author: DUNKLIN,, J.

text:
    MAGNOLIA PETROLEUM CO. et al. v. RAY.
    (No. 8383.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 27, 1916.
    On Rehearing, June 24, 1916.)
    1.Master and Servant <&wkey;107(3) — Master’s Duty — Safe Place to Work — Dangerous Character oe Work.
    The general rule requiring the master to exercise ordinary care to furnish a reasonably safe place to work has no application to a car inspector, employed to see whether ears were in a safe condition for. use by the road and to remedy any defects in them which he might discover since the character of his employment necessarily required him to go upon cars that were in an unsafe and dangerous condition; the reason being that no negligence can be charged to thé master when the servant voluntarily contracts to assume the very risk of which he complains.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 201, 255; Dec. Dig. &wkey;> 107(3).]
    2. Master and Servant <®=o203(l) — Assumption oe Risk — Master’s Negligence.
    The defense of assumption of risk implies negligence on the part of the master creating liability for the damages sustained, unless such a right of action is destroyed by the defense; and, where the common-law rule of allowing the defense of assumed risk where the master has been guilty of negligence is charged by the statute, such defense has no place in a case where there has been no negligence on the part of the master.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-540, 542, 543; Dec. Dig. &wkey;203(l).]
    3. Explosives &wkey;>8 — Master and -Servant &wkey;>lll(l) — Injury—Care Required — Explosion oe Tank Car.
    A railroad owed the duty to its employes, other than its car inspector, and to strangers whose presence might reasonably be expected sufficiently near an oil tank car to receive injury from an explosion thereof, to exercise ordinary care to see that the car was in a proper condition to avoid such explosion.
    [Ed. Note. — For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. <&wkey;>8; Master and Servant, Cent. Dig. §§ 215, 255; Dec. Dig'. &wkey;lll(l).]
    4. Master and Servant <&wkey;107(3) — Safe Place to Work —Oar Inspector — Liability.
    There may be unusual circumstances rendering the situation of a car inspector extraordinarily hazardous, and, when he is excusably ignorant thereof, the master may be liable for an injury resulting therefrom through a negligent failure to remedy such conditions or to inform him thereof.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 201, 255; Dec. Dig. <&wkey;> 107(3).]
    5. Master and Servant <&wkey;258(13) — Action eor Injuries — Petition — Safe Place to Work — Injury to Car Inspector.
    A petition in a car inspector’s suit for injury from the explosion of a tank car loaded with gasoline and naphtha, not alleging that he was inexperienced in such work or was ignorant of the dangers incident thereto, or that defendant was negligent in not warning him of the dangers before directing him to inspect the car, did not show any such unusual facts or circumstances as to exempt him from the general rule applicable to servants employed to repair defective machinery or other equipment.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 828; Dec. Dig. <&wkey;> 258(13).]
    6. Negligence <&wkey;62(l) — Intervening Negligence — “Proximate Cause.”
    Intervening agencies between an act or omission constituting negligence and an injury do not preclude a finding that the negligence was the “proximate cause” of the injury, if it can reasonably be said that the injury was the natural and proximate result of such negligence and that, in the light of the attending circumstances, some such injury ought reasonably to have been anticipated as the probable result.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76, 78; Dec. Dig. &wkey;>62(l).
    For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

      7. Master and Servant <&wkey;286(13) — Injury to Servant — Question eor Jury — Anticipation oe Injury.
    Whether or not an injury to a car inspector, from the explosion of a tank car in which he was trying to remedy a defect, ought reasonably to have been anticipated as a probable result of the road’s negligence, in allowing a defective tank car to remain in its yard, was for the jury, unless, by reason of an absence of proof, or conclusiveness of proof to sustain the affirmative of that issue, a peremptory instruction thereon would be warranted.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 1020; Dec. Dig. <&wkey; 286(13).]
    8. Trial <&wkey;208(3) — Instruction — Deeend- ■ ant’s Theory oe the Case.
    In an action for injury to a car inspector, from the explosion of a tank car loaded with gasoline and naphtha, which it was alleged defendant railroad negligently permitted to remain in its yard in a defective condition, defendant was entitled to an instruction affirmatively presenting the group of facts upon which it relied to refute the charge of negligence, such as an instruction that, if the injury resulted from a pure accident not proximately caused by the negligence of any one, plaintiff could not recover.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 478, 479; Dec. Dig. &wkey;203(3).]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by R. S. Ray against the Magnolia Petroleum Company, the Corsicana Petroleum Company, the Ft. Worth & Denver City Railway Company, and the Houston & Texas Central Railway Company.
    Judgment for plaintiff against defendant Houston & Texas Central Railway Company, and it appeals. Reversed and remanded for another trial as between plaintiff and such defendant, leaving the other part of the judgment undisturbed.
    Thompson & Barwise and G. W. Wharton, all of Et. Worth, Baker, Botts, Parker & Garwood, of Houston, and R. M. Rowland, of Ft. Worth, for appellant. McLean, Scott & McLean, of Et. Worth, for appellees.
   DUNKLIN,, J.

A tank car was loaded with a mixture of gasoline and naphtha at Electra, Tex., and consigned for shipment to Corsicana, Tex., over the Et. Worth & Denver City Railway to Et. Worth, and from Et. Worth to Corsicana over the Houston & Texas Central Railway. After reaching Et. Worth it was delivered to the Houston & Texas Central Railway Company at 3:30 o’clock p. m. on the 14th day of March, 1915. A few minutes after 6:30 o’clock p. m. of the same day, R. S. Ray, a car inspector of the Houston & Texas Central Railway Company, was directed by Fife, the general yardmaster of the Houston & Texas 'Central Railway Company, to inspect the car, the yardmaster telling him at the time that the car was leaking. Ray had just gone on duty when he received those instructions and proceeded at once to the car. When he reached it he found that gas was escaping from the edges of the dome cap in quantities sufficient to make a hissing noise. He and his helper, Pettigrew, then proceeded to examine the car. They both carried lanterns, but Petti-grew, upon instruction from Ray, extinguished his before he reached the car for fear of an explosion from the ignition of the escaping gas. Ray did not extinguish his lantern, but on account of the same danger he left it at a distance estimated at between 75 and 100 feet from the car. The dome cap of the car was screwed, into the opening known as the manhole, approximately three feet in diameter. On top of the car were two valves called “pop-off” valves. The purpose of these valves was to allow the escape of gas that might accumulate in the car and thereby avoid an explosion. When the gas reached a certain tension inside of the car, the valves would be opened by such pressure, and after the relief of the pressure the valves would dose. Fearing that the car might explode, Ray and Pettigrew ascended to the top of the car and tried to open these valves by hammering down on them with a bar of iron. They were unable thus to open the valves, and thereupon conceived the idea of unscrewing the dome cap from the manhole. After giving the dome cap a partial turn, which resulted in an increase in the escape of gas, they ceased further efforts and alighted from the ear; Ray being of the opinion then that the pressure of gas would be relieved by the loosening of the dome cap, which had then been accomplished by himself and Pettigrew. Just as they had reached that conclusion, Olopton, another employs of the Houston & Texas Central Railway Company, who was engaged as an engine foreman, came on the scene and suggested that the dome cap be unscrewed farther. Ray himself declined to make any further efforts to do so, but his helper, Pettigrew, and Clopton ascended the car and gave the dome cap another turn, which resulted in an explosion, the force of which blew the dome cap off and shot a stream of liquid and gas to an estimated height of 100 to 150 feet in the air. In some manner this gas and liquid caught fire and severely burned Ray, who was on the ground near the car at the time.

Ray instituted this suit to recover for the injuries so sustained. The defendants in the suit were the Magnolia Petroleum Company, alleged to be the owner of the car, the Cor-sicana Petroleum Company, who loaded the car at Electra, the Et. Worth & Denver City Railway Company, who transported it from Electra to Et. Worth, and the Houston & Texas Central Railway 'Company. It was alleged that the Magnolia Petroleum Company, who owned and operated the car, owed the duty to see that the pop-off valves were constructed and maintained in a reasonably safe condition, but that said company negligently permitted said valves to become rusty, corroded, and otherwise defective, and used the car in that condition for transporting high explosives; that if the pop-off valves were properly constructed and in proper condition for the car to be used in the transportation of gasoline, or any other explosive substance, such valves would automatically open whenever the pressure inside the car reached a stage of 12 pounds to the square inch, but that, hy reason of the defective and corroded condition of those valves in that car, that result could not be attained. It was alleged that the Corsicana Petroleum Company negligently caused the car to be loaded at Eleetra with the highly explosive liquid without inspecting it to ascertain whether or not said pop-off valves were in proper condition, and negligently procured the same to be transported and delivered into the yards of the Houston & Texas Central Railway Company in that condition. It was alleged that the Ft. Worth & Denver City Railway Company negligently and carelessly delivered the car to the Houston & Texas Central Railway Company without making any inspection to- ascertain the condition of the car and its contents, and that if a proper inspection had been made the defective condition of the pop-off valves would have been discovered and that the said railway company was guilty of negligence in failing to warn the Houston & Texas Central Railway Company, to whom it delivered the car, and the plaintiff, R. S. Ray, its car inspector, of the contents of the car and its defective and dangerous condition.

