dangers of passing trains. 'Such recklessness not only endangered the lives of the operatives of the trains on defendant’s line, but was calculated to cause great damage to defendant’s property and interference with its traffic. As suggested by appellee, such acts on the part of appellant is in violation of article 794 of the Penal Code, and perhaps make appellant liable to a prosecution for a misdemeanor. Clearly appellant occupies the position of a wrongdoer, a naked trespasser upon defendant’s right of way, and is guilty of contributory negligence. Elliott on Railroads, § 1209; Ft. W. & D. C. Ry. Co. v. Roberts, 37 Tex. Civ. App. 108, 83 S. W. 250.

It is the settled law of this state that in applying the doctrine of discovered peril, even though the object in peril is a human being, the railroad company cannot be held liable because the servant was negligent in failing to discover the person or in failing to recognize his peril, but it must appear from the evidence that the servant actually Saw the man, realized his peril, and that he would not get off the track. It must also appear that the discovery of the peril was in time for the trainmen, by' the use of the means at hand, to stop the train before coming in collision with the man. S. A. & A. P. Ry. Co. v. McMillan, 100 Tex. 562, 102 S. W. 103; T. & P. Ry. Co. v. Breadow, 90 Tex. 26, 36 S. W. 410; T. & P. Ry. Co. v. Staggs, 90 Tex. 458, 39 S. W. 295.

We do not undertake to decide here that the doctrine so announced is applicable when a herd of cattle is upon the track. When announcing the above doctrine, the Supreme Court was dealing with cases where human beings were upon the track of a railway company. The reason for the doctrine is based “upon principles of humanity and public policy, to prevent what would'otherwise be, so far as civil liability is concerned, the licensed destruction of persons negligently exposing themselves tq peril.” Railway Co. v. Breadow, supra.

Granting, for the present, that the principles announced are applicable to a herd of cattle upon the railroad track, and we expressly refrain from so deciding, the question arises: Was there testimony before the jury which raised the issue of discovered peril? There is nothing in the testimony to suggest that the engineer or the fireman saw the cattle. There was no bell rung or alarm given by the operatives of the train and no effort, so far as the testimony shows, to stop the train until after it struck the cattle. The burden of proof was upon appellant to establish the fact that the operatives of the train actually saw the cattle, realized their peril, and that those in charge of the herd^ would not get them off the track in time to avoid being struck; and it must also appear that the discovery was in time for the trainmen, by the use of the means at hand, to stop or slacken the train before coming in collision with the cattle. The defendant cannot be held liable because the operatives of the train failed to discover the cattle in time to have avoided the accident, or, having seen the cattle, then failing to recognize their peril; but as said in Railway Go. v. McMillan, supra, it must appear from the evidence that the servant actually saw the cattle, realized their peril, and that they would not get off the track. The evidence wholly fails to establish any one of the essential requirements to raise the issue, and the trial court properly directed the jury to return its verdict for defendant.

Under the second assignment of error, appellant submits the following proposition: “It being admitted that plaintiff did not attempt to cross at a regular public crossing, and the petition alleging a license or implied consent to cross in the manner in which he did, and the defense being that crossing in such manner made him a trespasser and constituted contributory negligence, and the evidence being sufficient to raise an issue of fact as to whether he crossed in such manner by the express or implied consent of the defendant and an issue of fact as to whether the manner in which he crossed constituted contributory negligence on his part, such issue should have been submitted to the jury.”

This proposition cannot be maintained in view of the fact that the evidence shows conclusively that the defendant had at no time given its consent, either expressly or impliedly, for the crossing of herds of cattle at the place and in the manner as did appellant. Nor was it shown that the defendant had any knowledge of such herds crossing, nor could it be presumed that it had such knowledge, since the evidence shows that there were only a few instances of the crossing of other herds of cattle. We quote with approval from Railway Co. v. Shiflet, 98 Tex. 331, 83 S. W. 678, as decisive of the question: “We do not understand that persons become licensees, who, without the express or implied permission of a railroad company, habitually use its track as a convenience in passing from one point to another. There was no express permission shown in this case, nor do we think such permission can be implied from the mere fact that persons were accustomed to use the track as a pathway without objection on the part of the defendant company. That no benefit could accrue to it from such use is apparent. On the contrary, it is but reasonable to suppose that the presence of persons walking on the track would be calculated to interfere with the operation of the trains, and would therefore be objectionable. A railroad company has no practicable means of preventing a use of this character. It would require a small army to picket a long line of railroad to prevent trespassers upon it. Trespassers cannot be prosecuted for the wrong, for it is not a penal offense under our law. A license, whether expressed or implied, must proceed from the fact of some one having authority to grant it; and we think, in the absence of proof, it should not be presumed that the servants of a railroad company, who operate its trains, have such authority. Therefore we are of opinion that a license should not be implied from the mere fact that persons were accustomed to use the track as a passway, or from the further fact that the conductor or engineer knew of such custom.”

The second assignment of error is therefore overruled.

For the reasons assigned in overruling the second assignment of error, the third, fourth, fifth, sixth, and seventh assignments of error are also overruled.

