author: HIGGINS, J.

text:
    ÆTNA LIFE INS. CO. v. EL PASO ELECTRIC RY. CO.
    (No. 526.)

    (Court of Civil Appeals of Texas. El Paso.
    March 10, 1916.
    Rehearing Denied March 30, 1916.)
    1. Insurance <&wkey;435 — Casualty Insurance —Construction oe Contract — Risk.
    Under an employer’s .liability policy issued to an engineering corporation and to plaintiff electric railway company, including under a description of tie business “track and overhead ■construction work, including the operation pf work cars,” where an employé, while engaged in repair work for the engineering company under an agreement between the two companies, was injured when a tower car, standing on or near the street car tracks, was run into by a street car as the result of the motorman’s negligence, and had recovered of the street railway on the theory that he was its employé at the. time of his injury, the loss sustained by the injury was within the terms of the policy; as the risk was not limited to injury “by reason of” overhead construction work, but extended to perils necessarily incident to such work.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1144; Dec. Dig. <&wkey;>435.]
    2. INSURANCE <&wkey;146(3) — Construction oe Contract.
    A contract of insurance will be construed strictly against the insurer and liberally in favor of the insured, and, if the words admit of two constructions, the one most favorable to the insured will be adopted.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 295; Dec. Dig. &wkey;3146(3).]
    3. Insurance <®=»435 — Employer's Liability Insurance — Construction.
    Under a provision in an employer’s liability policy issued to a street railway and to an engineering company, providing that claims arising by reason of injury to. or the death of persons whose compensation is excluded were not covered, it was immaterial whether an injured employé was in the employ of the railway.or the engineering company at the time of his injury, and that the compensation. of the negligent motorman was not included in the policy, as. the clause is not limited to cases in which injury is caused “by” persons included in the policy, but covers injury “to” such persons.
    [Ed. Note — For other cases, see Insurance, Cent. Dig. § 1144; Dee. Dig. ®^>435.]
    4. Insurance @=3640(1) — Defenses—Pleading.
    In such case, any defense available under such provision was an affirmative defense which it was necessary to plead.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1554, 1609-1612, 1614, 1616, 1622-1624; Dec. Dig. &wkey;640(l).]
    5. Insurance <&wkey;598 — Amount of Recovery —Interest.
    Under an employer’s liability policy, not providing for the payment of interest, the insured, recovering for a loss sustained by payment of a judgment for an injury to its employé, was entitled to interest on its judgment from the date of the employe’s judgment against it, rather than from the date of its payment thereof. "
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1494; Dec. Dig. <&wkey;598.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by the El Paso Electric Railway Company against the -¿Etna Life Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Beall & Kemp and C. W. C'room, all of El Paso, for appellant. Baker, Botts, Parker & Garwood, of Houston, and Davis & Goggin, of El Paso, for appellee.

      Application for writ of error pending in Supreme Court.

   HIGGINS, J.

Appellant issued an “employer’s liability policy” of insurance, where- . by, with certain exceptions not necessary here to mention, it agreed—

“to indemnify the assured described in the warranties hereof, within the amounts so expressed herein, against loss and/or expense arising or resulting from claims upon the assured for damages on account of bodily injuries and/or death accidentally suffered, or alleged to have been suffered, by an employé or employés of the assured as provided in said warranties, by reason of the business as described and conducted at the location named therein, whether said injuries and/or death are accidentally suffered, or alleged to have been suffered, at the locations named or elsewhere.”

Warranties 1 and 4 read:

“1. Name of assured: Stone & Webster Engineering Corp. or El Paso Electric Railway Co.”
“4. Classified description of the business: All operations incidental to the following business, in and during the continuance hereof. Track and overhead construction work including the operation of work cars.”

The policy also contains these provisions:

“It is hereby understood and agreed that from noon, October 5, 1909, this policy, subject to its terms, conditions and agreements, covers the interests of the Stone & Webster Engineering Corporation and or El Paso Electric Railway Company and Petrolithic and Construction Company and El Paso & Juarez Traction Company.
“Upon the occurrence of an accident covered by this policy the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company or its duly authorized agent. If a claim is made on account of such accident the assured shall give like notice thereof in full particulars. The assured shall at all times render to the company all co-operation and assistance in his power.
“If suit is brought against the assured to enforce a claim for damages covered by this policy, he shall immediately forward to the company every summons or other process as soon as the same shall have been served on him, and the company will, at its own cost, defend such suit in the name and on behalf of the assured.
“The assured, whenever requested by the company, shall aid in effecting settlements, securing information and evidence, the attendance of witnesses and in prosecuting appeals, but the assured shall not voluntarily assume any liability or interfere in any negotiation for settlement, or in any legal proceeding, or incur any expense, or settle any claim, except at his own cost, without the written consent of the company previously given, except that the assured may provide at the company’s expense such immediate surgical relief as is imperative at the time of the accident.
“N. The company’s liability for loss on account of an accident resulting in bodily injuries to or in the death of one person is limited to ten thousand ($10,000.00) dollars, and, subject to the same limit for each person, the company’s total liability for loss on account of any one accident resulting in bodily injuries to or in the death of more than one person is limited to twenty thousand ($20,000.00) dollars. The company, will, however, as provided in conditions ‘D’ and ‘E’ hereof, pay the expense of litigation in addition to the sum herein limited, provided that if the company shall elect to pay the assured the sum as herein limited, it shall not be liable for further expense of litigation after such payment shall have been made.
“D. No action shall lie against the company to recover for any loss and/or expense under this policy unless it shall be brought by the assured for loss and/or expense actually sustained and paid in money by him after actual trial of the issue, nor unless such action is brought within two years after payment of such loss and/or expense.”

During the life of the policy, one Shaklee and a fellow workman, named Judia, while engaged in overhead construction work upon appellees’ electric railway line in the city of El Paso, sustained severe bodily injuries. Shaklee filed suit against appellee to recover damages resulting from such injuries. A judgment in his favor was rendered on September 26, 1910, in sum of $12,500, which, upon appeal, was affirmed. On November 6, 1911, appellee paid the sum of $13,345 in settlement of the principal and interest due on such judgment, and the further sum of $72.-35 costs of court. Appellant, having failed to indemnify appellee for any loss and expense incurred incident to the injuries sustained by Shaklee, filed this suit to recover upon aforementioned policy of insurance.

Under the view which we have of this case, it becomes unnecessary to discuss in detail appellant’s assignments, and for the same reason it is unnecessary to in detail state the issues raised by the pleadings and findings of the jury upon the special issues submitted to them. The facts, only, will be stated pertinent to what is considered to be the controlling issue in the case.

The evidence shows that, upon the happening of the accident, written notice was immediately given the insurance company of the accident, with all the information obtainable at the time, and, upon the filing of the suit by Shaklee, the street railway company gave notice of that fact with full particulars, sending the citation to the representatives of the insurance company as soon as the same was served, and demanded of the insurance company that it perform its obligations under the policy, and defend at its own cost, the suit which had been instituted against the assured. Some time after the receipt of these notices, the insurance company denied its liability, claiming the policy did not cover accidents of this character, because the accident was not one incident to or arising out of “overhead construction and reconstruction work,” but arose from a distinct and independent cause, that is, from the negligence of the street car company’s motorman, operating a street car, which accident was not contemplated or covered by the policy, not being in any way due to the work being carried on. In reply to this contention, the street car company insisted the policy did in fact cover the accident, and that the insurance company should comply with its terms. The insurance company thereafter sent its representative from Dallas to El Paso, who, on reaching El Paso, made investigation, consulted with the attorneys for the insurance company, and also with the officials of the street railway company, and the Stone & Webster Engineering Corporation, and, while at El Paso, compromised and settled with Judia his claim growing out of the same accident. Thereafter, the papers in the Shak-lee case were placed in the hands of the attorneys for the insurance company, who took charge of the case, carried on negotiations with Shaklee and his attorneys, seeking a compromise and settlement for $6,000. This proposed settlement, however, was rejected by the home office of the insurance company, and later, some time in June or July, 1910,. the insurance company took the position that the policy did not cover, and the papers were returned. The street car company, though still insisting that the policy covered and the insurance company was liable, had its attorneys take charge of and defend the Shaklee case.