Plaintiff further alleged that at the time of the accident he was in the employment of the defendant Houston & Texas Central Railway Company in the capacity of car inspector in its yards in the city of Ft. Worth, and that the duties of his employment consisted of inspecting the cars in the yards of said company and ascertaining whether or not the same were in need of repairs and were in fit and proper condition. The allegations of negligence on the part of the Houston & Texas Central Railway Company are as follows:

“That it was then and there the duty of the defendant Houston & Texas Central Railway Company, to exercise ordinary care to furnish plaintiff with a reasonably safe place in which to perform his work and to exercise a like degree of care to maintain the same in a reasonably safe condition. But the said defendant Houston & Texas Central Railway Company, its agents, and employés negligently and carelessly caused and permitted said car to come into its yards in the condition aforesaid, well knowing that plaintiff and others of similar employment would be working around and near said car. Defendant Houston & Texas Central Railway Company, its agents, and employés negligently and carelessly permitted said car, in its dangerous and defective condition with its contents aforesaid, to be and remain in said yards. That said car in its then condition with its contents aforesaid, being and remaining in said yards, rendered the place where plaintiff was required to perform his work dangerous and unsafe. And plaintiff alleges that the said defendant Houston & Texas Central Railway Company, its agents, and employés knew, or by the exercise of ordinary care could and should have known, of the defective and dangerous condition of said car, with its contents aforesaid, and in the light of the attending circumstances could and should have foreseen such injury and damage as plaintiff suffered as the natural and probable consequence thereof. That in all of said acts, the defendant Houston & Texas Central Railway Company was guilty of negligence which proximately caused all of plaintiff’s injury and damage.”

It was alleged that the negligence of each and all of the defendants was the proximate cause of the plaintiff’s injury, and judgment was asked against each for the damages resulting to the plaintiff by reason of his injuries.

The trial was before a jury, who returned a verdict in favor of the two oil companies and the Ft. Worth & Denver City Railway Company in obedience to a peremptory instruction from the court; but a judgment was rendered in favor of the plaintiff against the Houston & Texas Central Railway Company for the sum of $13,750 upon evidence heard and a charge submitting the issue of liability of that railway company as a controverted issue, from which judgment that defendant has prosecuted this appeal.

The record does not show upon what theory the peremptory instruction was given in favor of the other three defendants, nor does it appear in the record that the plaintiff took any bill of exception to that instruction.

The car was loaded with 6,760 gallons of gasoline and 1,260 gallons of naphtha, the naphtha being mixed with the gasoline in order to reduce the vapor tension of the latter. According to the testimony of O. C. Baker, an employé of the Corsicana Petroleum Company, who had charge of the loading of the cars of that company, the car was a steel frame car, the body of which was tested to stand a pressure of 60 pounds to the square inch, and the pop-off valves were tested to stand a pressure of 12 pounds to the square inch. The car belonged to the Magnolia Petroleum Company, who sold its contents to the Corsicana Petroleum Company, and furnished the car to the latter company for the shipment of said contents. According to other testimony, which seems uncontroverted, the plugs in the pop-off valves could be raised by prizing them up with an iron bar and the valves were equipped with springs and screws by means of which the pressure inside of the car could be regulated; in other words, the valves could be so regulated that the pressure inside the car would exhaust through the valve whenever it reached a certain tension.

According to the testimony of ^he witness A. G. Craft, introduced by the defendant, who was joint car inspector for the different railroads in Ft. Worth, including the two defendant railway companies, the morning after the accident the dome cap of the car in question was again screwed into the manhole and steam was inserted for tlie purpose of determining whether or not the pop-off valves were in proper condition. He testified that as the result of this test the plugs in the pop-off valves lifted and permitted the steam to escape when the pressure reached the stage of 20 or 22 pounds to the square inch, but not until it reached that pressure. This witness further testified, however, that with that pressure no steam escaped around the edges of the dome cap, his testimony as to the fact last stated being introduced by the plaintiff as tending to show that the pressure in the cai; at the time of the accident was greater than 22 pounds to the square inch. The car reached Ft. Worth and was delivered to the Houston •& Texas Central Railway Company by the Ft. Worth & Denver City Railway Company at 3:30 o’clock p. m. on March 14,1915, and A. 6. Craft, the joint ear inspector, testified that he inspected the car at the time of the delivery and heard no escape of gas therefrom, and discovered no defect in its condition, nor any evidence indicating any danger of explosion. As stated above, the accident happened shortly after 0:30 o’clock during the same afternoon.

After giving the usual definitions of ordinary care and negligence, the sixth and seventh paragraphs of the court’s charge to the jury, in presenting the plaintiff’s case against the Houston & Texas Central Railway Company read as follows:

“(6) You are instructed that it is the duty of the master to exercise ordinary care to furnish his^ servant with a reasonably safe place in which to perform his work and to exercise a like degree of care to maintain the same in a reasonably safe condition. A failure so to do is negligence.
“(7) Bearing in mind the foregoing definitions and instructions, if you find and believe from the evidence that on or about the 14th day of March, 1915, the defendant Houston & Texas Central Railway Company caused or permitted a certain tank car containing highly explosive and dangerous substance to be brought into its yards in the city of Ft. Worth, and that said car was in such condition as that said substance or substances escaped therefrom, and that in such condition it was dangerous and unsafe, and that the presence of same in said yards rendered the place where the plaintiff was working and required to be at work dangerous and unsafe, and the said Houston & Texas Central Railway Company, or its agents and employes, permitted said car to so remain in said yards in such condition; and if you believe and find from the evidence that said car, in its then condition, being and remaining in said yards rendered the place where plaintiff was working and required to work dangerous and unsafe, and you further find that said Houston & Texas Central Railway Company, its agents, and employes, knew or by the exercise of ordinary care should or could have known, of the dangerous condition of said car, if such was its condition, and you further find that said Houston & Texas Central Railway Company, its agents, and employes, knew or by the exercised ordinary care should have known that the presence of said car in said yards in the condition you may find it was in rendered tlie place where plaintiff was required to work dangerous and unsafe, if you find that it did render such place dangerous and unsafe, and you further believe and find that said acts and omissions of said defendant company, its servants, and employés, if any, were negligence, as that term has been heretofore defined, and you further find that such negligence, if any, was the proximate cause of plaintiff’s injuries, if any, and you do not find for the defendant under other instructions herein given you, your verdict will be for the plaintiff, R. S. Ray, and against the defendant Houston & Texas Central Railway Company.”

Error lias been assigned, to both of those instructions substantially upon the ground that the evidence did not warrant a recovery upon the theory of negligence in failing to provide the plaintiff with a reasonably safe place to work, or that it was guilty of negligence in failing to maintain the same in a reasonably safe condition, and ,we are of the opinion that those assignments must be sustained. According to the allegations in plaintiff’s petition and the undisputed evidence, plaintiff was employed for the express purpose of inspecting cars in order to determine whether or not they were in a safe condition for use by the company. The evidence further shows that it was within the scope of the duties of plaintiff’s employment to remedy any defects in the cars which he might discover upon inspection and which could be repaired by him. Plaintiff’s employment necessarily required him to go upon cars that were in an unsafe and dangerous condition, for the purpose of determining and repairing that condition, and it is well established that the general rule given in the court’s charge which requires the master to exercise ordinary care to furnish the servant with a reasonably safe place to work has no application to that character of employment under such circumstances. See S. A. & A. P. Ry. Co. v. Weigers, 22 Tex. Civ. App. 344, 54 S. W. 910; Wells Fargo Express Co. v. Page, 29 Tex. Civ. App. 489, 68 S. W. 528; 3 Dabatt’s Master and Servant (2d Ed.) §§ 924, 1176, and authorities there cited.

In Allen v. G., H. & S. A. Ry. Co., 14 Tex. Civ. App. 346, 37 S. W. 171, in which a .writ of error was denied by our Supreme Court, the following was said:

“Ordinarily, the master owes his servant the duty of inspection or reasonable care in furnishing him safe and suitable means for performing his work. Tliis rule has no reference to the safety and condition, of the thing the servant is employed to repair or complete. As stated in. Carlson v. Railway Co., 21 Or. 450, 28 Pac. 497: ‘Where a servant is employed to put a thing in a safe and suitable condition for use, it would be unreasonable and inconsistent to require the master to have it in a safe condition and good repair for the purpose of such employment.’ ”

To the same effect are numerous decisions collated in notes to Forbes v. Gorman, 25 L. R. A. (N. S.) 321.