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


author: KEY, C. J.

text:
    FISHER v. HEMMING et al.
    (Court of Civil Appeals of Texas. Austin.
    June 4, 1913.
    Rehearing Denied Oct. 8, 1913.
    Writ of Error Denied by Supreme Court March 4, 1914.)
    1. Judgment (§ 367:) — Vacation—Proper Defense — Negligence.
    Where complainant was served in another suit with process and a petition expressly seeking to charge him personally with liability on vendor’s lien notes, and, after filing a general denial in accordance with an attorney’s advice, he paid no further attention to the defense of the suit until execution was levied on a personal judgment recovered against him, he was guilty of inexcusable neglect, and therefore was not entitled to sue to set aside the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 709; Dec. Dig. § 367.]
    2. Judgment (§ 368) — Default Judgment— jReliept-Negligence of Attorney — Imputation to Client.
    It is no ground for relief against a judgment recovered against a party that it was obtained by reason of the mistake or negligence of his attorney; such mistake or negligence being imputed to the client.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 600; Dec. Dig. § 368.]
    3. Vendor and Purchaser (§ 181) — Trans-4 fer of Land — Vendor’s Lien Notes — Assumption.
    Land subject to a vendor’s lien was conveyed to plaintiff by deed reciting that the conveyance was for $7,000, “paid and secured to be paid” by plaintiff, as follows: “$4,053.25 paid, receipt of which was acknowledged, and the further consideration that plaintiff take the land subject to certain indebtedness now against the land described, etc., followed by a description of the notes aggregating $2,946.75, which indebtedness was a part of that described in a prior deed to plaintiff’s grantor, etc., and the further consideration that plaintiff take the land subject to taxes for 1909.” Held, that the recitals of such deed indicated that plaintiff contracted to assume the payment of the notes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 367, 368; Dec. Dig. § 181.]
    Appeal from District Court, Coleman County; John W. Goodwin, Judge.
    Suit by Charles S. Fisher against C. C. Hemming and others, to set aside a personal judgment against him on certain vendor’s lien notes, and to enjoin an execution for the collection thereof. From a decree in favor of defendants, complainant appeals.
    Affirmed.
    John B. Durrett, of Belton, for appellant. Critz & Woodward, Woodward & Baker, and Snodgrass & Dibrell, all of Coleman, for ap-pellees.

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

   KEY, C. J.

On March 6, 1911, C. C. Hemming filed a suit in the district court of Coleman county against R. H. Atchley, George N. Beakley, J. B. Hewell, and Charles S. Fisher, in which he sought to recover a personal judgment against all of the defendants for the sum of $2,170, and the foreclosure of a lien upon certain real estate. The plaintiff alleged in his petition that he had formerly sold the land referred to to the defendant Atchley, and that Atchley had executed vendor’s lien notes for the amount sued for. He also alleged that Atchley had sold the land to J. B. Hewell, that Hewell had sold it to G. N. Beakley, and that Beakley had sold it to his codefendant Charles Fisher. Hemming distinctly alleged in his petition that each of the defendants in that suit, Atchley, Hewell, Beakley, and Fisher, had assumed and promised to pay the vendor’s lien notes upon which the suit was based. The defendant Atchley filed an answer which, among other things, set up a cross-action against his co-defendants Hewell, Beakley, and Fisher; he alleging that they had each assumed the payment of the notes owing to the plaintiff Hemming, and he asked judgment over against them. The defendant Beakley filed a similar cross-action against his codefendant and ven-dee Fisher, in which he alleged that the latter had assumed the payment of the notes referred to, and asked for judgment over against him. Citation upon the plaintiff's cause of action, and also upon the cross-actions set up by the defendants Atchley and Beakley, accompanied by copies of their respective pleadings, were duly served upon the defendant Charles Fisher, and the latter filed an answer which embraced a general demurrer and a general denial. Thereafter, on the 26th day of April, 1911, the case was called and tried, and judgment rendered for the plaintiff Hemming against all the defendants for the amount sued for, and for the foreclosure of his lien upon the land. Judgment was also rendered in favor of the defendant Atchley on his cross-action, against his codefendants Hewell, Beakley, and Fisher for $1,292.91, and for whatever sum he might pay on the judgment rendered in favor of the plaintiff against him, but requiring that execution be first issued against the defendant Fisher. Judgment was also rendered in favor of defendant Beakley on his cross-action against the defendant Fisher for the sum of $3,462.-91. In May, 1911, an order of sale was issued, and in July, 1911, the land referred to was sold under that order and bought in by the plaintiff Hemming for the sum of $800. In August, 1911, an execution was issued to Coleman county against the defendant Fisher, and returned nulla bona, and thereafter, on the 21st day of August, 1911, an alias execution was issued against Fisher, directed to Bell county, which execution the sheriff of that county levied upon certain real estate, the property of the defendant Fisher. On September 30, 1911, Charles S. Fisher filed this suit in the district court of Coleman county against C. O. Hemming, the plaintiff in the original suit, and R. H. Atch-ley, J. B. Hewell, G. N. Beakley, defendants in that suit, and James B. Blair, the sheriff of Bell county, and Walter C. Woodward, who had purchased R. H. Atchley’s interest in the judgment. In this latter suit the plaintiff Eislier made a direct attack upon the personal judgments rendered against Mm in the former suit, and prayed that the same be adjudged to be void and of no effect, and that their execution be perpetually enjoined. The trial judge granted a temporary writ of injunction, which was subsequently dissolved. The defendants Hemming, Atchley, Beakley, and Woodward filed answers which embraced general demurrers, 15 special exceptions, general denials, and special answers. The trial court sustained aU of the exceptions to the plaintiff’s petition, and, the latter having declined to amend, the injunction was dissolved, and the cause dismissed, and the plaintiff has appealed and assigns as error the action of- the trial court just referred to.