It appears that the El Paso Electric Railway Company and Stone & Webster Engineering Corporation are separate corporate entities, but with close business relations. The former owns and operates an electric street railway line in El Paso. The latter is a repairing and construction company. The Stone & Webster Corporation did all, or nearly all, of the construction work for the railway company. Shaklee was a regular employé of the railway company, but at the time of the injury to him was on the pay roll of the construction company. His status at such time towards the two corporations is disclosed by the testimony which we now quote. Mr. Potter, the general manager of appellee, testified:

“I know how this overhead construction work is done, and how we pay our men. The men engaged in overhead construction work are paid by Stone & Webster Engineering Corporation. Whenever our employes work for the Stone & Webster Engineering Corporation, they are paid by them .and it is charged up to us in the whole charge, charged up plus a percentage for doing the work. They pay the men, then we repay them for the work done. We pay them the whole charge plus a percentage, which includes the wages of the men. That was the method of doing business at the time Shaklee was injured, .and is still. * * * Shaklee was working for the Stone & Webster Engineering Corporation at that time. He was sent out by the Stone & Webster Corporation to do certain repair work on the El Paso Electric Railway Company’s trolley, and he was mounted up there on a wagon doing repair work when a passenger car of the El Paso Electric Railway Company struck the wagon. * * * We would pay the Stone & Webster Engineering Corporation for doing any work the cost of the job. plus a certain percentage as profit. * * * So far as the work that Shaklee and Judia were doing at that time, they were serving Stone & Webster people and were being paid by them. They were working for the Stone & Webster Engineering Corporation at the time of the accident and on its pay roll. At that time Mr. Shaklee was not drawing double pay from the Stone & Webster Engineering Corporation and the El Paso Electric Railway Company. We were not paying on behalf of the El Paso Electric Railway Company at that time for the days he was working for the Stone & Webster Engineering Company. Shaklee might have been working for the El Paso Electric Railway Company in the morning of the day he was hurt, but at the time he was doing this work he was working for the Stone & Webster Engineering Corporation. * * * The labor or help used by the Stone & Webster Engineering Corporation was furnished to them by the El Paso Electric Railway Company, and the labor was paid for out of funds furnished to Stone & Webster Corporation by the El Paso Electric Railway Company.”

Mr. Judd, the assistant treasurer of appel-lee, testified:

“I was acting in this capacity during the month of February, 1910, at the time of the accident and injury to Shaklee .and Judia. I am acquainted with Mr. J. E. Wilson. He is the line foreman for the El Paso Electric Railway Company, and was serving as line foreman for the El Paso Electric Railway Company in 1910. On February 3, 1910, Mr. Wilson was working for the El Paso Electric Railway Company, and the El Paso Electric Railway Company paid him for his services for that time. This time sheet is the information on which I issued his time check, of his pay for that day. I was acquainted with the Stone & Webster Engineering Corporation. The Stone & Webster Engineering Corporation handled the construction for the El Paso Electric Railway Company, nearly all of it; I would say nearly all of the construction of the El Paso Electric Railway Company. They do general construction work, but not small construction jobs that might be performed by the local operating company. In reference to how that matter is handled with Stone & Webser Company, a contract with them to perform certain work for us, they are to have charge of the work, we are to advance them money to carry on this work, and they render us a daily statement of the actual expenditures, plus 10 per cent., or whatever the contract calls for, as compensation to them for carrying on the work. The money is advanced to them out of the funds of the El Paso Electric Railway Company. Generally, Stone & Webster Engineering Corporation have their own employés to do their work, but in this particular case, inasmuch as we have an organization for overhead work and they had none, they called upon us to supply them men to do that work. The El Paso Electric Railway Company furnished them with help for overhead work, and they supervise the work, and pay for the work out of the funds advanced them by the El Paso Electric Railway Company, and they receive from the El Paso Electric Railway Company a compensation or profit of 10 per cent, for handling the job.”

Mr. Wilson, line foreman for appellee on February 3, 1910, testified:

“As I recollect it, Stone & Webster Engineering Corporation was doing some double-tracking that day on West Rio Grande street just north of Oregon. Whether the other bunch was working I don’t know. They generally had two or three. I don’t recollect where they were working. Judia and Shaklee were working on West Rio Grande street just off of Oregon. They were using the tower wagon belonging to the El Paso Electric Railway Company on this double track just off of Oregon street. I think that the injury occurred to Shaklee and Judia about 5 o’clock in the afternoon. I believe somebody called my attention to seeing an ear off up there. It was about two blocks from where this ear was off to where Shaklee and Judia were engaged in the double-track work. It was my duty to look after the repair work such as replacing of that ear at that time. When I heard that this ear was off, I told Ju-dia and Shaklee to go up there and fix it. I did not see them go up there, I went back down town.”

Shaklee and. Judia were injured under the following circumstances: The parties mentioned, at the time, were on a “tower wagon” owned by appellee, standing on or near the street car track. They were engaged in repairing or replacing an “ear” which had been torn from one of the overhead trolley lines of appellee. While so doing, a street car of appellee ran into the wagon and precipitated Shaklee and Judia to the ground, in consequence whereof their injuries resulted. The motorman of the car, an employe of appellee, was guilty of negligence in running into the wagon, and the accident was caused by his negligence. In Shaklee’s suit he recovered of appellee upon the theory that he was an employs of appellee at the time of his injury.

Under the facts detailed, we are of opinion that the loss sustained by appellee through the Shaklee injury was clearly covered by and within the terms of the policy sued upon. No judgment could properly have been rendered except in favor of appellee, and a peremptory instruction to that effect would have been appropriate.

Appellant insists that under the terms of its contract the peril insured against was an accident occurring by reason of overhead construction work, and, since the accident was the direct and proximate result of the motorman’s negligence, it is not liable. In our judgment, this is a narrow and strained construction to place upon the language of the contract. In construing a contract of insurance, it will be construed strictly against the insurer and liberally in favor of the assured, and if the words admit of two constructions, that will be adopted most favorable to the insured. Brown v. Insurance Go., 89 Tex. 590, 35 S. W. 1060; Goddard v. Insurance Co., 67 Tex. 71, 1 S. W. 906, 60 Am. Rep. 1; Insurance Go. v. Dyche, 163 Ky. 271, 173 S. W. 785; Insurance Co. v. Gordon, 68 Tex. 144, 3 S. W. 718; Fireman’s Fund v. Shearman, 20 Tex. Civ. App. 344, 50 S. W. 598; Hoven v. Assur. Corp., 93 Wis. 201, 67 N. W. 46, 32 L. R. A. 388.

The peril to those engaged in overhead construction work, arising from the negligent operation of cars by employés of appellee, was necessarily incident to such work. To limit the liability of appellant to those accidents which occurred exclusively and solely by reason of overhead construction work would narro-w its application so as to exempt the insurer from liability in practically every case where a cause of action would arise in favor of the injured one and would render the contract well nigh meaningless. A cause of action would never arise except in eases where the negligence of the company, its agents or employés, was a direct and proximate cause of the injury. To permit appellant to escape liability in the case of injury to one engaged in overhead construction, upon the ground alone that such negligence was a direct- and proximate cause of the injury, would completely nullify the contract whidh it had issued. In the present case, the fact that Shaklee was engaged in overhead construction work was a direct and proximate cause of his injury, équally with that of the motorman’s negligence. It was by reason of liis engagement in overhead construction work that a combination of circumstances arose that resulted in his injury. If he had not been so engaged at the time the motorman negligently ran into the “tower wagon,” the accident would not have occurred. We think the circumstances under which the accident occurred bring the case clearly within the terms of the policy. See Hoven v. Assur. Corp., 93 Wis. 201, 67 N. W. 46, 32 B. R. A. 388. But if it be not clearly within the same, then it must be admitted that it is not incapable of such construction, and, under the rule of interpretation to which allusion has been made, the doubt must be resolved against appellant.

There is a provision in the contract that “claims arising by reason of injuries and/or death to persons whose compensation is excluded herein are not covered,” and by virtue of this clause it seems to be contended under the fourth assignment that the policy did not cover the Shaklee injury, because at th-e time of the accident to Shaklee he was neither employed by nor was he upon the pay roll of appellee. The language of the contract is very peculiar. It is quoted in the first paragraph of this opinion. In effect, it insured appellee and the Stone & Webster Corporation, jointly and severally, against loss arising or resulting from damage claims of those employed by either of' the parties, or both o.f them. Under the contract .as drawn, it is of no importance in the employment of which of the two an injured employs might be held to be at the time of the injury. It makes no difference upon whose pay roll Shaklee was at the time of the injury and whose employé he was. It was either appellee or Stone & Webster Corporation, and this was sufficient.

Some point also seems to be made, under the last-quoted provision, of the fact that the compensation of the negligent motorman was not included in the policy. This is of no importance. The cause does not stipulate that it only covers cases in which the injury is caused “by” persons included in the policy, but covers injuries “to” such persons.

Furthermore, if any defense was available, under this clause, based upon any failure to include compensation in the contract, as a basis for the premium paid, it was an affirmative defense which it was necessary to plead. See Ginners, etc., v. Wiley & House, 147 S. W. 029, and cases there cited.

Under the sixth assignment, it is asserted the court erred in rendering judgment for an amount in the sum of $10,000 plus interest from September 25, 1910 (the date of the Shaklee judgment), until June 10, 1915, the date of the judgment in the instant case. It is contended that, as the policy did not provide for the payment of interest, the assured was not entitled to interest on any sum until the payment was actually made by it on November 6, 1911.