In many of the authorities announcing that the general rule requiring a master to furnish a safe place for the servant to work does not apply in such cases, it is stated that the servant assumes all such risks. The underlying principle of the exception, as ,we understand it, is that no negligence can be charged to the master when the servaut voluntarily contracts to assume the very risk i of which he complains; and, in the absence of negligence on the part of the master, the servant has no cause of action as a matter of course. The use of the expression in the authorities referred to, that the servant assumes the risk, is misleading, in that the defense of assumption of risk implies negligence on the part of the master creating liability for the damages sustained, unless such a right of action is destroyed by that defense. It is important to keep this distinction in mind, if the common-law rule of allowing the defense of assumed risk where the master has been guilty of negligence is changed by statute, as has been done in this state, and if that statute applies in the present suit. If there has been no negligence on- the part of the master, then the defense of assumed risk has no place in the ease.

The appellant Railway Company owed the duty to its other employes and to strangers, whose presence might reasonably be expected sufficiently near the place of the accident to suffer injury from such an explosion, to exercise ordinary care to see that the car was in a proper condition to avoid such explosion. Appellant is a corporation and could discharge that duty only by employing some one to perform it, and it would be unreasonable to say that it owed the duty to see to it that the car which needed repairs was already in a safe condition before the servant employed to repair it was called on to perform that service.

Of course, the master is not exonerated from all duties for the protection of the servant employed to remedy such defects. There may be unusual circumstances rendering the situation of the servant extraordinarily hazardous and of which circumstances the servant is excusably ignorant, and the master may be liable for an injury resulting therefrom through a negligent failure to remedy them, or to inform the servant thereof. For illustration: In Clark v. Johnson County Tel. Co., 146 Iowa, 428, by the Supreme Court of Iowa, reported in 123 N. W. 327, it was said:

“While it is true that a servant employed to make a dangerous place safe assumes the risk of the very danger which he undertakes to remove, he does not assume the risk of the method employed in doing such dangerous work if that method is unnecessarily hazardous in respects as to which the employe has no knowledge, provided that in these respects the employment could have been rendered less hazardous by the exercise of reasonable care on the part of the employer.”

Other illustrations might be given, such as the negligent failure to inform an inexperienced servant of the dangers incident to repair work when his ignorance of such danger was known to the employer.

Plaintiff alleged no such unusual facts or circumstances as would exempt him from the operation of the general rule applicable to servants employed to repair defective machinery or other equipments. His petition contained no allegation that he was inexperienced in such work, ignorant of the dangers incident thereto, that such ignorance on his part was known to appellant and that appellant was guilty of negligence in failing to warn him of such dangers before he was directed to perform the service. So far as appears from the pleadings and the evidence, the only employes whose duties required such work as plaintiff was doing at the time of the accident were car inspectors. The plaintiff and Craft, the joint car inspector, were charged with the same duties. The theory advanced in plaintiff’s brief, and also in his pleadings, was that the defects and dangerous condition of the car were present at the time the car was delivered to appellant by the Ft. Worth & Denver City Railway Company and at the time Craft inspected it; and the evidence of Utley, the switchman who handled the car from the time it was received, to the effect that the car was emitting a hissing sound at that time and continuously up to the time of the accident, and the testimony of Malone, the yard clerk who checked the car, to the effect he heard the same noise emanating from the car about 5 o’clock in the afternoon of the date of the accident, is cited by appellee to establish that fact. If plaintiff had been called upon to perform thg same service as soon as the car was received by appellant, and the same accident had then happened, clearly he would be in no position to claim liability on the part of the defendant for such injuries. If, instead of him, Craft had then attempted to perform the same service, exercising proper care, as the jury found the plaintiff did, and he had been injured, as plaintiff was injured, as a result of such defects, it is equally clear that he would have had no cause of action. If, in the performance of the service which plaintiff was performing on the occasion of the accident, he acted as a person of ordinary prudence would have acted under the same or similar circumstances, as found by the jury, then it must be presumed that Craft would have pursued the same course and would have suffered a like injury if he had discovered the alleged defects and had attempted to remedy them, when the car was first delivered to appellant by its connecting carrier. Upon what principle can plaintiff in the present suit insist that Craft should have suffered an injury rather than himself, and that appellant should respond in damages t& him for Craft’s failure to take that risk? It is difficult to perceive upon what theory the defendant would be liable to the plaintiff for the accident that did happen to him and would not have been liable to plaintiff, if, from the same causes, the same accident had happened immediately upon receipt of the car by appellant some three hours earlier than the time the accident did happen. If car inspectors were the only employes hired to inspect and repair such cars, and if the duties of their employment which they voluntarily assumed and contracted to perform,' knowing the dangers and risks incident thereto, required them to inspect and repair cars in the condition the car in controversy was, then, in the absence of some extraordinary circumstance of the character suggested above, we fail to perceive any basis for a charge of negligence on the part of the employer predicated solely upon the fact that the car was a dangerous place to work.

By different assignments appellant contends that the alleged negligence on its part, upon which plaintiff based his suit, was not, as a question of law, the proximate cause of the injury, and that therefore the court erred in submitting to the jury any issue as a basis for a verdict in plaintiff’s favor. By one of those assignments it is insisted that the evidence shows without controversy that the escaping gas was ignited by coming in contact with plaintiff’s lantern, which he had left upo'n the ground near the car, and that his act in so leaving it was the proximate cause of his injury. By two other assignments it is contended that the act of Petti-grew and Clopton in unscrewing the dome cap was the proximate cause of the accident and injury, and that plaintiff in his pleadings had not alleged that Olopton and Pettigrew were guilty of negligence in so doing or that appellant was in any manner liable therefor.

The principal argument advanced in support of those assignments is, substantially, that each of those acts was an intervening agency causing the injury, wholly independent of the alleged negligence of appellant and wholly disconnected from it. Many authorities are cited in support of those assignments, such as T. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Commercial Assurance Co. v. Gulf Refining Co., 174 S. W. 874; G., C. & S. F. Ry. Co. v. Shields, 9 Tex. Civ. App. 652, 28 S. W. 709, 29 S. W. 652; Newnom v. S. W. Tel. Co., 47 S. W. 669; S. W. Tel. & Tel. Co. v. Keys & Casey, 50 Tex. Civ. App. 648, 110 S. W. 767; Stone v. B. & A. Ry. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794.

The foregoing conclusions upon assignments first discussed render it unnecessary to discuss these, but, in view of another trial, we deem it proper to suggest that intervening agencies between an act or omission constituting negligence and an injury does not preclude a finding that the negligence was the proximate cause of the injury, if it reasonably can he said that the injury was the natural and probable consequence of such negligence, and that in the light of the attendant circumstances some such injury ought reasonably to have been anticipated as a probable result of such negligence. Mexican Nat. Ry. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642; Gonzales v. Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; Texas & Pac. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Reynolds v. G., H. & S. A. Ry., 101 Tex. 2, 102 S. W. 724, 130 Am. St. Rep. 799; Stone v. Boston & A. Ry., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794.

It is proper to note further that the question whether or not an injury of the character of the one in controversy ought reasonably to have been anticipated as a probable result of the negligence alleged should be specifically submitted to the jury for their determination, if the court is requested so to do, unless by reason of an absence of proof or conclusiveness of proof to sustain the affirmative of that issue a peremptory instruction thereon would be warranted. T. & P. Ry. v. Reed, 88 Tex. 439, 31 S. W. 1058; Washington v. M., K. & T. Ry., 90 Tex. 314, 3S S. W. 764; Mex. Nat. Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642.

Appellant presents the further contention that the proof showed that at the time of the accident plaintiff was performing a service pertaining to interstate commerce; that the alleged negligence upon which a recovery was sought did not consist of any violation of the federal Safety Appliance Act, passed April 22, 1906; that, under the established rule obtaining under such circumstances, plaintiff assumed the risk of his injury since, from his own testimony, it conclusively appears that before and at.the time he undertook to relieve the pressure of gas in the car he knew of the alleged defect and of the dangers incident to his attempt to remedy it, citing, among other authorities, N. Y. Central Ry. & Hudson River Ry. v. Carr, 238 U. S. 260, 35 .Sup. Ct. 780, 59 L. Ed. 1298; S. A. L. Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; St. L. S. W. Ry. v. Hynson, 101 Tex. 543, 109 S. W. 929; St. L. S. W. Ry. v. Mathis, 101 Tex. 342,107 S. W. 530; Snipes v. Bomar Cotton Oil Co., 161 S. W. 1, by our Supreme Court.