The petition seeks to have the former judgment set aside upon the ground that it was obtained by fraud, in that the defendant Geo. N. Beakley falsely swore upon the trial of the case that Charles S. Fisher, the .plaintiff in this suit, and a codefendant in that suit, had assumed the payment of the notes there sued on. It is contended by counsel for appellee that the petition does not distinctly allege that Beakley willfully gave false testimony, and that contention seems to be correct, but we do not. decide the case upon that point. We think the petition shows on its face that the plaintiff, Fisher, was guilty of negligence, and failed to exercise proper diligence in -not attending the trial of the former case, and making the defense to that suit which he is now attempting to make. As an excuse for not doing so, he alleges that shortly before the former suit was filed Walter C. Woodward came to see him about the matter of his liability upon the Hemming notes; that he informed Woodward that he was not personally liable, exhibited to him his deed from Geo. N. Beakley, and that Woodward stated that he was not personally liable, and that Hemming would have to look to the land for his money; that after being cited to answer in that suit he consulted an attorney, delivered to him the citations and copies of pleadings which had been served upon him, and told the attorney what had occurred between him and Woodward, and that he had never assumed or agreed to pay the notes referred to, and that thereupon the attorney advised him that it would only be necessary to file a general denial in the case, in order to prevent a personal judgment being rendered against him; that he acted upon that advice, caused said attorney to prepare and had filed an answer containing a general denial; that he had no reason to anticipate that false and fraudulent testimony would be given, and a personal judgment thereby procured against him; and that he had no knowledge of the rendition of such judgment until execution thereon was levied upon his property in Bell county. He also alleges that the defendant Beakley at the time he gave the false testimony referred to, must have known that it was false, because Beakley had in Ms possession a copy of the written contract which resulted in his purchase of the land, in which it was stated that he was’to take it subject to the notes referred to, and that while ,he had never had Ms deed from Beakley recorded, it did not state, as Beakley swore it-did, that he had assumed the payment of the notes, but merely stated that he was to take the land subject to the notes. He also alleges that the defendant Woodward, who acted as attorney for Beakley in his cross-action, knew that the deed referred to did not contain'a stipulation binding him for the payment of the notes, and that in view of what had previously passed between Mm and Woodward, he had the right to assume that no effort would be made at the trial of the case to hold him personally liable. We are unable to concur with appellant in that contention, and feel compelled to hold that if he acted upon that assumption, he made an inexcusable mistake. Whatever may have passed between him and Woodward, it appears that soon thereafter the latter, as attorney for Beakley, filed a pleading, alleging that, as part of the consideration for the deed from Beakley to the plaintiff, Fisher, the latter had assumed the payment of the notes against the land, and giving Mm notice to produce his deed upon the trial. So if it be a fact that Woodward stated to the plaintiff that he was not personally liable on the notes, he may have subsequently changed Ms mind; but at any rate, it does not appear that Woodward was at any time acting for Hemming, the original plaintiff, who distinctly charged in his petition that Fisher had assumed the payment of the notes. He was served with copy of that petition, and it apprised him of the fact, as did the copies of the cross-actions filed by his codefepdants, that at the trial of the ease an effort would be made to show that he had assumed the payment of the notes referred to, and that unless he made his defense, a judgment might be rendered against him to that effect. This being, the situation, the mere filing of the general denial was not sufficient diligence upon his part; and the dictates of ordinary care and prudence required that he, or some one acting for him, should have at least taken further steps to ascertain whether or not he should appear at the trial and present Ms defense. Instead of doing this, when he received information from the clerk that Ms answer had been filed, he appears to have dismissed the entire matter from his mind, and made no effort even to ascertain what character of judgment had been rendered in the case until long after the court had adjourned and execution had been levied upon his property in Bell county, where he resides.

It is no answer to say that, in pursuing the course he did, appellant was acting upon the advice of his attorney, for the law attributes to Mm the mistake or negligence of Ms attorney. . It is a well-settled rule that when a suit is brought for the purpose of overturning and annulling a judgment which has been rendered by a court of competent jurisdiction, the party seeking to accomplish that result must not only show that he had a meritorious defense, but must also show that it was through no negligence of his that such defense was not presented when the case was tried; and in this latter respect the ‘plaintiff's petition is wholly insufficient. In fact the petition presents no excuse whatever; and therefore it must be held that appellant was guilty of such gross negligence as must prevent a court of equity from granting the relief sought.