No such assignment was filed in the lower court, and the question is here raised for the first time. It may be doubted whether this presents such an error in law apparent upon the face of the record as would authorize this court to take cognizance thereof in the absence of a proper assignment filed in the court below. Searcy v. Grant, 90 Tex. 97, 37 S. W. 320; Houston Oil Go. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Oar v. Davis, 105 Tex. 479, 151 S. W. 794; Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242; City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518. But, be this as it may, the assignment should be overruled. The authorities are in conflict as to the propriety under such contracts of allowing interest from the date the injured party recovers his judgment. It will serve no useful purpose to review the cases. The better rule, we think, allows such interest. In the case of Aetna Life Ins. Co. v. Bowling Green Gas Co., 150 Ky. 732, 150 S. W. 994, 43 L. R. A. (N. S.) 1128, a like contract was considered by the Kentucky Court of Appeals, and it was there held that interest was recoverable as an expense of litigation. Our views cannot be better stated than is done by the opinion rendered in that case, from which the following quotation is made:

“The substance of the contract on the point under consideration is that the insurance company will pay $5,000, and, in addition thereto, all cost and expenses of litigation, unless it elects to pay the $5,000 and settle without litigation any claim asserted against the assured. If it does so elect, then, in the words of the contract, ‘it shall not be liable for further expense of litigation after such payment shall have been made.’ This being our construction of the policy, it follows that, if the words ‘expense of litigation’ fairly include interest, damages, and cost, the insurance company must pay the amounts adjudged against it. Counsel for appellant contends that the words ‘expense of litigation’ do not include any of the items we have mentioned, and should be confined to the payment of attorney fees, obtaining witnesses, securing bonds, and other like expense incident to this class of suits; but to give the policy this construction would be to ignore, for the benefit of the insurance company, and to the prejudice of the assured, stipulations in the contract that are equally as binding upon it as the one fixing its liability at $5,000.
“The liability of the company is to be measured by all of the undertakings of the policy, and not alone by one. The policy should be construed as a whole, and effect given to all of its-provisions, and, when so construed, the liability of the insurance company is not limited to $5,000, nor are the words ‘expense of litigation’ to be confined to the items of expense indicated by counsel. That $5,000 was not intended by the policy to be the full extent of the liability is made plain by the condition obligating it to-pay, in addition to this, ‘the expense of litigation,’ and, when its agreement to pay the expense of litigation is considered in connection with the unlimited control of the litigation conferred upon it by clauses D and B, its liability for the expense of litigation should be made broad enough to fairly cover all of the expense incurred in the litigation that it compelled the assured to engage in. The insurance company had the undoubted right to compel the assured, against his will, to engage in litigation, or else forfeit the right to any part of the indemnity he had contracted for, and as it could, by electing to insist on litigation, burden the assured, against his consent, with tire cost and expense of a lawsuit, the provisions of the policy should be liberally construed for his benefit. We think the words ‘expense of litigation’ embrace all the expenses that the assured was put to by the litigation, including costs, damages, and interest on $5,000, and this construction is supported bv the cases of Insurance Go. v. Henderson Cotton Mills, 120 Ky. 218, 85 S. W. 1090, 117 Am. St. Rep. 585, 9 Ann. Cas. 162; Southern Ry. News Co. v. Insurance Co., 83 S. W. 620, 26 Ky. Law Rep. 1217; Fidelity, etc., v. Southern Ry. Co., 101 S. W. 900, 31 Ky. Law Rep. 55; Cudahy Packing Co. v. New Amsterdam Casualty Co. (C. C.) 132 Fed. 623. Although a different conclusion was reached in the construction of somewhat similar policies in Davison v. Maryland Cas. Co., 197 Mass. 167, 83 N. B. 407; National & Providence Mills v. Frankfort Marine Ins. Co., 28 R. I. 126, 66 Atl. 58 ; Maryland Casualty Co. v. Elec. Co., 157 Be<3. 514, 85 C. C. A. 106. We are unable to perceive upon what reasonable theory the words ‘expense of litigation’ should be limited to one part of the expense more than another, or why they should be held to include cost incurred in litigation and not interest or damages incurred in it. The damages that the assured incurred m appealing the case and the interest on the $5,000 that accrued pending the appeal are as much a part of the expense of litigation as the court costs. No sound distinction can be made between these items of expense. Certain it is tlíat the assured was compelled to pay' on account of this litigation the court costs, the damages, and the interest on $5,000 from the date of the judgment in the lower court, no part of which it would have been required to pay except for the litigation.
“An attempt, however, is made to distinguish between the items of damage and cost and the item of interest, and the argument is made that as the assured had the use of the $5,000 during the appeal, and as this use was worth the interest, therefore this should not be accounted an expense, as the assured did not lose anything by paying the interest. But this argument overlooks the fact that the assured had to pay to the claimant the interest it now demands, and, unless it recovers it from the insurance company, it will be out this item of expense incurred by the litigation. If the insurance company had paid the $5,000 when the judgment was rendered in the lower court, at which time the claimant first became entitled to interest, that would have ended its liability under the policy. But this it refused to do, and now, unless it pays the interest that accrued on this $5,000 after that time and pending the appeal, the assured will lose it. The fact that the assured had the use of the $5,000 pending the appeal has nothing to do with who shall pay this interest; but, if it did, the parties would be on an equal footing, because the ^insurance company also had the use of the $5,000 during the appeal. It is simply a question of which one should bear this item of expense, and we think the insurance company should.”

See, also, Cannon, etc., v. Employer’s Indemnity Co., 161 N. C. 19, 76 S. B. 536, Ann. Cas. 1914D, 1095.

Finding no error, the judgment is affirmed.
      <g^jPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    MILES v. BODENHEIM et al.
    (No. 1575.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 18, 1916.
    Rehearing Denied March 2, 1916.)
    1. Easements <&wkey;61(9) — Action to Enjoin Obstbuction — Evidence.
    Evidence, in an action to restrain defendant from closing an alley or way used by plaintiffs in reaching their residence premises, held to make a case of probable right in plaintiffs to the relief sought.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 143; Dec. Dig. <&wkey;61(9).]
    2. Injunction &wkey;>l’52 — Obstruction oe Easement — Discretion oe Trial Court.
    In such case, it should not be said that the trial court abused his discretion in granting a temporary injunction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 337, 343; Dec. Dig. &wkey;152.]
    3. Evidence <&wkey;317(5) — Hearsay.
    In an action to restrain the closing an alley or way used by plaintiffs to reach their residence premises, where plaintiff had purchased from a former owner of the tract and defendant from his administratrix, testimony of the plaintiff that his grantor at the time of the sale said that there was to be an alley there, and that he wanted it always kept open, was not inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1178; Dec. Dig. &wkey;317(5).]
    4. Frauds, Statute oe ¡&wkey;60(l) — Parol Evidence — Establishment oe Easement.
    Such -testimony was not inadmissible as seeking to establish an easement by parol testimony.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 94; Dec. Dig. <&wkey;60(l).]
    5. Witnesses &wkey;>139(l) — Competency — Transactions with Decedent — “Party.”
    Such evidence was not inadmissible under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, providing that in actions against executors, administrators, etc., where a judgment may be rendered for or against them as such neither party shall he allowed to testify against the others as to any transaction with the testator, etc., unless called to testify thereto by the opposite party, since the administratrix of the plaintiff’s grantor, who conveyed to defendant, was not a “party” to the suit on the ground that the judgment for plaintiffs would bind her in defendant’s suit on her warranty.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 582; Dec. Dig. <i&wkey;139(l).
    For other definitions, see Words and Phrases, First and Second Series, Party.]
    6. Judgment <&wkey;>712 — Conclusiveness — Persons Not Parties — Record oe Former ■ Suit.
    In a suit against a warrantor on his covenant in a deed, the record of a suit between his vendee and a third party involving the title to the land conveyed, to which the warrantor was not a party and of which he was not notified and requested to defend, is not admissible as evidence that the recovery was under a paramount title, hut only to show eviction and the assertion of an adverse title.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1233; Dec. Dig. <&wkey;>712.]
    Appeal from District Court, Gregg County.
    Action for injunction by G. A. Bodenheim and another against C. E. Miles, Temporary injunction granted, and defendant appeals.
    Affirmed.