The trial court in express terms charged the jury that plaintiff was engaged in handling interstate commerce at the time of his injury. The evidence cited by appellant to show that plaintiff was so engaged consisted of proof that at the time of the accident the ear in controversy was one of a train of cars already made up and standing on a side track ready to leave on a trip south, although no engine had yet been attached for the trip; that several other cars in the train were loaded with interstate traffic, some originating in Kansas, some in Missouri, and some in Colorado, most of which were destined for Galveston, Tex. Neither by an exception to that instruction nor by briefs here has the plaintiff questioned the correctness of that instruction. However, in view of another trial, we suggest that, even if plaintiff was so engaged, yet, as shown already, the immediate occasion of the explosion was tile further loosening of the dome cap by Pettigrew and Clopton; and by reason of that fact we doubt the application of the rule of assumed risk upon the theory advanced by appellant, unless it can be said that in so doing Pettigrew and Clopton were acting under the direction of plaintiff, or with his consent and approval, or that after he discovered that they would proceed to further unscrew the cap, and before they did so, plaintiff voluntarily remained in a place of known danger, and that if he had desired to do so, he had sufficient time and opportunity to leave the car and place himself in a place of safety before the explosion occurred; with respect to which issues there was some controversy in the evidence.

IV e believe that the evidence was sufficient to warrant the submission of the issue of future impairment of plaintiff’s ability to earn money, contrary to appellant’s contention presented in another assignment. But we are of the opinion that appellant was entitled to an instruction to the jury presenting in an affirmative manner the group of facts upon which it relied to refute the charge of negligence upon which plaintiff’s suit was predicated. E. P. & S. W. Ry. Co. v. Both, 101 Tex. 133, 100 S. W. 171, 105 S. W. 322; Tellow Pine Lumber Co. v. Noble, 101 Tex. 125, 105 S. W. 318; St. L. S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; St. L. S. W. Ry. Co. v. Hall, 98 Tex. 180, 85 S. W. 786; Wells Pargo Co. v. Benjamin, 179 S. W. 513. The court not only failed to give any such instruction in his main charge but refused two requested by appellant. One of those so requested reads as follows:

“If you believe from the evidence plaintiff’s injury resulted from a pure accident and was not proximately caused by the negligence on the part of any one, then you are instructed to find for defendant Houston & Texas Central Railway Company.”

That instruction, or some other of like import, should have been given. G., H. & S. A. Ry. Co. v. Washington, 94 Tex. 510, loc. cit. 517, 63 S. W. 534.

Bor the reasons indicated the judgment is reversed, and the cause remanded.

On Rehearing.

As noted in our opinion on original hearing, plaintiff has never questioned the correctness of the peremptory instruction to the jury by the trial judge to return a verdict in favor of defendants, the Magnolia Petroleum Company, the Corsicana Petroleum Company, and Bt. Worth & Denver City Railway Company, and no complaint has been made by him, either in the trial court nor in this court, of the judgment in favor of those defendants based on a verdict in their favor in obedience to the instruction.

In our original opinion it was our intention to leave that part of the judgment undisturbed and to reverse only that part of the judgment rendered in fayor of plaintiff against appellant, the Houston & Texas Central Railway Company, and to remand the case for another trial as between plaintiff and that defendant only; and the judgment so rendered by us and the opinion filed will therefore be amended and reformed so as to give effect to that intention.
      ig^jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@03jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    JENKINS et al. v. MORGAN.
    (No. 8385.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 3, 1916.
    On Motion for Rehearing, July 1, 1916.)
    1. Payment <&wkey;38(l) — Appropriation by Debtor — Voluntary Payment.
    Where a creditor has several claims against a debtor, a voluntary payment must be applied to the debt designated by the debtor.
    [Ed. Note. — Bor other cases, see Payment, Cent. Dig. §§ 99, 128; Dee. Dig. &wkey;38(l).]
    2. Appeal and Error <&wkey;736 — Assignment op Error — Including Errors in One Assignment.
    An assignment of error, which is a combination of several assignments contained in the motion for a new trial, is insufficient.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dee. Dig. <&wkey;> 736.]
    3. Appeal and Error <&wkey;728(l) — Assignment op Error — Specification—Evidence.
    An assignment of error, which complains of evidence rulings as to several witnesses, and fails to set out the objections made to such rulings, is insufficient.
    [Ed. Note. — Bor other cases, see Appeal and Error, Cent. Dig. § 3010; Dec. Dig. <i&wkey;728(l).]
    4. Appeal and Error <&wkey;499(3) — Assignments op Error — Specification-^Ground por Objection.
    An assignment of error is insufficient, where neither it, nor the bill of exceptions to which it refers, states what objections were made to the evidence in question.
    [Ed. Note — Bor other cases, see Appeal and Error, Gent. Dig. § 2297; Dec. Dig. &wkey;499(3).]
    5. Appeal and Error <&wkey;213 — Reserving •Ground por Review — Special Issues — Separate Requests.
    Where a request to submit a special issue contained two propositions, one of which was submitted to the jury, the failure to submit the other is not reversible error, in the absence of a separate request to do so.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308; Dec. Dig. &wkey;5213.]
    6. Appeal and Error <&wkey; 1062(2) — Harmless Error — Failure to Submit Issue — Cure by Verdict. . .
    Under an issue-of breach of warranty, failure to submit an issue whether plaintiff agreed to send defendant an expert to rig' and operate the stump puller in question is not reversible error, where the-jury found that the only warranty made related to what stumps the machine could pull,
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. <S&wkey; 1062(2).]
    7. New Trial &wkey;>108(3), — Grounds—Newly Discovered Evidence — Suppiciency.
    The trial court correctly denied a motion for new trial because of newly discovered evidence, which was based upon an affidavit that the lever to a stump puller, for whose purchase price the note sued upon was given, was about 20 feet long, instead of 18 feet, as stated at the trial.
    [Ed. Note. — For other cases, see.New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. &wkey;108(3).]
    On Motion for Rehearing.
    8. Chattel Mortgages <&wkey;110 — Construction — Future Advances.
    A chattel mortgage, with a printed clause covering future indebtedness up to $150, does not cover an indebtedness of $155 for a stump puller, where the parties intended the clause to cover future indebtedness for store supplies.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 192; Dec. Dig. <&wkey;110.]
    9. Chattel Mortgages <&wkey;240 — Payment-Delivery op Mortgaged Property.
    Where a creditor held chattel mortgages on a debtor’s cotton and stump puller, a credit obtained by delivering some of the mortgaged cotton to the mortgagee should be applied on the cotton mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 505, 506; Dec. Dig. &wkey;> 240.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Action by R. Morgan against W. N. Jenkins and others. Judgment for plaintiff, and defendants appeal.
    Affirmed as modified.
    The first two assignments of error, and appellee’s counter assignments thereto, are as follows:
    First Assignment of Error.
    The court erred in sustaining the appellee’s objection to the testimony of Lon Hopkins, Kelley Stevenson, and John Jenkins, and in refusing to allow their evidence to go to the jury, which testimony would have been to the effect that they had seen other stump pullers in operation, and knew the amount of power or force used by other stump pullers, and had seen the appliances and equipment used, and that they had seen the stump puller in question, and that it would not do what they had seen other stump pullers do; it was not a satisfactory stump puller, was not first-class in every particular; with the same equipment and appliances it would not do the work they had seen other stump pullers do; that it would not pull stumps of the same or similar size, under the same or similar conditions, they had seen other stump pullers pull; that it would not pull stumps in size up to two feet in diameter; that it was not a success; that it would not do satisfactory work, and that it had no value as a stump puller.
    First Counter Proposition to First Assignment.
    The purported bill of exception, to the exclusion of the testimony of Lon Hopkins and the other witnesses referred to in the assignment, is fatally defective, and should not he considered, because it does not set out the objections made to the testimony in the lower court.
    Second Counter Proposition to First Assignment.
    The assignment is multifarious, and attempts to present two or more distinct questions, and therefore should not be considered.
    Third Counter Proposition to First Assignment.
    The jury having found that the only warranty made by the appellee of the stump puller was that it would pull any stump that any other puller of the same size would pull, evidence concerning other stump pullers was inadmissible, in the absence of evidence showing that they were the same size of the puller in controversy. As the appellants failed to show that the pullers referred to by the witnesses were the same size as the puller in controversy, the testimony was not relevant.
    Fourth Counter Proposition to First Assignment.
    The testimony was not admissible, on account of being mere opinions of the witnesses, and it was not shown that they were qualified to express such opinions. The question of their qualification was for the determination of the trial court, and is not reviewable, except on a showing of abuse of the discretion.
    Fifth Counter Proposition to First Assignment.
    No error was committed, because the court finally admitted all of the material facts which appellants state in the assignment were excluded.
    Second Assignment of Error.
    The court erred in permitting witnesses Kirby, Martin, Pierson, and Hill to testify as to the demonstration or experiment made on the farm of Henry Martin, and 'to the effect that the stump puller evidenced no difficulty, and seemed to do all that a stump puller could do, all of which was inadmissible, because the conditions of the experiment and appliances used were not similar to the stump puller used by Jenkins.
    First Counter Proposition to Second Assignment.
    No error is presented because other witnesses were permitted to testify without objection t.o the same facts testified to by Kirby, Martin, Pierson, and Hill complained of in the assignment.
    Second Counter Proposition to Second Assignment.
    It was not necessary that the conditions surrounding the demonstration or use of the puller on the Martin farm should be the same as when it was in use by Jenkins. The appellee merely took the puller, out and pulled stumps, and the testimony of the action of the puller while in use was admissible on the plea of breach of warranty and the contention that the puller was worthless and would not pull stumps.
    [third Counter Proposition to Second Assignment.
    No error is presented, because the conditions under which the puller was used or demonstrated at the Martin farm were substantially similar to the conditions under which Jenkins used it.
    Fourth Counter Proposition to Second Assignment.
    Appellants contend the testimony was not admissible because a different lever was used. The lever was not a part of the puller, and when Jenkins bought the puller he made his own lever. When he brought the puller back at the time the demonstration was made on Martin’s farm, he did not bring his lever; hence it became necessary for the appellee to furnish one. This circumstance did not affect the admissibility of the testimony.
    Johnson & Harrell, of Cleburne, for appellants. Walker & Baker, of Cleburne, for ap-pellee.
   BUCK, J.