Furthermore, in support of his allegation that he had not assumed personal liability for the notes referred to, appellant attached to his petition a copy of the deed from G. N. Beakley and wife to him, and the recitals therein invoked in his behalf read as follows: “ * * * For and in consideration of the sum of $7,000 to jis paid and secured to be paid by Ohas. S. Fisher, as follows, to wit: $4,053.25, paid, the receipt of which is hereby acknowledged and confessed and the further consideration that the said Fisher take the hereinafter described and conveyed land, subject to certain indebtedness now against the same described as follows, to wit: 5 notes for $367.50 each, due respectively on Jan. 16, 1911, 1913, 1914, 1915 and 1916, with six per cent, interest from Jan. 16, 1909. One note for $500, due Nov. 1st, 1912, with ten per cent, interest from tMs date and two notes for $265.66, due respectively'on Nov. 1, 1910 and 1911 with 8% interest from this date, the above described indebtedness aggregating $2,946.75, said indebtedness being a part of the indebtedness described in a deed from J. B. Hewell to Geo. N. Beakley bearing date December 12th, 1908, and recorded in vol. 16, page 565, of the deed records of Foard county, Texas, and the further consideration that the said Fisher takes the said land subject to the taxes for the year 1909.” Instead of these recitals supporting appellant’s contention, it seems to us that they tend strongly to the contrary. They show that the agreed consideration was $7,000, of which $4,053.25 was paid at the time the deed was made, and the notes therein referred to, and subject to which it is stated that appellant was to take the property, aggregating $2,946.75, which, added to the amount paid, makes exactly $7,000, the amount of the agreed consideration which the deed states is paid and secured to he paid by Charles 8. Fisher. The amount of the agreed consideration which was not paid at the time was already secured by a lien upon the land, and therefore it seems reasonable to hold that the language which we have italicized was used for the purpose of showing that appellant had agreed to pay the additional amount of the consideration to the holder of the notes, which constituted liens against the land.

No reversible error has been shown, and the judgment is affirmed.

Affirmed.


author: CARL, J.

text:
    PETERSON et al. v. SAN ANTONIO & A. P. RY. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.
    Rehearing DenieMarch 18, 1914.)
    CarRieks (§ 393) — Baggage — Delivery to 'Carrier.
    Where the agent of a passenger the afternoon preceding the purchase of a ticket over a railroad, one of whose posted rules provided that it would not accept baggage until 30 minutes before train time, and would not be responsible for baggage left on the platform, left a trunk on the platform adjoining the baggage-room, without calling it to the attention of the baggagemaster or any one else, and without knowing whether the baggageroom was then open, and it did not appear that the baggage-master or any railroad employé knew the trunk 'was left there, or that there was any custom that trunks left on the platform would be treated as delivered to the carrier, the company was not liable for the loss of the trunk, as goods are not delivered to a common carrier unless accepted by it or delivered at the place where it is the company’s custom to accept delivery without further requirement on the part of the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1502-1504; Dee. Dig. § 393.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Mrs. William Peterson and others against the San Antonio & Aransas Pass Railway Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Hicks, Hicks & Teagarden, Wallace H. Newton, and Chas. M. Dickson, all of San. Antonio, for appellants. Taliaferro, Cunningham & Birkhead and F. R. Williams, all of San Antonio, for appellee.

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

   CARL, J.

William Peterson sued the San Antonio & Aransas Pass Railway Company for the loss of a trunk which it was alleged was worth $530. The suit was filed March 11, 1913, and subsequently Wm. Peterson died, and his widow and children were substituted as plaintiffs.

It was alleged that on July 31, 1912, the plaintiff sent two trunks to appellee’s depot in San Antonio, to be taken by them as baggage to Corpus Christi, which were left on the platform; it being alleged that the trunks were delivered to appellee, and that the larger of the two was lost. It is the one that contained the articles for which recovery is sought. On the next day, August 1, 1912, when they went to get the trunks and check them out, the large one was gone, and they have never found same. The trial was before the court, and judgment was entered for the defendant below. The plaintiffs, except Arthur J. Peterson, have appealed. Upon motion, the court filed conclusions of law and fact.

The court found that the trunk was placed upon defendant’s platform adjoining the bag-gageroom, some time in the afternoon of July 31, 1912, and that it had the transfer-man’s check on it. It was placed there about 6:30 p. m.; but the transferman did not call the baggageman’s attention to it, and he did not know whether the baggageman was on the premises, nor whether the baggageroom was open. The owner of the trunk did not intend to take passage until the next day. And, further, that the trunk was unloaded at the customary place to unload baggage for passengers going on that road, and there was no other place where the trunk could have been unloaded before being checked; that in the afternoon of July 31, 1912, defendant’s baggageroom was open for receiving baggage only from 4 p. m. to 4:45 p. m., and from 6:30 p. m. to 9:15 p. m., and when, the baggageroom was closed it was not the duty of the baggagemaster to remain on the premises. The baggagemaster had control over the platform which adjoined the bag-gageroom. It was a rule of the company that after the last train had left at night to take all baggage left on the platform into the baggageroom for safe-keeping overnight, and next morning it would again be placed on the platform, and this rule was complied with. The court further found that it was a rule of the railway company to refuse to take charge of baggage until 30 minutes before train time, and until such baggage was actually checked, and passengers had bought tickets. This rule the court found to be reasonable, and finds further that there was no evidence that defendant or any of its agents or employes ever saw this trunk or knew that it was on the platform, and that the owner did not intend to take passage until the next day, and that said trunk was never delivered to defendant company, its agents or employes. The court also finds that on August 1, 1912, Mr. Peterson did buy tickets for himself and family and take passage to Corpus Christi.