      This is an appeal, authorized by article 4644 et seq., Vernon’s Statutes, from a judgment granting a temporary injunction restraining appellant from closing an alley or way, hereinafter described, used by ap-pellees in reaching parts of the premises on which they, with their families, respectively resided in the city of Longview. It appears from the record that in July, 1905, G. A. Rogers and his wife owned a tract of 1% acres of land fronting west about 319 feet on Center street and north about 200 feet on College street in said city. A rough plat of the tract, showing it divided into three parts, is given below:

    At the time stated, the tract of land was inclosed by fences, except for an opening about 12 feet wide at its northeast comer, indicated by the dotted line on the plat. The parts of the tract were separated by fences constructed at points indicated by the inside straight lines on the plat. Rogers and his wife had lived in a house on the part of the tract marked “Miles,” and while living there so constructed the fences as to leave an open way about 12 feet wide between said part and the east line of the tract, which he used in going to and coming from College street to other parts of the tract. But, the house in which he had lived having been destroyed by fire, Rogers had constructed, and in July, 1905, was living in, a house on the part marked “Thompson,” and as an outlet from same to College street was using the open way mentioned and the extension of same along the east line of the part marked “Bo-denheim',” indicated by the dotted line. • By a deed dated July 3, 1905, Rogers and his wife conveyed the part (but not including the strip 12 feet wide east of the dotted line) marked “Bodenheim” to appellee G. A. Boden-heim; by a deed dated June 19, 1907, they conveyed the part marked “Thompson” to W. S. Thompson, who conveyed same to J. R. Rainey, who conveyed it to appellee K. S. Melton; and by a deed dated May 2, 1908, Rogers having died, his widow, as such and as administratrix of the community estate, conveyed the remainder of the tract, being the part marked “Miles,” and the open way about 12 feet wide from College street along the east line of the tract to the north line of the part marked “Thompson,” to appellant, C. F. Miles. Each of the deeds mentioned contained covenants of general warranty. The deed from Rogers and wife to Boden-heim, and the one from Rogers and wife to Thompson, but not the plat attached to it, were of record at the time the one to Miles was made; but in neither of them was any mention made of the alley or way in question.
    Appellee Bodenheim, as a witness for himself and Melton, testified, without objection, that he purchased the lot Rogers and wife conveyed to him as stated to build upon and use' as his home; that the alley or passway was then “where it is now and had no obstruction in it,” and was being used “for all purposes” by Rogers, who lived on the part of the tract marked “Thompson”; that it was “a plain roadway in there”; that after he purchased the lot he built a fence along its east line, separating the lot from the alley or way in question, providing in the fence two gates from his lot to the alley, and constructed a concrete curbing about 2 feet high along the line thereof on Center street; that he built a barn on the east end of the lot, with reference to the way to it from College street furnished by the alley, and without reference to a way to it from Center street; that he constructed on the west part of the lot, fronting Center street, a dwelling house about 75 feet wide, including a concrete walk 2 or 3 feet wide on each side of it; that he built cross-fences separating the front and rear parts of the lot, and planted and grew shrubbery and shade trees on said front part; that after improving the lot as stated he lived upon it and used the alley in question as a way for his employes, vehicles, cows, etc., to the east part thereof; and that to provide a way to that part of his lot from Center street it would be necessary for him to tear down and remove the concrete curbing along the west end of the lot and the cross-fences he had constructed, and cut down and remove some of his shrubbery and shade trees. Over appellant’s objection thereto on the ground that it “was hearsay, was a conversation with a dead man and warrantor to the title, and the defendant, Miles, had no notice of the conversation,” and “that it was seeking an easement by parol testimony which could only be conveyed by writing,” the court permitted Bodenheim to further testify as follows:
    “At the time I traded and got my deed from Mr. Rogers, I had a conversation with him with reference to that strip of ground. He very specifically stated that it was to be an alley in the first place. That he intended to live there, and did not have any idea at the time of making a change, and that he always wanted the alley kept open ■ so that anybody he should sell to should always have egress to the place; and I told him that I intended to build my home predicated on that alley entrance because I built it very wide as anybody can see, and every improvement I made clearly showed that I anticipated the alley being kept open on his say-so.”
    Bodenheim then further testified, without objection:
    “I did not understand that I was buying the alley. The understanding was that I was to have a right of way through there. Mr. Rogers said that strip was to be kept open, and there has never been any obstruction in it since that time.”
    And, cross-examined by appellant, he further testified;
    “One thing that prompted him (Rogers) to state specifically that the alley would be kept open was that he wanted access to his own property on the south side of me, and it was not for my convenience any more than it was for his own, as it was to protect himself and his property next door to me, that he left the alley open, and said it would remain open for the convenience of whoever' he might sell his place to. If he hadn’t done that, however, I would not have gone ahead and Built my house like I did, and I made, in fact, every improvement with the idea that the alley would remain open. I think that Mr. Rogers told me at the time that he wanted to sell that property next to me and that he wanted the alley left open so he could get to it. * * * When the deal was consummated, I had bought a lot between two lots owned by Mr. Roger's, and he retained a neck or little strip of land linking his two lots together at the rear of my lot, and he drove up pins and showed me where my lot came to. He retained that strip for the purpose of an alley for his use and my use also. I understand that he was reserving it for his own use and for my use also as an alley. It was my understanding that he wanted to make an alley out of it.”
    With reference to the use 'made of the alley, Bodenheim testified:
    “There are about three houses behind me that use it. Mr. G-ans has two residences on his property, and they use it, and Mr. Melton and I use it; that is four; and Mr. Cox, over on the east side, uses it.”
    Wm. S. Thompson, as a witness for ap-pellees, testified that Rogers was living on the part of the tract marked “Thompson” at the time he (witness) purchased it. Over appellant’s objection, on grounds similar to those made by him, as stated above, to testimony of appellee Bodenheim, the court permitted Thompson to further testify as follows:
    “Mr. Rogers showed me the place. There was an alley leading from this place, at the time I looked at it, out to College street, or the street that runs from the High School building west. I had a conversation with Mr. Rogers with reference to that, and the understanding was that it was to remain an alley there. Mr. Rogers stated to me that the alley should he kept open. He stated that to me at the time I was trading for the property, in connection with the sale of the property to me. I knew at that time that Mr. Rogers owned the other ground there between the place I was getting and College street, along which the alley ran.”
    Attached to, but not mentioned in, the deed to Thompson, as it was delivered to him, was a plat as follows:

    —with reference to which, without objection, he testified:
    “There is a pencil sketch attached to the deed, and Rogers evidently made it, as it is in his handwriting. * * * Mr. Rogers gave me the sketch attached to the deed because I requested it of him. My purpose in requesting it was to see the exact size of the lot, and I wanted to see that an alley would he shown on the sketch, and that it would be kept open, and that was Ms promise. * * * I don’t know that the plat is on record with the deed, but it was on then when the deed was recorded. * * * He (Rogers) gave me the sketch at the time he gave me the deed.”
    Thompson further testified, without objection, as follows:
    “I certainly bought the property with the understanding that the alley was to be kept open and not closed. There was no understanding that there would be a gate across it, or any obstruction of any bind. There were outhouses, barns, on the back of this place when I bought it, and they were built and situated so as to be used in connection with this alley. Though the alley was the only access for a buggy. * * * The place would not have suited me at all unless it had an alley, as I kept a horse and buggy, which was necessary in my business. I guess I would have made a difference of about $200 in the value of the place if it hadn’t had the alley.”
    Appellant testified that for two or three months, while Thompson and Bodenheim were living on the parts of the land respectively purchased by them, he lived on Center street; that his usual route from his home to town during that time carried him by the end of the alley, and that he knew it was there; that he “supposed that was an alley,” and “did not see any front entrance to Bo-denheim’s property nor to Melton’s property”; that, when he built a dwelling house on the land he purchased of Mrs. Rogers, he constructed his east fence at the place where the old fence was, “in such a way as to leave that alley open”; that he made no inquiry about the alley when he purchased; and that it was from an “inspection of the deeds” that he “ascertained that the alley,” quoting, “would be mine by purchase.”

      Beard & Davidson, of Marshall,' and Mc-Cord & Campbell, of Longview, for appellant. Xoung & Stinchcomb and Lacy & Bramlette, all of Longview, for appellees.
   WILLSON, C. J.