Appellee brought this suit upon two promissory notes; the first note being in the principal sum of $418, signed by appellants, W. N. Jenldns and J. A. and W. L. Donoho, and secured by a chattel mortgage signed by Jenkins on 2 mules, 45 acres of cotton, 50 acres of corn, a cultivator, and a wagon. The second note was in the principal sum of $155, secured by a chattel mortgage on one stump puller; note and mortgage signed by Jenkins alone. Plaintiff sued for his debt, evidenced by the two notes, principal, interest, and attorney’s fees, and for foreclosure of his mortgages.

Appellants pleaded that there had been a payment by Jenkins of $105.10, by cotton delivered by him to Morgan, and that Jenkins had requested at the time of said delivery that it be applied on the $418 note; the payment having been by defendant applied on the $155 note. This payment was in addition to the settlement of an open account owing to Morgan by Jenldns, the payment of which is not objected to by appellants in their brief. Appellants further pleaded that it was the agreement and understanding of all parties that the mortgage taken to secure the $418 note should be made payable to the Donohos, who signed the note as accommodation paper, instead of being made payable to Morgan. Jenkins pleaded further that the stump puller, for which he had given the $155 note and the second mortgage, did not comply with the warranties made and did not do the work promised, and that after a thorough test of said stump puller, and after its inability and unfitness to do the work promised had been thoroughly established, he had returned it to Morgan, and that the second note and mortgage should be canceled for failure of consideration. Other pleas were contained in the original and supplemental pleadings of the parties, but sufficient, we think, has been given for the purpose of this opinion.

The cause was submitted to the jury on special issues, and in answer thereto the jury found:

(1) That plaintiff did not agree to accept the note for $418, signed by Jenkins and the two Donohos, unsecured by a mortgage in his (Morgan’s) favor, and did not agree that the mortgage given by Jenkins should be in favor of the 'Donohos.

(2) That the defendants agreed that the open account of Jenkins to Morgan should be paid out of the proceeds of the crop of Jenkins before the payment of the note for $418..

(3) That the defendant knew at the time it was made the kind of mortgage executed by Jenkins to Morgan.

(4) That the only warranty made by Morgan as to the stump puller was that “it would pull any stump that any puller of same size would pull.”

(5) That the stump puller had not failed to comply with the warranty made, and that Jenkins had made no complaint to Morgan during the year 1914 as to any alleged failure.

(0) That Jenkins instructed plaintiff to apply the proceeds of the eight bales of cotton sold, first, to the open account; and, second, to the $418 note.

Other issues were presented and answered, but, except as noted hereafter in this opinion, the above we consider sufficient for this statement.

Upon this verdict the court entered judgment as follows: Prorating the $105.10, crediting $76.64 on the $418 note, and $28.41 on the $155 note, and giving a judgment for plaintiff against all parties defendant for balance of $418 note, to wit, $399.23, and giving judgment for plaintiff against Jenkins for balance of $155 note, or $147.87, with a foreclosure of both mortgages. Defendants appeal.

We conclude that the trial court erred in prorating the $105.10 payment between the two obligations. The jury found, as they were justified by the evidence, that Jenkins instructed plaintiff to apply this payment on the $418 note. This he had a right to do. If a creditor, having several debts against a debtor, receive a voluntary payment from the debtor with instructions to appropriate it to one of them, it must be so appropriated. Eylar v. Read et al., 60 Tex. 387, 389; Larkin v. Watt, 32 S. W. 552; Crawford v. Pancoast, 62 S. W. 559; 4 Green’s Digest, 8845-8846, and authorities there cited; 30 Cyc. 1227 et seq. Therefore we sustain appellants’ fourth assignment, which urges as error this action of the court.

We feel that appellee’s objection to the consideration of appellants’ first and second assignments must be sustained, because (1) they are not even substantial copies of any assignment contained in the motion for new trial, being, at best, only a combination and a reconstruction of several assignments therein contained; (2) they are multifarious, and complain of the exclusion in tire one instance, and the admission in the other, of the testimony of several witnesses, and they do not set out the objections urged thereto in the trial court; (3) the bill of exceptions to which reference is made to sustain assignment No. 1 does not state what objections were urged to the admission of the testimony. Buckler v. Kneezell, 91 S. W. 367; Dixson v. Cooper, 178 S. W. 695; Watson v. Patrick, 174 S. W. 633; National Live Stofck Ins. Co. v. Gomillion, 174 S. W. 330; Ruth v. Cobe, 165 S. W. 530. Moreover, we are of the opinion that, were the assignments given consideration, no reversible error would be found, for the reasons, in the main, set forth in appellee’s counter assignments.

The third assignment urges error in the failure of the court to submit the following special issue:

“Did the plaintiff, R. Morgan, in the sale to the defendant, W. N. Jenkins, of the stump puller in question, guarantee tlie same to give satisfactory service as a stump puller with the team of mules then owned by the defendant, Jenkins, and that he (Morgan) would send a competent person, or expert, to show the defendant, Jenkins, how to rig and operate said stump puller?”

If this assignment be not subject to the vice of multifariousness, as urged by appel-lee, and therefore not required to be considered by us, we are of the opinion that the first question was submitted and answered in special issue No. 7 given, to wit:

“Did the plaintiff, R. Morgan, in the sale to the defendant, Jenkins, of the stump puller _ in question in this suit, guarantee the same to give satisfactory service as a stump puller with the team of mules then owned by the defendant Jenkins?” To which the jury answered: “No.”

If the defendants desired the submission of the other question eontained in the special charge tendered, it was their duty to submit it separately, and their failure so to do would preclude their successfully urging error to the court’s action in failing to submit two issues in the same special charge, one of which had been already submitted in the main charge. Griffin v. Heard, 78 Tex. 607, 14 S. W. 892; McWhirter v. Allen, 1 Tex. Civ. App. 649, 20 S. W. 1007; G., etc. Ry. Co. v. Clark, 2 Willson Civ. Cas. Ct. App. § 512. Moreover, if there had been a promise on the part of plaintiff to send an expért to show Jenkins how to “rig and operate the puller,” it was no part of the warranty; the jury having found that the only warranty made by plaintiff was that the stump puller “would pull any stump that any puller of same size would pull.” The evidence, further, was un-contradicted that the appellee did send a representative out to Jenkins’ place twice for the purpose of showing, Jenkins how to rig and operate the puller. It is true that defendants claim that such representative was not an expert; but, in view of what we have heretofore said, we do not think any reversible error is presented in this assignment.

The fifth assignment is as follows:

“The court erred in refusing to set aside the judgment and grant the appellants a new trial, because of the newly discovered evidence as to the experiments or tests made by the appellee, Morgan, with the stump puller on the farm of Henry Martin, which newly discovered evidence shows said experiments to have been made by a different stump puller, or a stump puller with different appliances and equipment than the Jenkins’ stump puller.”

We do not think there is any merit in this contention. It is uncontradicted that the same stump puller was used iu both tests. So far as the record discloses, the only difference in the equipment of the stump puller as used by Jenkins on his farm, and as used by Morgan on the Martin farm, was as to the lever. The plaintiff testified, and his testimony is uncontradicted, that it is not customary to furnish a lever with a stump puller. Martin made his lever out of a green sapling, and it was claimed by plaintiff and some of the witnesses that the lever, being gre'en, would under strain bend or “cup up.” Morgan constructed' a lever by nailing two timbers 2x8 and 18 feet long together. The only difference between the testimony of plaintiff’s witnesses and the witnesses whose affidavits were offered on the motion for new trial, as to this lever, was that plaintiff’s witnesses testified that the lever was 18 feet long, and one of defendants’ affiants stated that the beam was “about 20 feet long.” After an examination of the affidavits attached to defendants’ motion for a new trial, we have concluded that the trial court did not err in overruling the motion, and the fifth and last assignment is overruled.