Upon the law the court concludes: (1) That the rules and regulations of the railway company were reasonable as to receiving baggage and were enforced. (2) That it would be unreasonable to hold baggage left on the platform in the afternoon of one day by a person intending to take passage the next day to be a delivery of such baggage to the carrier, especially when the fact that such, baggage so left was never called to the attention of the carrier or its agents or employes. (3) That the baggage was not lost by defendant’s negligence, but by the negligence of the owner, and he is not entitled to recover.

Erank Wilkes, the man who hauled the trunk to the depot, says, as to when he put the trunk there: “This was some time in the afternoon, before dark. I put both these trunks on the platform adjoining the baggage-room of the S. A. P. depot right next to the scales where trunks are weighed. I didn’t put these trunks in the baggageroom, because they won’t let you until the trunks are checked. * * * I had nothing more to do with the trunks after I put them on this platform at the ‘Sap’ depot. I never saw the’ baggagemaster. I don’t know whether the baggageroom was open or not. I never looked to see. I did not call anybody’s attention to Mr. Peterson’s trunks.”

The question with which we are concerned is whether there was such a delivery of the trunk as to in any way make the railway company liable.

In East Line & R. R. Co. v. Hall, 64 Tex. 615, the liability of the company was made to depend upon whether or not it had accepted the goods. Cotton was placed upon the platform, and a good part of it had been tagged by the railway and some put in a car, but a bill of lading had not issued when the cotton burned. “The question was, Had the defendant accepted the cotton? not, Had all been done that ought to have preceded acceptance? If the defendant had taken control of the cotton and put its agents to preparing it for shipment, it had accepted the cotton.”

In I. & G. N. Ry. Co. v. Pasture Co., 5 Tex. Civ. App. 188, 23 S. W. 754, Mr. Justice Ely says: “The liability of a railway company as a common carrier attaches whenever the shipper has done all that is required of him to prepare his property for shipment, and has delivered the same to the railway company and it has teen accepted.”

Goods will not be construed as delivered to a common carrier, unless accepted by the company, or the same are delivered at the customary place for shipment and a custom is shown that delivery at such place is accepted by the company, without further requirement on part of the shipper. But to constitute a delivery of chattels, in the absence of some special feature or understanding, implies an acceptance. In this case it is not contended that there was an acceptance of the trunk, unless it is based upon a constructive acceptance from custom. It was shown, however, and not disputed, that the rules of the company were posted to the effect that it would not accept baggage until 30 minutes before train time, and would not be responsible for baggage left on the platform. Nor is it contended that the bag-gagemaster or any agent or employé of the company knew the trunk was left there. The man who hauled the trunk there says he did not see the baggagemaster or anybody else, nor does he even know whether the baggageroom was open. He put the trunks out and drove off. He was the agent of the shipper, and, as such, owed certain duties to the railway company before it could he expected that his principal could hold the company liable. If a party is to be held liable for property, he has a right to know when that duty begins. All the cases we have found hold that there must first be an acceptance, unless based upon an established custom of dealing. And then the custom would be construed as the acceptance. But that custom was not proven in this ease. The witness Hildebrand says that his company hauled 90 per cent, of the trunks to that depot. He had been engaged in such business for years, and says most emphatically that there was no such custom; that it was the custom for the man who hauled it to stay with the baggage either till the owner came or until the baggagemaster checked it in. And the trial court has found with such evidence.

In a stronger case than this one, Chief Justice Fisher holds that the evidence was not sufficient to show either a delivery to the carrier or to establish a custom. M., K. & T. Ry. Co. v. Beard, 34 Tex. Civ. App. 191, 78 S. W. 253. This case approves the doctrine laid down in Railway v. Hall, 64 Tex. 619, and in Railway v. Trawick, 80 Tex. 274, 15 S. W. 568, 18 S. W. 948, where it is shown that acceptance is necessary to bind the company.