(after stating the facts as above). [1-6] As the cause is yet to be tried on its merits, we will not discuss the testimony, further than to say that the part of it set out in the statement made at least a case of probable right in appellees to the relief they sought. Harrison v. Boring, 44 Tex. 255; Smith v. Allen, 40 S. W. 204; Weynand v. Lutz, 29 S. W. 1097; Howell v. Estes, 71 Tex. 690, 12 S. W. 62; Mattes v. Franked, 157 N. Y. 603, 52 N. E. 585, 68 Am. St. Rep. 804; Insurance Co. v. Patterson, 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 550; Ellis v. Bassett, 128 Ind. 118, 27 N. E. 344, 25 Am. St. Rep. 421; Irvine v. McCreary (Ky.) 56 S. W. 966, 49 L. R. A. 417; Loan Co. v. Gordon, 54 Or. 147, 102 Pac. 736, 26 L. R. A. (N. S.) 331; Phillips v. Phillips, 48 Pa. 178, 86 Am. Dee. 577; Zell v. Society, 119 Pa. 390, 13 Atl. 447, 4 Am. St. Rep. 654; Rollo v. Nelson, 34 Utah, 116, 96 Pac. 263, 26 L. R. A. (N. S.) 315; City v. Kingsbury, 101 Ind. 200, 51 Am. Rep. 749; Parsons v. Johnson, 68 N. X. 62, 23 Am. Rep. 149; 14 Cyc. 1166 et seq.; 9 Ruling Case Law, 746 and 754, et seq. As it did, it should not be said that the judge abused the discretion he possessed when he granted the temporary injunction. Whitaker v. Hill, 179 S. W. 539. Whether the testimony, exclusive of the part thereof given by Bodenheim and Thompson, shown in the statement to have been admitted over appellant’s objection, made such a case or not, need not be determined, as we are of opinion that part should not have been excluded on any of the grounds urged to it. Of those grounds we think only the one based on the contention that the testimony objected to was inhibited by article 3690, Vernon’s Statutes, needs to be noticed. That article of the statutes is as follows:

“In actions bv or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

The theory on which appellant argues in support of his contention is that Mrs. Rogers, who conveyed to him, was a party to the suit within the meaning of the statute, because, he asserts, a judgment in appellees’ favor against him would bind her in a suit by him against her on her warranty. As we understand the law, the judgment in this suit, if against appellant, would not hind Mrs. Rogers. As said by the court in Sachse v. Loeb, 45 Tex. Civ. App. 536, 101 S. W. 450: ■

It is well-settled law that, in a suit against the warrantor on Ms covenant in a deed, the record of a suit between him, vendee, and a third party involving the title to the land conveyed to-which the warrantor was not a party, and of wMeh he was not notified and requested to defend, is not admissible as evidence to prove,, and does not establish, that the recovery therein was under a paramount title. In such case the record is only admissible to show eviction and the assertion of an adverse title.”

Bennett v. Virginia Ranch, Land & Cattle Co., 1 Tex. Civ. App. 321, 21 S. W. 127, relied on by appellant, does not support his contention, and does not announce a rule contrary to the one stated above. In that case the warrantor, not merely because of interest in the result, but because named as such, was a party to the suit. For that reason the court held 'he would be concluded by the judgment rendered. In this one, Mrs. Rogers was not named as a party, and a judgment against appellant would establish nothing as against her, except the fact that appellees had asserted and established as against appellant a right to use the alley as a way to their premises. It would not operate to prevent her from showing, if she could, if sued by appellant on her warranty, that there had been no breach of the covenant.

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


author: RASBURY, J.

text:
    YEATTS v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (No. 7433.)

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 5, 1916.
    On Rehearing, March 25, 1916.)
    1. Evidence &wkey;?477(2) — Opinion Evidence— Nonexperts — Apparent Sickness.
    Where a witness had testified that he had known the injured person for a long time, and had seen her during the trial, and that he was unable to see any difference in her health since the alleged injury, a question asked on cross-examination whether there was anything about her the day before that suggested that she was sick was not objectionable as calling for a conclusion, since a witness may state the apparent physical condition of a person or the existing state of apparent sickness or health.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2238; Dec. Dig. <5&wkey;477(2)J
    2. Appeal and Error l§=^1058(2) — Harmless Error — Exclusion of Evidence — Cure bv Subsequent Testimony.
    The error in excluding the answer to such question was rendered harmless where the same witness on recross-examination, in answer to a question whether the woman not only looked frail, but looked sick, stated that he had made no close examination; that he only saw her for a few seconds the day before.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4201; Dec. Dig. &wkey; 1058(2).]
    3. Appeal and Error &wkey;692(l) — Questions Presented for Review — Bills of Exceptions — Exclusion of Evidence.
    Assignments of error to the sustaining of objections to questions propounded to witnesses on direct examination will not be considered where the bills of exceptions supporting them do not show what testimony appellant expected to elicit hy the question.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2905, 2906; Dec. Dig. &wkey; 692(1).]
    4. Appeal and Error &wkey;>692(l) — Questions Presented FOR Review — Bills of Exceptions — Exclusion of Evidence.
    The rule that hills of exceptions to the exclusion of evidence must show the testimony expected to be elicited does not apply where questions were asked on cross-examination or where the motion to strike testimony was made.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2905, 2906; Dec. Dig. &wkey; 692(1).]
    5. Witnesses <&wkey;358 — Impeachment of Party — Reputation—Specific Acts.
    A witness who had testified to plaintiff's poor reputation for truth cannot be cross-examined as to whether plaintiff’s personal dealings with witness were fair, whether he knew of a single dishonest act by plaintiff, or whether so far as the witness’ personal knowledge was concerned, plaintiff was fair and square, since such questions are attempts to establish general reputation by proof of specific acts.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. &wkey;358.]
    6. Witnesses &wkey;>360 — Impeachment—Reputation — Rebuttal—Sources of Reports.
    Where witnesses who impeached plaintiff’s reputation for veracity had mentioned certain reports that plaintiff had burned buildings, plaintiff could not testify in rebuttal that those reports were circulated by persons who were his bitter enemies, though such enmity could be shown by other proof.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dec. Dig. &wkey;360.j
    On Rehearing.
    7. Appeal and Error <&wkey;882(9) — Review-Invited Error.
    Where plaintiff on cross-examination of witnesses who had impeached his reputation, elicited testimony as to particular incidents, he cannot complain that the court permitted the witnesses on redirect examination to give the details of those incidents.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3599; Dec. Dig. &wkey;>882(9).]
    8. Witnesses <&wkey;358 — Redirect Examination— Scope — Impeaching Witnesses.
    Under the right of a party on redirect examination of his witnesses to have matters brought out by cross-examination, but which the witness was not given an opportunity to explain fully detailed, an impeaching witness who was asked on cross-examination as to certain incidents effecting an adverse witness’ reputation may be re-examined as to details of those incidents.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. &wkey;358J
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    Action by Ed Yeatts against the St. Louis Southwestern Railway Company of Texas. Judgment for the defendant, and plaintiff appeals.
    Affirmed, and motion for rehearing denied.
    B. Q. Evans and H. L. Carpenter, both of Greenville, and L. C. Clifton, of McKinney, for appellant. E. B. Perkins, of Dallas, and Head, Dillard, Smith, Maxey & Head, .of Sherman, for appellee.

      Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellant sued appellee for damages for personal injuries to his wife. There was jury trial, resulting in verdict for appellee, followed by similar judgment, from which this appeal is prosecuted. Briefly stated, appellant’s testimony tended to show that prior to the time his wife was injured there was in the town of Josephine a concrete sidewalk maintained by the citizens extending north and south to appellee’s side and main tracks, which extended east and west through the towA. From the junction of the concrete walk with appellee’s tracks appellee built and maintained a sand and gravel walk across the tracks to a junction with its passenger platform. The height of the concrete walk, the gravel and sand extension, hnd the platform was uniform. This way was customarily used by the citizens of Josephine in going to and from ap-pellee’s station to the south portion of the town. Prior to the time appellant’s wife was injured appellee removed the sand and gravel constituting the portion of the walk between its main tracks, which were the tracks nearest its platform, and raised its tracks, which left its rails six or seven inches above the earth’s surface and the cross-ties 'one or two inches above such surface. Subsequent to all the foregoing, and on April 22, 1914, at 3:40 a. m., appellant and wife alighted from one of appellee’s passenger trains upon the unlighted platform and started in the usual way for their home south of the station. Appellant’s wife had no knowledge of the changed condition of the walk, and when she reached the rails she stepped between them placing her foot upon the edge of one of the exposed cross-ties, with the result that her foot turned, and she fell and was seriously injured.

Appellee’s testimony tended to sharply contradict appellant’s claims, and to show that appellant’s wife’s injuries were due to other causes. Appellee’s testimony also tended to show that the general reputation of the appellant, who was a witness to all the facts material to his recovery, for truth and veracity and honesty and fair dealing, was bad.

We deem the foregoing brief statement of the facts which the evidence will support sufficient, since all issues on appeal arise upon the admission or exclusion of testimony.

It is first urged that the court erred in refusing to permit the witness Abbott to answer a question propounded by appellant. Abbott was a witness for appellee, and on direct examination testified, in substance, that he had known appellant’s wife for 12 years prior t'o the trial, and had seen her during the trial, and that he was unable to see any difference in her appearance as to health or strength since the injury. On cross-examination the witness testified that, while appellant’s wife walked and got about ■“lively,” lie never did regard her as a robust, healthy woman, but that there was nothing in her appearance to suggest that she was ■“sick at all.”

Question: “Now, you saw her yesterday, and wifi you tell that jury that there was not anything about her that suggest[s] that she was sick yesterday?”