Por the reasons given, the judgment of the court below will be reformed, so as to appropriate the entire payment of $105.10 to the $418 note, and, as so reformed, the judgment will be affirmed, with the costs of appeal taxed against appellee.

On Motion for Rehearing.

Appellee presents an insistent motion for rehearing, contending that the $105.10 prorated by the court below, and by this court wholly allowed as a credit on the $418 note first declared upon in appellee’s petition, was not a voluntary payment by the defendant Jenkins, in tlie sense that he was thereby, as we held, entitled to direct its application, and that therefore appellee had the right, under the authorities hereinafter cited, to apply the payment in whole or in part to the note for $155, also declared upon. The basis for the contention is a provision in the mortgage given to secure the first note that in general terms is made to apply to any future indebtedness, and the following cases are cited in support of the contention: Case Threshing Machine Co. v. Matthews, 188 Mo. App. 429, 174 S. W. 198; Rush v. First National Bank, 160 S. W. 325; Taylor & Co. v. Cockrell, 80 Ala. 236.

In the case first cited, which was by a Missouri Court of Appeals, it was said, among other things, that:

“Whore a creditor holds several securities for the same debt, he is entitled to enjoy the full benefit of all without restriction, unless some contractual stipulation provides otherwise. For instance, if the creditor holds several notes, as- here, against the same debtor, all of which are secured by a mortgage, and on one or more of the notes a personal security is bound as well, he is entitled to the benefit of all of the securities he has taken. Therefore, if the property be sold under the mortgage, the creditor may apply the proceeds of the sale to the payment of the notes not otherwise secured, and pursue the personal security for the payment of tlipse to which he has affixed his name in assurance of their payment; otherwise, the creditor will be denied the right to the benefit of all of the security he has taken for the debt. The point has been expressly decided, as will appear by reference to the following cases: Mathews v. Switzler, 46 Mo. 301; Sturgeon Bank v. Riggs, 72 Mo. App. 239.”

It is insisted that the facts of this case bring it within the principle so declared. We find that the mortgage given to secure the $418 note signed by Jenkins and his sureties, J. A. Donolio and W. L. Donolio, contains the following recitals:

“This conveyance, however, is intended as a trust for the better securing R. Morgan, of Grandview, Texas, in the payment of my indebtedness to them, the same being evidenced by a certain promissory note, of which the following is a substantial copy:
“ ‘$418.00 Grandview, Texas, 5/23/1914.
“ ‘Oct. 1, 1914, after date, without grace, I, we, or either of us, promise to pay to the order of R. Morgan, of Grandview, Texas, four hundred and eighteen dollars, for value received, at the Farmers’ & Merchants’ National Bank, with interest from maturity at the rate of ten per cent, per annum and ten per cent, of principal and interest for attorney’s fee, if placed in the hands of an attorney for collection.
“ ‘Due. . “ ‘No. P. O. W. N. Jenkins.’
“And, whereas, it is contemplated that the first party may hereafter become indebted unto R. Morgan, of Grandview, Texas, in the further sum or sums of money to the amount of $150.00, either by note or open account, which said indebtedness now accrued, or to accrue in the future, it is agreed, shall all be payable at Grandview, Texas, and bear interest at the rate of ten per cent, per annum from date of actual accrual until paid, by whatever means the same shall accrue; and this conveyance is made for the security and enforcement of the payment of the said present and future indebtedness.”

There is, therefore, at least apparent force in the contention appellee now makes that the error of the trial court, if any, was in not applying the entire $105.10 payment to the $155 note only secured by a chattel mortgage. But after a careful consideration of the entire record we find ourselves indisposed to disturb our original conclusions. In the first place, we are not all entirely agreed that the payment of the $105.10 by Jenkins was not a voluntary payment, the writer particularly being inclined to think it was, in which event, under all of the authorities, Jenkins had the right to direct the application of the payment, as he undoubtedly did; and, second, that regardless of whether the payment was voluntary, we all are of opinion that its proper application is as announced in our original opinion. As we construe the evidence, we are not inclined to the view that the appellee’s first mortgage covered the debt evidenced by the $155 note. The provision quoted is evidently part of a printed form in common use by merchants who take crop mortgages, for the identical provision appears in the chattel mortgage given to secure the $155 note, and to this debt nothing appears indicating that the provision has any relevancy. The evidence shows that the first mortgage matured by its terms on October 1, 1914. The second matured on November 15, 1914, and contains the following express provision:

“It is agreed that R. Morgan will extend the payment of this note [the $155 note], or any part thereof, provided I am unable to pay it all this fall.”

The second mortgage covered an indebtedness in excess of the indebtedness to which the future or contingent indebtedness was limited in the first, and, as shown by the evidence, the future indebtedness in contemplation at the time of the execution of the first mortgage bears no relation to a stump puller, for which the second note was given, but had reference to the usual account for farm supplies. To illustrate: Ap-pellee in testifying said:

“Mi-. Jenkins read the mortgage that secured the $418 note. He made no complaint about it. He had it in his hand and signed it. He heard the part of it read there that provides for $150 additional indebtedness, and we discussed about Jenkins buying more goods from me. The account amounted to $58.93. The books there will show the amount of this account.”

At another point he testified:

“Jenkins had the mortgage [the $418 mortgage] in his hands and signed it. We discussed, about Jenkins running an account and buying goods from me.”

The stump puller, for which the $155 note was given, and upon which the second mortgage rested, seems to have been later secured by Jenkins in furtherance of an object altogether disconnected with farm supplies for that crop year. He testified:

“Some time later I wanted to buy a stump puller. There was about 65 acres of stumps on the place I was working, which belonged to Mr. George Hurley, and he told me that if I would clear it of stumps he would give me all I could make off of about 180 acres of land for two years. This 180 acres of land included the 65 acres that was in stumps. I had previously cleared a part of this land, and a part of it was in pasture; but I was to get all I could make off of the 180 acres for two years, if I would clear the 65 acres of stumps. I was trying to buy a stump puller, and was at Mr. Morgan’s store in Grandview, Tex., and he told mo that he had a stump puller there that he would sell me for $155.”

If, as we think the evidence tends to show, the $418 mortgage only covered the note therein specified and the account of $58.93 for merchandise, in payment of which it is undisputed part of the mortgaged crop was applied, then it was proper to apply the $105.10 payment on the $418 note, regardless of Jenkins’ direction to have it so done. As said in one of the cases appellee cites (Taylor v. Cockrell, 80 Ala. 236):

“The general rule is that, while a creditor has the right to apply a general payment, the debtor having made' no specific application, the law, in the absence of an agreement to the contrary, applies a payment realized from a particlar fund in relief of such fund. On this principle a mortgagee, in the absence of an agreement with the mortgagor, is bound to apply moneys realized from the sales of property covered by the mortgage to the mortgage debt; but, as between mortgagor and mortgagee, such money may, by the consent of the mortgagor, be applied to the payment of an unsecured debt.”

In addition to what we have said, it may not be inappropriate to further observe that the record shows that appellee’s mortgage was foreclosed on the stump puller yet in his possession, and there is no evidence pointed out tending to show that it is of less value than the amount of the $155 indebtedness to secure which the mortgage was given, and it is therefore not apparent that ap-pellee can be materially prejudiced by the application made by tbis.court of the $105.10 payment.