Appellants cite H. E. & W. T. Ry. Co. v. Anderson, 147 S. W. 353, in support of their contention that there was an acceptance by custom, and as to the unreasonableness of the rules of the company in reference to checking baggage. But we find nothing in that case to- sustain that contention. The court there said: “For the safe-keeping of such baggage deposited with them a reasonable time before the departure of the train, the railroad company would be liable as common carriers (Fleischman v. Southern Ry. Co., 76 S. C. 237, 56 S. E. 976, 9 L. R. A. [N. S.] 519, and cases cited), but in the present case we think, as matter of law, from the afternoon of one day until the forenoon of the next, as testified to by appellee, was an unreasonable time, and that appellant was only liable as warehouseman, which in this case makes no material difference. As to the admissibility of the evidence as to the custom referred to, and its effect in showing delivery to appellant, we think the authorities establish, with reasonable uniformity, the rule that ‘by custom or usage the placing of goods in the usual place of delivery to the carrier may amount to a sufficient delivery and acceptance, although no notice to the agent of the carrier is shown.’ 6 Cyc. 414. The doctrine is also stated that ‘a regulation that baggage shall not be cheeked until a ticket is procured is reasonable, but the carrier cannot limit its liability by refusing to take charge of baggage until the procurement of a ticket.’ 6 Cyc. 670. The doctrine stated in Cyc. finds support also in the following authorities: Hutchinson’s Carriers, §§ 90, 91; Montgomery & Eufala R. R. Co. v. Kolb, 73 Ala. 396, 49 Am. Rep. 57, 58; Green v. M. & P. Ry. Co., 38 Iowa, 100; Id., 41 Iowa, 410; G., C. & S. F. Ry. Co. v. Pool, 10 Tex. Civ. App. 682, 31 S. W. 689.”

As we view the matter, the plaintiffs below failed in two particulars to discharge-the burdens resting on them: (1) They did not establish a custom upon which they could rely. (2) And utterly failed to show any acceptance of the trunks by the company, or to show that its agents knew anything about them.

In Gregory v. Webb, 40 Tex. Civ. App. 360, 89 S. W. 1109, the court held that the mere placing of a trunk by a transfer company in the baggageroom was not a delivery to the depot company, and that such company was not liable for its loss. “The plaintiff, Sam Webb, employed the transfer company to take his trunk to the depot for shipment on one of the outgoing trains; plaintiff intending to check it when he reached the depot. A servant of the transfer company took the trunk to the depot and placed it in the entrance of the baggageroom, without calling it to the attention of any agent of the depot company, or advising any one to whom the trunk belonged. There is evidence that one Greenleaf, who left on an earlier train than plaintiff, mistook plaintiff’s trunk for his own, and had it checked out as such. The baggagemaster had not been advised, and did not know, to whom the trunk belonged. To hold that the placing of the trunk in the baggageroom was of itself delivery of the trunk to the depot company or baggage-master would, in effect, impose upon the depot company the duty of requiring each one who claimed such baggage for shipment to identify himself as the owner in the most absolute way, and would render the prompt handling of baggage practically impossible.”

A passenger is bound to look after his own property until it is delivered and accepted by the carrier; or at least until he has complied with an established custom of the carrier in dealing with the public, in reference to the receipt of baggage. Neither of these is shown to have been done, and the plaintiff cannot recover.

Judgment affirmed.


author: MOURSUND, J.

text:
    SMALLEY v. VINTON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 11, 1914.)
    Alteration of Instruments (§ 20) — Notes— Striking Special Indorsement.
    Since a payee who makes a special indorsement of a note, and afterwards becomes its owner, may strike out his own or subsequent indorsements, and bring suit thereon in his own name, his erasure of his own indorsement is not such an alteration as to release the maker.
    [Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 158-189; Dec. Dig. § 20.]
    Appeal from Calhoun County Court; E. M. Dudgeon, Judge.
    Action by Henry 'Smalley against Wm. A. Vinton and another. Prom a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Elmer Yates and Lewis Wood, both of Port Lavaca, for appellant.

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

   MOURSUND, J.

Appellant sued appellees upon three promissory notes for $111 each, dated April 14, 1911, executed by appellees to appellant; also for foreclosure of a chattel mortgage lien upon an automobile, given to secure the payment of said notes. The petition contained the allegation that plaintiff was the legal and equitable owner and holder of the notes, but that the same had at one time been indorsed by plaintiff to Nora Culvert, his daughter, for the purpose of having her collect said notes as agent for plaintiff ; that thereafter the notes were returned to plaintiff by his daughter, and plaintiff erased the indorsement from the back of each of said notes. Defendants admitted the execution of the notes, but denied that plaintiff was the owner thereof, and alleged that Nora Culvert was the owner thereof, and that she had notified defendants not to pay the same to plaintiff; that Nora Culvert had never returned the notes to plaintiff, but plaintiff had secured . possession thereof by means of fraudulent devices, and had erased the indorsement without her authority; that Nora Culvert had granted defendants an extension of said notes for a valuable consideration. Defendants prayed that Nora Culvert be made a party to the suit. Various exceptions were filed; but, as no questions are raised concerning the rulings thereon, it will not be necessary to state the same. The trial before the court, without a jury, resulted in a judgment for defendants.