Had the witness been permitted to answer, appellant expected to prove by him that ’on the day inquired about appellant’s wife appeared pgle, emaciated, weak, and debilitated, with a loss of 20 or 25 pounds of flesh. However, upon objections by counsel that the question called for the opinion and conclusion of a nonexpert witness, the court excluded the answer, explaining in his qualification of the bill that the answer was not excluded on the ground that the witness could not testify as to the appearance of appellant’s wife, but because the question did not call for an answer concerning the appearance 'of appellant’s wife. The oft-stated rule under which it is urged the answer should have been admitted is that:

A nonexpert witness “may state the apparent physical condition of a man, * * * or as to what are more distinctly inferences from animate bodily phenomena, as the existence of a state of apparent sickness or disease. Such an observer may also state a change in apparent condition, whether the change is from sickness to health, or from health to sickness, or from bad to worse, or from worse to better. He may also infer and state that a person’s ability to help himself, or his faculties or the use of his limbs or other parts of his body, or his earning capacity has or has not been impaired.” 17 Oye.

To the same effect is Cunningham v. Neal, 49 Tex. Civ. App. 613, 109 S. W. 455, and cases cited, wherein the reasons for the rule are discussed. Consequently, under the broad and flexible rule stated, we are not prepared to say that the question was improper, or n'ot pertinent, as indicated by the court’s qualification. Certainly it was not improper, because the witness was a nonex-pert. Nor can it be said that the question was objectionable because it sought to elicit a conclusion 'or the opinion of the witness, since, based on the preceding testimony of the witness that he had seen appellant’s wife before and after the accident and had observed her condition on both occasions, he was qualified to state his conclusion or his opinion concerning her illness.

We conclude, however, that the court’s action was harmless, because the witness on recross-examination answered substantially the same question. The record discloses that after the court sustained the objection to the question the witness was again examined by appellee’s counsel, and in turn again examined by appellant’s counsel, when he, in substance, testified that appellant’s wife appeared to be physically weak and looked frail.

, Question: “I will ask you if she not only looks frail, but looks sick?” Answer: “I haven’t made any very dose observation, I was just in her presence a few seconds yesterday evening in the judge’s room.”

The question excluded was whether she looked sick yesterday. The question finally answered was that he did not know whether she looked sick or n'ot because when he saw her “yesterday” in the judge’s office it was only for a few moments, during which time he did not observe her closely. The answer of the witness to the last question was evidently the extent of his knowledge of the subject, since counsel did not pursue the examination further. That being true, and the question being so substantially similar to the one excluded, we are constrained to believe the court’s action was not reversible error.

The sec'ond, third, fourth, fifth, sixth, and seventh assignments of error relate to the exclusion of certain testimony tendered by appellant in rebuttal of certain facts attempted to be proven by appellee. To any consideration of the assignments appellee objects on the ground that the bills of exception supporting the assignments fail in each instance to state what the answer of the witness would have been to the questions propounded. The ground of the objection as relates to the sec'ond, third, fifth and seventh assignments-is sustained by the record, and the objection will be sustained for that reason. Becks v. Odom, 70 Tex. 186, 7 S. W. 702; Cunningham v. Austin & N. W. Ry. Co., 88 Tex. 534, 31 S. W. 629.

As to the fourth and sixth assignments the objection is overruled, since said assignments relate in the one instance to the refusal of the court to permit the witness to answer questions propounded on cross-examination and in the other to the exclusion 'of testimony. In such cases a different rule applies. Cunningham v. Austin, etc., supra; Long v. Red River Ry. Co., 85 S. W. 1048.

The next issue is the action of the court in refusing to permit the witness Reece to answer questions propounded by counsel for appellant. Reece was a witness for ap-pellee, and had testified that he had known appellant for more than 20 years, had had no personal difference with him, and was on friendly terms with him, but that the general reputation of appellant for truth and veracity and honesty and fair dealing was bad. Upon cross-examination, after probing the facts upon which the witness based his conclusion and eliciting from the witness that he could recall but one circumstance, counsel for appellant inquired:

“His dealings with you were fair and square, were they not?”

The witness was not permitted to answer, whereupon counsel for appellant further inquired :

“Do you know of a single dishonest act that he ever performed or committed?”

Again permission to answer was denied, whereupon counsel inquired:

“Now, Mr. Reece, is it not true that in all of your personal dealings with him for the length of time you have known him he always acted fair and square with you; so far as your personal knowledge is concerned, he is a square, honest man?”

Objection to this question was also sustained. The action of the court in all the matters stated was excepted to and is assigned as error.

We conclude that the court did not err in the respect stated. Appellee, in examining the witness, complied with the long-settled rule by proving appellant’s general reputation in the community where he was known for truth and honesty. 16 Cyc. 1275; Boon v. Weathered, 23 Tex. 678, a ruling case in this jurisdiction; M., K. & T. Ry. Co. of Texas v. Creason, 101 Tex. 335, 107 S. W. 527; Holsey v. State, 24 Tex. App. 35, 5 S. W. 523.

The generally approved method for meeting the attack upon his character was for the appellant, under the same rules that the testimony of appellee was admitted, to introduce evidence in rebuttal to sustain Ms general reputation. 16 Oyc. 1276. Some authorities go a step further, and hold that the person whose reputation is attacked may, on cross-examination, call for the particular charges made against the one sought to be impeached and for the persons who made them. 16 Cyc. 1280; Olhambeirlayne, Mod. Law Evidence, vol. 4, § 3314. Such cross-examination, however, according to the authority cited, is admitted for the purpose of testing the credibility and knowledge of the witness, and is justified on the ground that it may disclose both a lack of knowledge and fair-mindedness on the part of the impeaching witness. The latter authority, however, declares that the practice borders dangerously near the forbidden practice of proving reputation by specific acts, and by indirection at least disapproves the rule. It will thus be seen that the evidence that was sought to be elicited from the witness Reece was under the rules stated properly excluded, since its effect was to establish by specific acts general good reputation.

The next issue reviews the action of the court in excluding from the consideration of the jury a question propounded to appellant and his answer thereto. By certain of appellee’s witnesses it was shown that there were reports in circulation in Josephine that appellant had caused the burning of certain buildings, and while' appellant was testifying in rebuttal of said charges Ms counsel inquired, “I will ask if the men in Josephine talking about you burning these buildings were not your bitter enemies in that commuMty?” to which appellant answered, “Yes,” and which question and answer on motion of appellee were excluded. Appellant urges that such testimony was proper for the purpose of showing that those who circulated the reports were his bitter enemies. It is correct to say that animosity, enmity, or unfriendliness and consequent bias and hostility of witnesses may be shown when relevant; but not, however, by the naked declaration of the witness that animosity or enmity or unfriendliness in fact exists. Such was the effect of the excluded testimony, since it was unaccompanied by proof of any conduct or declarations of those so charged, upon which the jury could base a finding that such animosity, enmity, or unfriendliness in fact existed. Accordingly we conclude there was no error in the respect stated.

The eighth assignment of error complains of the refusal of the court to exclude certain testimony. Morrison, a witness, was sworn and examined by counsel for appellee ostensibly to prove that appellant’s reputation for truth and veracity and honesty and fair dealing was bad, but who, after much urging, testified it was reasonably good. Counsel for appellant, on cross-examination, drew from the witness that he had based Ms opinion concerning appellant’s reputation upon several incidents, among which were a “falling out” with a school-teacher, a cotton-weighing incident, a personal affray with a man named Coffman whom he whipped, and a report that he had set fire to a lumber yard, and also to the home of one Coffman. Appellant went into particulars or merits of most of the foregoing incidents, proving by the witness in reference to the “whipping” incident that appellant “gave Coffman a good thrashing.” On redirect examination counsel for appellee asked the witness if it was not a fact “that Yeatts went up to Coffman with a brick or rock when Coffman was not looking, * * * when he was not expecting anything,” to which the witness replied, “That is what Coffman said when he came out of the house,” which answer counsel requested the court to strike out' because it was improper to permit appellee “to go into the details of the difficulty.” The lower court declined the request as stated. We incline to the opinion that none of the specific acts upon wMch the witness based his opirnon was admissible, save, perhaps, as stated by the authorities cited, for the purpose of testing the knowledge and fairness of the impeaching witness. In the particular instance we are discussing the appellant alone had the right to exercise the privilege of inquring into the matter he did inquire into, and, having gone into the merits of the specific acts upon which the witness based his opinion, we think he is not in a position to complain. It was, in effect, so ruled in Freedman v. Bonner, 40 S. W. 47.

The tenth assignment raises a similar question, and it is overruled for the reasons just stated.

Finding no reversible error in the record, the judgment is affirmed.

On Rehearing.

Counsel for appellant earnestly insists that we erred in our disposition of every issue raised on appeal and ignored the most important tliereof. We have carefully considered the motion for rehearing, and, while the record, as is often the case, presents some difficulties, we conclude our former disposition of the case should stand. We will, however, discuss the ninth assignment of error, erroneously designated as “tenth” in our opinion, which was overruled, because it raised, in our opinion, issues similar to those discussed in disposing of the eighth assignment. As -will appear from our original opinion, appellee sought on direct examination to impeach appellant by its witness Morrison, but the witness finally testified that appellant’s general reputation for truth and veracity and honesty and fair dealing was reasonably good. On cross-examination counsel for appellant drew from the witness the several incidents recited in our discussion of the eighth assignment, and upon which the witness based his opinion that appellant’s general reputation was reasonably good. Among other questions asked was the following:

“There was one circumstance where he had a falling out with the teacher of the school? A. Yes; that was one.”