We conclude, on the whole, that the motion for rehearing should be overruled; and it is so ordered..
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McCAMANT v. McCAMANT et al.
    (No. 8379.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 27, 1916.
    On Motion for Rehearing, July 1, 1916.)
    1. Bills and Notes <&wkey;299 — Action Against Indorser — Time—Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, relating to the liability of an indorser, and providing how it may be fixed by suit against the maker, etc., in the district or county court, ■applicable to negotiable instruments indorsed alter as well as before maturity, there was no cause of action against the payee and indorser of a note, where suit thereon was not filed before the first term to which suit could be brought after the right of action accrued, or before the second term of such court, and where the suit was not filed until more than a year after the maturity of the note, and where there was no showing of the indorser’s waiver of the formalities requisite to fix his liability.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 680-705; Dec. Dig. i&wkey;> 299.]
    2. Judgment <&wkey;358— Suit for Vacation-Grounds — Insufficiency of Petition.
    A judgment will not be set aside for defects or insufficiency in the pleadings, especially where the alleged defect was amendable or had been waived by joining issue and by going to trial.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 696, 701; Dec. Dig. &wkey;358.]
    3. Judgment <&wkey;18(2) — Void Judgment — Want of Pleading.
    Where a petition .is defective in substance to the extent of failing to show a cause of action, a judgment for the plaintiff is null and void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 36; Dec. Dig. &wkey;18(2).]
    4. Bills and Notes <8=»*299 — Liability of Indorser — Primary or Secondary Liability.
    An indorser is ordinarily only secondarily liable, and only in a ease where the indorsement wá’s made at the execution and delivery of the instrument is he primarily liable so as to dispense with the necessity of fixing his liability by compliance with statutes regulating the bringing of such suits at a given term.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 680-705; Dec. Dig. <&wkey;> 299.]
    5. Bills and Notes <&wkey;299 — Liability of Indorser — Pleading—Excuse of Delaying Action.
    To bind an indorser where suit has not been brought within the time required by law, matters of excuse must be alleged and proven.
    [Ed. Note. — For other cases, see Bills and Notes. Cent. Dig. §§ 080-705; Dee. Dig. c&wkey; 299.]
    6. Judgment <&wkey;>485 — Vacation — Invalidity.
    A judgment, the invalidity of which is apparent upon the record, may be successfully attacked at any time and under any circumstances.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 919; Dec. Dig. &wkey;?485.]
    7. Courts <&wkey;35 — Jurisdictional Facts — Presumption.
    Every presumption will be indulged in favor of the records of superior courts; and, if the record is silent as to jurisdictional facts, it will be aided by presumptions; but there can be no presumption against the record, so that where it recites jurisdictional facts not sufficient to confer jurisdiction, there can be no presumption that the recital is incorrect or incomplete.
    [Ed. Note: — For other cases, see Courts, Cent. Dig. §§ 140, 141, 145, 146; Dec. Dig. <&wkey;>35.]
    8. Judgment <&wkey;38G(2) — Suit for Vacation —Laches.
    Neither lapse of time nor laches affect the right to vacate a judgment void on its face.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 736; Dec. Dig. &wkey;386(2).]
    On Motion for Rehearing.
    9. Bills and Notes <&wkey;467(3) — Action against Indorser — Pleading — Time of Transfer.
    A petition in an action against the maker, the payee and indorser of a note, alleging that the note was due and wholly unpaid; that plaintiff was an innocent holder for value; that the defendant payee in the note indorsed it in blank and in due course of business to the plaintiff, who became the owner and holder thereof for .value, not expressly alleging the date of the indorsement — in effect averred that plaintiff acquired the note before maturity.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1488; Dec. Dig. <i&wkey;467(3).]
    10. Common Law <&wkey;6 — Law Merchant-Adoption by State.
    The law merchant is part of the common law adopted by the state of Texas.
    [Ed. Note. — For other cases, see Common Law, Cent. Dig. § 6; Dec. Dig. <&wkey;>6.]
    11. Bills and Notes <&wkey;327 — Transfer— “Holder in Due Course.”
    A “holder in due course” is one who has taken an instrument complete and regular on its face, and has become the owner of it before it was overdue (citing Words and Phrases, 2d Series).
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 792; Dec. Dig. <S&wkey;327.)
    12. Bills and Notes &wkey;>327 — Transfers— “Bona Fide Holder for Value.”
    An innocent or “bona fide holder for value” of negotiable paper is one who has taken it in good faith for a valuable consideration in the ordinary course of business and when it was not overdue.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 792; Dec. Dig. <&wkey;>327.
    For other definitions, see Words and Phrases, First and Second Series, Bona Fide Holder.]
    13. Judgment <&wkey;24S — Validity—Necessity of Pleadings.
    Until their action is called in exercise by pleadings, courts have no more power to render judgment in favor of a person than they have to render judgment against a person until he has been brought within their jurisdiction.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. <&wkey;>248.]
    Appeal from Tarrant County Court; Charles ¶. Prewitt, Judge.
    Suit by Mrs. Minnie May McCamant, on behalf of herself and. as community administra-trix of the estate of herself and of her deceased husband, W. A. McOamant, against R. Tj. McOamant and others, to vacate a judgment obtained by defendant McOamant. Judgment against plaintiff individually and as community administratrix, denying the relief sought, and for costs of suit, and she appeals.
    Reversed, and cause remanded.
    N. J. Wade, of Ft. Worth, for appellant. McCart, Curtis & MeCart, of Ft. Worth, for appellees.
   BUCK, J.

On January 14, 1910, J. W. and J. H. Woodard, of Tarrant county, executed and delivered to Mrs. Minnie May McOamant, community administratrix of the estate of herself and her husband, W. A. McOamant, deceased, a certain note in the sum of $700, due August 1, 1910. On January 1, 1911, Mrs. McOamant for the purpose of securing her brother-in-law, R. L. McOamant in the payment of certain indebtedness due him by the community estate of which Mrs. McOa-mant was administratrix, and to secure him against loss by reason of the payment of a certain $400 noté, which W. A. McOamant had, prior to his death, executed in favor of an El Paso bank, transferred and delivered the Woodard note to said R. L. McOamant, and indorsed on the back thereof as follows: “Minnie May McOamant, Community Admin-istratrix.” On October 30, 1911, suit was filed in the county court of Tarrant county for civil cases by R. L. McOamant on his note and against J. W. and J. H. Woodard and Minnie May McOamant, as community ad-ministratrix, the petition alleging, in part, as follows:

“That on, to wit, January 14, 1910, the defendants J. W. Woodard and J. H. Woodard, made, executed and delivered, for a valuable consideration, their certain promissory note of that date in the sum of $700, payable to the order of Minnie May McOamant, community ad-ministratrix, payable on or before August 1, 1910, with interest after date at the rate of 8 per cent, per annum. Said note further stipulated that, should it not be paid at maturity and collected by an attorney or legal proceedings an additional sum of Í0 per cent, on the amount of the note should be added as attorney’s fees. And said note is long since due and wholly unpaid. That plaintiff is an innocent holder for value of said note, for that the defendant, payee in said note, indorsed the same in blank, and in due course of business plaintiff became the owner and holder of same for value, and brings this suit by his attorney to enforce collection of the same.”

J. H. Woodard and Mrs. McOamant having been served, and Mrs. McOamant having filed her formal answer, consisting of general demurrer and general denial, on March 12, 1912, judgment was entered in favor of R. B. McOamant, plaintiff, against J. H. Woodard and Mrs. Minnie May McOamant, as ad-ministratrix, in the sum of $903, principal, interest and attorney’s fees. The judgment further recited that:

“Plaintiff asked that the defendant J. W. Woodard be dismissed from said cause; sheriff’s return showing that said defendant was deceased. It is therefore ordered that said cause be, and it is hereby, dismissed as to said defendant, at the cost of the plaintiff.”

On October 8, 1914, this suit was filed by Mrs. Minnie May McOamant in the same court, in which R. L. McOamant recovered the judgment hereinabove set out. Mrs. Mc-Oamant, on behalf of herself and as community administratrix of the estate of herself and deceased husband, sought to have vacated the judgment of March 12, 1912, aforesaid, and prayed for other relief not necessary here to consider, making parties defendant R. Li. McOamant and his attorney and one W. H. James, who was alleged to reside in Hunt county, Tex., and who, it was alleged, was setting up some claim to the judgment aforementioned. As equitable grounds for the setting aside and vacating of the judgment obtained by R. L. McOamant against her, plaintiff pleaded, in part, as follows:

(1) That the note transferred by her to R. Li. McOamant was indorsed without recourse. (This allegation was not sustained by proof.)

(2) That suit thereon was not filed before the first term to which suit could be brought after the right of action had accrued, or before the second term of said court, as provided in article 579, Yernon’s Sayles’ Texas Civil Statutes, but in fact suit was not filed until more than a year after the maturity of the note, and that therefore the plaintiff in the former suit had not complied with the law necessary to fix the liability of an in-' dorser.

(3) That the trial court erred in dismissing, upon the request of plaintiff, the suit as to J. W. Woodard, alleged to be deceased, said Woodard being one of the makers of said note sued on, and plaintiff herein being only secondarily liable, if at all, as indorser on said note.

(4) In the suit whose judgment was sought to be set aside, plaintiff made no allegations or contentions, nor was any proof offered to show the insolvency of the makers of said note, or of the estate of J. W. Woodard, deceased, of which the said J. H. Woodard was administrator, and that, therefore the plaintiff herein was not bound on said note, inasmuch as R. L. McOamant made no claim against her except as an indorser.

(5) That the petition of plaintiff in the suit whose judgment was attacked contained no allegation that plaintiff herein bound herself, or intended to bind herself, thereby to pay said note, and that therefore the petition alleged nó cause of action against her.