When plaintiff offered the notes in evidence, defendants objected on the ground that the same had been materially altered by erasing the indorsements to Nora Culvert, which objection was sustained by the court; and such ruling is assigned as error. The court, in his findings of fact, states that plaintiff regained possession of the notes and obliterated his indorsements to Nora Culvert by means of some instrument or acid, and concluded that the note was thereby materially altered, in that it changed the ownership of the notes, and therefore they were not admissible in evidence. The court apparently took the view that, even if plaintiff was the real owner of the notes, his erasure of his indorsement was such an alteration as would release the makers. It does not appear what the testimony was with regard to the ownership of the notes other than that plaintiff regained possession thereof, but, from the statements in the bill of exceptions and the court’s findings of fact, we infer that plaintiff testified to being the owner of the notes,' and it does not appear that Nora Culvert testified at all; in fact an application for a continuance was made on the ground that defendants wanted her testimony. It is well settled that, when the payee of a note makes a special indorsement of it, and afterwards becomes the owner thereof, he has the right to strike out his own or other subsequent indorsements, and bring suit in his own name. Gray v. Altman, 149 S. W. 760; Bynum v. Hobbs, 56 Tex. Civ. App. 557, 121 S. W. 900; Collins v. Bank, 75 Tex. 254, 11 S. W. 1053; Texas L. & C. Co. v. Carroll, 63 Tex. 52; Tutt v. Thornton, 57 Tex. 35; Dan. on Neg. Inst. § 1198.

“The payee’s possession of a bill or note is prima facie evidence of title in him, notwithstanding his own indorsement is erased, and even it has been held, notwithstanding his own special indorsement or indorsement in blank, uncanceled. So he may strike out his own special indorsement and all succeeding indorsements. The holder may strike out a special indorsement by himself without showing that it was made for collection, and (as in the case of his blank indorsement) without making any retransfer to himself.” Randolph on Com. Paper, § 717; Hays v. Cage, 2 Tex. 501; Garrett v. Findlater, 21 Tex. Civ. App. 635, 53 S. W. 839; Swenson v. Heidenheimer, 52 S. W. 989; Hilliard v. White, 31 S. W. 553.

It is apparent from the authorities cited that the court erred in excluding the notes on the ground that they had been altered.

The judgment is reversed, ‘and the cause remanded.


text:
    GOINS v. ZANDERSON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 11, 1914.)
    Landlord and Tenant (§ 258) — Right of Property — 1Triai^-Rights of Lienholder.
    Claimant of a landlord’s lien on property of a tenant levied on under execution could not enforce Ms lien in a statutory proceeding for the trial of the right of property, where the claimant was not in possession of the property at the time of the levy.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1045; Dec. Dig. § 258.]

      Appeal from Atascosa County Court; Walter E. Jones, Judge.
    Action by W. M. Goins against T. H. Zanderson and others. Plaintiff having recovered on a claimant’s bond in a justice court, defendants appealed to the county court, where claimant Zanderson recovered a judgment for the foreclosure of his landlord’s lien against the defendant in execution, and against plaintiff for costs, and plaintiff appeals.
    Reversed and rendered.
    W. M. Abernethy, of Jourdanton, for appellant.

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

   MOURSUND, J.

Certain personal property in the hands of Lon W. Marshall having been levied upon by the constable of precinct No. 1 of Atascosa county by virtue of an execution issued upon a judgment for $2,226 in favor of appellant and against said Marshall, T. H. Zanderson presented to the constable a claimant’s oath and bond. The property having been valued by the constable at $100, the oath and bond of claimant Zan-derson was filed in justice’s court of precinct No. 1. In the justice’s court plaintiff obtained judgment for $100, with interest at the rate of 6 per cent, from date of the claimant’s oath and' bond, and for 10 per cent, on the $100 judgment as damages. Defendants appealed to the county court, and, upon a trial before the court, defendant Zan-derson recovered a judgment for the foreclosure of his lien as landlord to Lon W. Marshall, defendant in execution, and against plaintiff, Goins, for all costs of suit. Plaintiff appealed.

Zanderson claimed a statutory landlord’s lien upon the property on account of having advanced the money with which the same was purchased, such advancement having been made for the purpose of enabling Marshall to make a crop upon land rented from Zanderson. Appellant excepted to Zander-son’s answer, on the ground that same did not show such rights in the property as entitled him to the immediate and unqualified possession thereof, but merely showed that' the property was purchased by Marshall with' money advanced by Zanderson. The pleadings merely show that Zanderson claims a lien upon the property, and it is well settled that the statutory remedy of trial of the right of property is not the proper remedy to use in asserting a lien upon property levied upon by virtue of an execution, unless such lien-holder is in possession of the property at the time of the levy. White v. Jacobs, 66 Tex. 462, 1 S. W. 344; Wheeler v. Wooten, 27 Tex. 257; Adoue v. Seeligson, 54 Tex. 593; Wright v. Henderson, 12 Tex. 43; Belt v. Raguet, 27 Tex. 471; Wootton v. Wheeler, 22 Tex. 338; Raysor v. Reid & Smith, 55 Tex. 266; Nat’l Bank of Cleburne v. Bank, 41 Tex. Civ. App. 535, 93 S. W. 209; Evans v. Groesbeck, 42 Tex. Civ. App. 43, 93 S. W. 1005. We therefore conclude that, were it admitted that Zanderson had a landlord’s lien upon the property levied upon, such lien could not be asserted and foreclosed in the character of action instituted by him, and that his pleadings showed no defense to plaintiff’s suit.