Following such answer counsel for appellant also drew from the witness the admission that he based his opinion concerning appellant’s general reputation upon four other separate and distinct incidents, inquiring into the details of some of them. On re-examination counsel for appellee interrogated the witness upon the incidents so introduced, and was permitted to propound to and receive from the witness the following question and answer, to wit:

“Now, the falling out there was something he had told — that he could have that woman meet him out at any time that he wanted to — some report that he had made reflecting on her character? A. Yes.”

The objection made before the witness answered, and afterwards on motion to strike out, was that, while it was proper to prove the incidents forming the basis of the opinion, the details could not be gone into, for the reason that, it would necessitate the securing of other witnesses to prove justification of the acts disclosed, and because immaterial, irrelevant, hearsay, and self-serving. Following the objection the witness further testified that it had been three of four years since the incident occurred, and that the young lady was still teaching there. We held in our original opinion that appellant only had the right to examine the witness concerning the facts upon which he based his conclusion concerning the general reputation of appellant, and having chosen to do so, and having drawn from the witness the incident detailed, he was not in a position to complain of the court in permitting appellee to develop the particulars- thereof. We then conceived, and do now, that such was the ruling in Freedman v. Bonner, 40 S. W. 47. In that case it is said by this court:

“The defendants,, on the original examination, only asked the witnesses Roberson and Gunn about the general reputation of McKinsey for truth and veracity in the neighborhood in which he lived or was best known; that the matters complained of were drawn out by plaintiffs’ counsel; and that defendants’ counsel only cross-examined the witnesses on the points thus drawn out. In such a case, while such matters were improper, and perhaps injurious, yet appellants have no ground of complaint.”

Aside from the fact that the error, if any, was initially introduced into the case by appellant, there is eminent authority for holding that such testimony was properly admitted. Mr. Jones, in his work on Evidence (section 864), declares it is the right of the one sought to be impeached to have the truth known, and for that reason he is entitled on cross-examination to demand of the witness fully the source of his information, and it was in the exercise of that right that counsel :£or appellant required Morrison to state the incident concerning the teacher. The same author on the same subject declares in section 871 that:

“After a witness has been cross-examined the next stage in the proceeding is his re-examination by the party calling Mm. The object of this examination is to allow the witness to explain or qualify his statements made in the cross-examination, and to give the details of transactions concerning which he has been cross-examined, but which, during such cross-examination, he had no opportunity to explain. ‘The counsel has a right, upon such re-examination, to ask all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive by which the witness was induced to use those expressions; but he has no right to go further and introduce matter, new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.’ Within its proper scope reexamination is a right, and not merely discretionary.”

Thus, when appellant surrendered the witness to appellee, he had an admission from him that his opinion in part had been based upon a certain incident, and under the authority cited appellee was entitled to inquire into the details of that particular incident.

The motion for rehearing is overruled.
      <&wkey;Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.

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author: HALL, J.

text:
    BAROUS v. PARLIN-ORENDORF IMPLEMENT CO. et al.
    (No. 901.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 1, 1916.
    Rehearing Denied March 29, 1916.)
    1. Venue <&wkey;22(l) — Privileges oe Defendants — Codeeendants.
    The W. Hardware Company sold its stock of merchandise to W. and P., receiving as part of the consideration a note for $4,000, and agreed to pay all indebtedness and claims against the merchandise, the contract further providing that the proceeds of the note must be applied to the payment of all such claims until they were fully liquidated. A creditor of the hardware company brought a suit in which other creditors joined, against B. and the members of the firm of W. and P., alleging that the note was executed and delivered to the members of the W. Co., to be held by them in trust for creditors; that it was transferred to B. for the fraudulent purpose of enabling his father-in-law, a member of the W. Co., to hinder, delay, and defeat his creditors, and that he held it under an express trust for the benefit of creditors. Judgment was asked against W. and P. for the amount of the note, and the court was asked to order the amount recovered prorated among the creditors. Only one member of the W. Co. was made a party and he was not cited. Held, that where B. filed a plea of privilege presenting a special exception to sustain which no evidence was introduced, the overruling of the exception was not error, as the cause of action asserted against him was not severable from that urged against his codefendants.
    [Ed. Note. — For other cases, see Yenue, Cent. Dig. § 35; Dec. Dig. &wkey;22(l).]
    2. Judgment <&wkey;243 — Persons Not Paeties to Action.
    Where some of the creditors had never recovered judgment against the W. Co., the court could not adjudicate the amount of their claims, as judgment cannot be rendered against one not a party to the suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 428; Dec. Dig. &wkey;*243.]
    3. Fraudulent Conveyances &wkey;>255(l) — Actions to Set Aside — -Necessary Parties.
    There was a defect of parties, as in suits to enforce a trust all persons to be affected by the decree should be made parties, and the trustees as well as the purchaser of the trust property were necessary parties.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 741; Dec. Dig. <&wkey;> 255(1).]
    4. Fraudulent Conveyances <&wkey;182(5) — Sales in Bulk — Liability of Purchasers.
    Yernon’s Sayles’ Ann. Civ. St. 1314, art. 3971, provides that any sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade, or sale of an entire stock in bulk shall be void as against creditors, unless the purchaser makes inquiry of the seller as to creditors and notifies them. Article 3972 provides that any purchaser conforming to article 3971 shall not be accountable to creditors for any of the merchandise coming into possession of such purchaser. Held, that where the sale of a stock of merchandise was made in violation of the statute, the members of the purchasing firm were constructive trustees to the extent of the value of the goods for the benefit of the creditors of the sellers.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 575, 576; Dec. Dig. &wkey;182(5)J
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Suit by the Parlin-Orendorf Implement Company and others against G. W. Barcus and others. From an adverse judgment, the defendant named appeals.
    Reversed and remanded.
    Turner & Rollins, of Amarillo, and G-. W. Barcus, of Waco, for appellant. Knight & Slaton and Carl Gilliland, all of Hereford, and Madden, Trulove, Ryburn & Pipkin and Crudgington & Works, all of Amarillo, for appellees.
   HALL, J.

During the year 1912, and for several years prior thereto, the Warren Hardware Company, a firm composed of M. W. Warren, C. W. Warren, and Marvin Cross, were engaged in the hardware business, at Hereford, Tex., and about January 14, 1913, C. W. Warren, acting for his firm, entered into a written contract with J. I. Walker, acting for the firm of Walker & Perkins, of which he was a member, for the sale of the stock of hardware to Walker & Perkins. A part of the consideration for the sale was that Walker & Perkins would execute and deliver to Warren their note for $4,000, payable 90 days after date, with 8 per cent, interest. According to the terms of the contract, the goods were sold at their invoice price, plus the cost of carriage. It was further provided that as part payment for th-e stock J. J. Perkins, of the firm of Walker & Perkins, should, by warranty deed, convey to the members of the firm composing the Hardware Company, 1,062 acres of land in Bailey county, at $15 per acre, less certain indebtedness due Roberts county upon said land. The third paragraph of the written contract is as follows:

“Second parties [Warren Hardware Company] guarantee to the first parties [Walker & Perkins] that they, the second parties, will pay, or cause to be paid, any, every and all indebtedness or claims of whatsoever nature, kind or amount, which may be due or owing upon or for any and all the property described in the first paragraph; and that second parties will make a good and sufficient bill of sale, conveying and warranting the title to all of said property to first parties, against any and all persons whomsoever, and deliver all of said property to first parties, clear and free from all claims and debts, except such as the second parties will hereafter fully satisfy, pay off and discharge themselves. The proceeds of the note above mentioned [for $4,000] which first parties are to make and pay to second parties, being intended and agreed to be applied to the payment of any and all debts or claims, which may be owing for or against any' of the property mentioned in paragraph first; and the proceeds of said note must be applied to the payment of any and all claims for or against said property until all such claims and debts are fully liquidated; and in event the proceeds of said note are insufficient to fully pay off and discharge all of such indebtedness, then nevertheless the second parties undertake and agree to fully pay off and discharge any and all such claims.”

This suit was instituted by the appellee, Parlin-Orendorf Implement Company, against J. I. Walker, J. J. Perkins, and G. W. Barcus, seeking judgment against Walker & Perkins, on the note for $4,000, claiming that G. W. Barcus held the same for the Warren Hardware Company, and should be adjudged to be the holder thereof for the benefit of the creditors of said company.

The petition alleges the insolvency and non-residence of - C. W. Warren and Marvin Cross, but makes M. W. Warren a party. It appears that M. W. Warren was never served with citation, and before the trial a nonsuit was taken as to him. It is alleged that the $4,000 note was executed and delivered to the members of the Warren Hardware Company, to be held by them in trust and to be collected, and the proceeds thereof paid to the creditors named in the petition.

The allegation with reference to the possession of the note by G. W. Barcus is as follows:

“That after the 'execution and delivery of said note for $4,000, the defendant G. W. Barcus, after its maturity, and with full knowledge of the purposes for which it was executed, did, with knowledge of such facts as would and should have put him upon inquiry, and without paying any consideration therefor, for the sole purpose of assisting his father-in-law, M. W. Warren, in hindering, delaying, and defeating the creditors of the said Warren Hardware Company, above mentioned, in the collection of their respective debts, and their equitable rights and interests in said $4,000 note, acquired possession of said note and now claims to be the rightful and legal owner and holder of said note, but in truth and in fact is only holding it fraudulently and for the purpose of defeating this plaintiff, and the other creditors particularly mentioned in this petition, of the Warren Hardware Company, out of their debts and demands and out of their equitable interests and rights in said note, and for said purpose the said M. W. Warren and C. W. Warren, and each of them, transferred and delivered and caused to be delivered to the said defendant Barcus said note, and refused to exercise and perform the duties of trust provided in said contract for them to'perform in the collection of said note, and the payment of the proceeds thereof, to the plaintiff and the other creditors hereinabove mentioned, all to plaintiff’s damage.”

The Wyeth Hardware & Mfg. Company, Hibbard, Spencer, Bartlett & Co., the Texas Harvester Company, and Morrow-Thomas Hardware Company intervened and adopted the pleadings of the plaintiff. The prayer in plaintiff’s petition is that it have judgment against the defendant M. W. Warren for the full amount of its debt, evidenced by a note, in the sum of $1,610.99; that it have judgment against the defendants J. J. Perkins and J. I. Walker, and as to and against defendant G. W. Barcus it have judgment for the full amount of the note for $4,000, together with all accrued interest that may be due thereon, for costs of suit and a decree for a recovery on the said $4,000; that the court order the amount of said recovery to be prorated amongst the various creditors, and according to the amount of indebtedness due each from the Warren Hardware Company, and for general relief.

Upon a trial before the court, judgment was entered dismissing the cause of action against M. W. Warren, continuing as follows:

“The court is of the opinion that on the 16th day of January, 1913, the Warren Hardware Company, a copartnership, was duly indebted to the plaintiff and intervener, in the respective sums hereinafter decreed to be due and owing to the said plaintiff and said interveners, respectively, and that said indebtedness due the said plaintiff and the said interveners, respectively, by the said Warren Hardware Company, is all past due and no part paid save and except as hereinafter stated; and it further appearing to the court that the said plaintiff Parlin-Orendorf Implement Company, and the said interveners, Morrow-Thomas Hardware Company, Hibbard, Spencer, Bartlett & Co., and Wyeth Hardware & Manufacturing Company, should have and recover of and from the defendants J. I. Walker and J. J. Perkins, and as to the defendant G. W. Barcus, on the $4,000 note sued on, the sum of $4,762.65, less an amount of $177.38, or a total of $4,585.27. It is therefore ordered, adjudged, and decreed by the court that the plaintiff’s debt due and owing to it, by the said Warren Hardware Company, is hereby decreed to be $2,012.53, principal and interest, together with $201.25 attorney’s fees; that the intervener Morrow-Thomas Hardware Company’s debt, due and owing to it, by the said Warren Hardware Company, is hereby decreed to be $1,123.34, together with $113.33 additional as attorney’s fees. * ® * That the intervener the Texas Harvester^ Company’s debt, due and owing to it by the said Warren Hardware Company, is hereby decreed to be $1,855.50. * * * That the Wyeth Hardware & Manufacturing Company’s debt, due and owing to it by the said Warren Hardware Company, is hereby decreed to be $355.90. * * • That the intervener, Hibbard Spencer, Bartlett & Co.’s debt, due and owing to it by the said Warren Hardware Company, is hereby decreed to be $429.80. * * * It is therefore ordered, adjudged, and decreed by the court that the plaintiff, Parlin & Orendorf Implement Company, and the interveners, * * * do have and recover of and from the defendants J. I. Walker and J. J. Perkins, and as to the defendant G. W. Barcus, the sum of $4,585.27, said recovery to be prorated among the said plaintiff and interveners in proportion to their respective indebtedness hereby decreed to be due and owing to them, respectively, from the said Warren Hardware Company. It is further decreed that no personal judgment be taken against the defendant Barcus, except for costs ; that the $4,000 note now held by him be annulled, canceled, and held for naught.”

In addition to a plea of ownership of the note, Barcus filed a plea of privilege to be sued in Parker county. The action of the court in overruling this plea is the basis of the first assignment of error. The plea presents first a special exception. The record discloses no evidence introduced to sustain the allegation of facts made in it. Under the allegations of the petition as above set out, Barcus is charged with being in possession of the note, claiming to be the owner thereof, for the fraudulent purpose of enabling his father-in-law to hinder, delay, and defeat his creditors. It is further charged that he holds it under an express trust for the benefit of the creditors of the Warren Hardware Company. The petition further seeks to recover against M. W. Warren and against the makers of the note, Walker & Perkins, who are alleged to reside in Deaf Smith county, where the plea was filed. Such being the pleadings, the cause of action asserted against Barcus was not severable from that urged against his codefendants; and the court did not err in overruling the exception.

By the second assignment it is insisted that the court erred in overruling . appellant’s plea of a defect of parties defendant, and decreeing the note to be a trust fund without joining the individuals of the Warren Hardware Company, who were necessary parties to the suit It appears from the record before us that Morrow-Tbomas Hardware Company and tbe Texas Harvester Company were judgment creditors of tbe Warren Hardware Company, but tbat neither plaintiff nor any of tbe other interveners had ever obtained a judgment upon their claims against tbe members of tbe Warren Hardware Company. It is undisputed that tbe members of tbe Warren Hardware Company were still liable for tbe debts claimed to be due plaintiff and tbe interveners, and, with tbe exception of tbe two interveners above named, tbe amount of these several debts bad never been judicially ascertained until the decree was entered in this action. Tbe effect of tbe court’s judgment is to adjudicate tbe amount of tbe respective claims asserted by tbe plaintiff and interveners against tbe Warren Hardware Company, when only one member of tbe firm bad ever been made a party to tbe action and after a nonsuit bad been taken as to him. It is fundamental tbat a court cannot render a judgment against one who is not a party to tbe suit.

We also agre§ with appellant tbat necessary parties have not been brought into tbe suit. According to tbe allegations in tbe petition, tbe two firms, Warren Hardware Company and Walker & Perkins, jointly created tbe trust, and by common consent tbe individuals composing tbe firm of Warren Hardware Company were made trustees of tbe property. Tbe $4,000 note is tbe property held in trust by tbe members of the. firm of Warren Hardware Company. It is alleged tbat Barcus is in possession of tbe note, and claiming it adversely to tbe trustees. Tbe general rule is tbat in suits to enforce tbe trust all persons who are to be affected by tbe decree should be made parties. Hall v. Harris, 11 Tex. 300; Cotton v. Coit, 88 Tex. 414, 31 S. W. 1061. The trustees and tbe purchaser of tbe trust property in tbis case are- necessary parties. Williams v. ft. Worth & Rio Grande Ry., 82 Tex. 553, 18 S. W. 206; 39 Cyc. 608; 2 Perry on Trusts & Trustees (6th Ed.) § 877. Por tbis additional reason tbe appellant’s contention, tbat there was a defect of parties defendant, should have been sustained.

Tbe sale of tbe stock of hardware was made in violation of tbe Bulk Sales Law. Vernon’s Say les’ Civil Statutes, arts. 3971 and 3972. And as held" by tbe Supreme Court in Owosso Carriage & Sleigh Co. v. McIntosh & Warren, 179 S. W. 259, tbe members of the firm of Walker & Perkins are constructive trustees to tbe extent of tbe value of tbe goods for tbe benefit of -the creditors of tbe Warren Hardware Company. It is, however, further intimated in that case tbat tbe creditors of an insolvent debtor, who has disposed of bis goods in violation of tbe Bulk Sales Law, if no judgment has been obtained, must pursue bis legal remedy and either attach tbe goods or garnishee tbe proceeds. This bold-ing is in accord with tbe weight of authority. Bewley v. Sims,-145 S. W. 1076; McGreenery v. Murphy, 76 N. H. 338, 82 Atl. 720,’ 39 L. R. A (N. S.) 374, and note.

We have not discussed tbe numerous propositions under tbe various assignments in detail, and think what has heretofore been said sufficiently disposes of tbe issues presented; many of them being immaterial and without merit.

Tbe judgment is reversed, and tbe cause remanded.
      <S=^For other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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