The judgment of the trial court is therefore reversed, and judgment here rendered that appellant recover of appellee and his sureties upon the claimant’s bond the sum of $100, with interest thereon at the rate of 6 per cent, per annum from March 3, 1913, as well as for $10 additional, being 10 per cent, of the value of the property, which sum is allowed as damages.


author: PLY, C. J.

text:
    NIAGARA FIRE INS. CO. v. MITCHELL.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1914.
    Rehearing Denied March 18, 1914.)
    1. INSURANCE (§ 230*) — Cancellation — Return- of Unearned Premiums — Necessity.
    Under a provision of a fire insurance policy authorizing cancellation of the policy by the company at any time by giving notice, and providing that the unearned premium should be returned, a legal tender of the amount of the unearned premiums, unless waived by the insured, is essential to a valid cancellation; the notice without the tender not being sufficient.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 509-512; Dec. Dig. § 230.*]
    2. Insurance (§ 230*) — Cancellation — Repayment of Unearned Premiums.
    A fire policy authorized the cancellation by the insurer at any time upon notice, and provided that the unearned premium should be returned. An agent of the insurer notified the insured of the intention to cancel the policy, and tendered a check for the unearned premium, which was refused by the insured, on the ground that he wanted the money. Later the company mailed a notice and inclosed an express money order, which was not replied to by the insured, and he retained the money order until after the property burned, when it was returned to the company by his attorney. Held, that there was no waiver by the insured of his right under the policy to receive legal tender for the unearned premium.
    [Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 509-512; Dec. Dig. § 230.*]
    Appeal from Hidalgo County Court; James H. Edwards, Judge.
    Action by T. W. Mitchell against the Niagara Pire Insurance Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. Alexander Wheless, of Mercedes, and Rich & Searle, of Brownsville, for appellee.
   PLY, C. J.

Appellee sued appellant to recover on a fire insurance policy for $1,000, of which sum $500 was on a one-story frame building, and the other $500 on a store, office furniture, and fixtures, and recovered judgment for the amount sued for. The property was consumed by fire on April 7, 1913. On March 15, 1913, the agent of appellant told appellee that his principal had ordered him to cancel the policy, and tendered him a check for the unearned premium. Appellee refused the check, and told the agent he would not accept a check for the unearned premium. On March 21st appellee received a letter from Trezevant & Cochran, of Dallas, general agents of appellant, giving notice of the cancellation of the policy, and inclosing an express money order for the unearned premium. That express order was retained by appellee until after the fire, when it was returned by appellee’s attorney to the makers thereof. The letter was not answered.

The policy provided that it “shall he canceled at any time at the request of the insured, or by the company by giving five days’ notice of such cancellation.” In another sentence, immediately following the foregoing sentence, provision is made for the return of the unearned premium “on surrender of this policy or last renewal.” It is the contention of appellant that under the terms of the policy the notice cancels the policy, although not accompanied with a legal tender of the unearned portion. The contrary has recently been held by this court. Polemanakos v. Insurance Co., 160 S. W. 1134. In that case it was held that, “unless waived, the repayment of the proper proportion of the premium is essential to a valid cancellation and notice without such repayment, or a tender of the amount is ineffectual.” A long list of authorities was cited. It is stated in that opinion that there were three federal court decisions, a New Jersey case, an Ohio case, and an Illinois case, to which may be added an Iowa case, cited by appellant, that stated a contrary rule; but the overwhelming weight of authority sustains the decision of this court. The Texas cases are in accord with it. Phœnix Assurance Co. v. Manufacturing Co., 92 Tex. 297, 49 S. W. 222; Fire Ins. Co. v. Cameron, 18 Tex. Civ. App. 237, 46 S. W. 158.

Another contention of appellant is that the retention by appellee of the express order, without notifying appellant that he would not accept anything but money in payment of the unearned premium, estopped him from claiming that there was no legal tender of the unearned premium. We do not think the proposition sound. When a check was offered to appellee by the agent at the time the first notice was given, he told the agent that he would not accept any check in payment of the unearned premium, not because the cheek was not good, but because he wanted the money. No tender of money was made. The facts of this case easily distinguish it from the case of Lampasas Hotel Co. v. Insurance Co., 17 Tex. Civ. App. 615, 43 S. W. 1081, decided by this court. In that case there was no objection to the check, and the insured treated the cancellation as an accomplished fact, and it was held that a legal tender had been waived. The insured was in the insurance business, and fully acquainted with the terms of the policy in regard to cancellations. There is nothing in this case evidencing the waiver of a legal tender, unless it was the retention of the express order until after the fire, and we do not think that was sufficient to show a waiver, when appellee had distinctly informed appellant that he would not accept any cheek for the unearned premium. Appellee did not consider that his policy was canceled. There must be a meeting of the minds of insurer and insured as to the fact of cancellation of the policy in order to create a waiver of actual tender of the unearned premium. Appellee at no time admitted by word or act that the policy was canceled. There was no actual return or tender of (the proportionate part of the premium, and there was no waiver of such return or tender.

The judgment is affirmed.