She further alleged that:

“She had no actual knowledge that this judgment had been entered, or even that the case had been set down for 'trial; that while it is true a formal answer of general demurrer and general denial had been filed by her attorneys, neither she nor her said attorneys took any further note of the case, nor was it necessary, under the state of the pleading, without same had been amended, that she should do so.”

The case was submitted to the jury on special issues, which, with the answers thereto, are hereinarter set out:

Q. (1) Were J. W. and J. H. Woodard insolvent from the 1st day of January, 1911, until the 30th day of October, 1911. A. Yes.
“Q. (2) If you answer ‘yes’ to the first question, then did such insolvency continue during the whole period between the 1st day of January, 1911, and the 30th day of October, 1911? A. Yes. ' .
“Q. (3) Were J. W. and J. H. Woodard insolvent on the first Monday in January, 1911? A. Yes.”

Upon the motion of defendants R. U. Mc-Camant, W. H. James, and J. H. Woodward, the latter individually and as the administrator of the estate of J. W. Woodard, deceased, judgment was rendered against plaintiff, both personally and as community adminis-tratrix, for all costs of suit, and denying the relief sought, tfrom which judgment the plaintiff appeals.

We are of the opinion that the petition of the plaintiff in the suit of R, L. McOamant against plaintiff herein and others, which resulted in the judgment of March 12, 1912, did not show a cause of action against Mrs. MeCamant as an indorser, and was bad as against a general demurrer. In the case of Beauchamp v. Chester et al., 39 Tex. Civ. App. 234, 86 S. W. 1055, it is held that a petition, disclosing that defendant is sued as an indorser, and that the time has passed when his liability as such can be fixed, either by suit or protest, and failing to allege any waiver by defendant of formalities requisite to fixing his liability, is bad on general demurrer. In the case of Smith v. Richardson Lbr. Co., 92 Tex. 448, 49 S. W. 574, Judge Brown, speaMng for the court, says:

“If the plaintiff’s petition had not contained the allegation that J. C. Tyree was notoriously insolvent at the time the suit should have boon brought to fix the liability of the indorser, no cause of action would have been shown against W. B. B. Smith, because it appeared from the allegations in the petition that suit was not brought either to the first or the second term of the court after the debt matured. It devolved upon the plaintiff to allege and prove in this ease one of the exceptions expressed in article 1204 (now article 1843), in order to maintain this action against the indorser, who was discharged by the failure to sue at the first or second term of the court unless one of the exceptions which relieved the holder of the note from bringing such suit existed. Fisher v. Phelps. 21 Tex. 555; Elliott v. Wiggins, 16 Tex. 596.”

Article 579, supra, applies to negotiable instruments indorsed after maturity, as well as those indorsed before maturity. Caldwell v. Byrne, 30 S. W. 836; Burke v. Ward, 32 S. W. 1047. Therefore it would appear that this case comes within the rule laid down by the Supreme Court in Smith v. Lumber Co., supra. It is said in 23 Cyc. 929:

“A judgment will not be set aside on account of defects or insufficiency on the pleadings, especially where the alleged fault was amendable, or has been waived by joining issue and going to trial; although -it seems a judgment may be vacated if the declaration or complaint states no cause of action, or contains no averments showing liability on the part of the defendant.”

1Black on Judgments (1891) § 170, defines and distinguishes void and voidable judgments, and in section 183, it is said:

“A judgment must accord with and be warranted by the pleadings of the party in whose favor it is rendered. * * * So where the declaration is defective in substance to the extent of failing to show a cause of action, no judgment can be entered upon it.”

While it is asserted that a judgment cannot be regarded as entirely void when jurisdiction over both the parties and the subject-matter is once obtained, and that no error committed in the exercise of that jurisdiction can make the proceedings or judgment of the court void (Freeman on Judgments, § 135a), yet, as said by Black in his work aforementioned (section 184):

“In no proper sense can a court of law be said to have jurisdiction if there is no specific question or controversy submitted for its determination. It is not enough that the parties are properly in court. That does, not give the tribunal power to adjudicate any and all matters of difference between them. When we speak of ‘jurisdiction of the subject-matter,’ we do not mean merely cognizance of the general class of actions to which the action in question belongs, but we also mean legal power to pass upon and decide the particular contention which the judgment assumes to settle. And how can a court acquire jurisdiction of the particular contention, except it be clearly marked out and precisely defined by the pleadings of the parties? And how can that bo done, in any mode known to the law, save by the formation of a regular issue?”

For illustration, the district court has jurisdiction over and power to grant divorces, and also to determine questions involving the title to land. Suppose a son should sue his father and mother for an interest in land, and upon a hearing, with all parties before the court, the court should proceed to grant a divorce to one of the parents, could it be reasonably contended that such a judgment was not absolutely void, a mere nullity? We feel sure no one would so contend.

An indorser is ordinarily only secondarily liable, and only in the case where the indorsement was made at the time of the execution and delivery of the instrument to the payee can he be said to be primarily liable, so as to dispense with the necessity, on the part of him who seeks to hold such indorser primarily liable, of fixing such liability by a compliance with statutes regulating the bringing of such suits to a given term. Carr’s Ex. v. Rowland, 14 Tex. 275; Kennon v. Bailey, 15 Tex. Civ. App. 28, 38 S. W. 377; Herrick v. Smith, 148 S. W. 1173; Kampmann v. Williams, 70 Tex. 568, 8 S. W. 310. In order to bind an indorser where suit has not been brought within the time required by law, matters of excuse must be alleged and proven. Mullaly v. Ivory, 30 S. W. 259; Seguin Milling & Power Co. v. Guinn, 137 S. W. 456; Buster v. Woody, 146 S. W. 689; Dunn v. Townsend, 163 S. W. 312; Bank v. Powell, 149 S. W. 1096; Dillard v. Lbr. Co.,

141 S. W. 1023; Lbr. Co. v. Lee, 7 Tex. Civ. App. 522, 27 S. W. 161.

Appellees urge that appellant’s petition being in the nature of a bill of review, in order to entitle her to the relief sought, it should show: (1) Diligence on her part to prevent the original judgment; (2) a good defense to the original suit; (3) that a different result would follow on a new trial — none of which does her petition show. It may be conceded that appellant’s petition is barren of such a showing, but by reference to the cases cited by appellees in support of this proposition (Burnley v. Rice, 21 Tex. 183; Clegg v. Darragh, 63 Tex. 361; Holliday v. Holliday, 72 Tex. 581, 10 S. W. 600; Brownson v. Reynolds, 77 Tex. 254, 13 S. W. 086; Johnson v. Templeton, 60 Tex. 238; Harn v. Phelps, 65 Tex. 592, etc.), the basis for the claimed invalidity of the judgment sought to be set aside in the cited eases was not apparent of record, or manifest upon the face of the pleadings, as here. A judgment whose invalidity is apparent upon the record may be successfully attacked at any time and under any circumstances. Milam County v. Robertson, 47 Tex. 222; Van Fleet on Collateral Attack, § 4; Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347-349. Freeman on Judgments, § 116, says:

“If the want of jurisdiction over either the subject or the person appears by the record, there is no doubt the judgment is void.” “The general rule, as stated, is that every presumption will be indulged in favor of the records of superior courts. An important corollary to this rule is that there can be no presumption against the record. For if the record imports absolute verity, its recitals must be equally conclusive when they make against the jurisdiction as when for it. If the record is silent as to jurisdictional facts, it will be aided by presumptions. But if it recites such facts, and the facts recited are not sufficient to confer jurisdiction, there can bo no presumption that the recital is incorrect or incomplete.” 2 Black on Judgments, §§ 276-278.

Nor will lapse of time nor laches affect the right to vacate a judgment void on its face. Black on Judgments, § 313; Cunningham v. Taylor, 20 Tex. 126-130.

For the reasons indicated, we are of the opinion that the court below erred in holding that the petition of R. L. McCamant was a sufficient basis for the judgment of March 12, 1912, and in not holding said judgment void, and therefore it is our conclusion that the judgment herein should be reversed, and the cause remanded for further proceedings in accord with this opinion; and it is so ordered.

On Motion for Rehearing.

In appellee’s motion for rehearing, his counsel urgently insists that we erred in our original opinion, and cites Belcher v. Ross, 33 Tex. 13, Canales v. Perez, 65 Tex. 293, and George v. Vaughan, 55 Tex. 131, as sustaining the contention that the petition in the original suit, filed October 30, 1911, was good as against a general demurrer, and that therefore the judgment rendered thereon was not void. He admits that of the three eases cited, the first is the strongest in support of his contention, and that, so far as he has found from diligent investigation, it has never been cited, either by the Supreme Court, or by any of the Courts of Civil Appeals. In this case, it was held that in support of a judgment by default, on a note, the presumption will be indulged that the in-dorsement was made subsequent to the date of the note, and that suit was brought in due time to fix the indorser’s liability. While it appears that some statements and arguments are used in the course of the cited opinion as to the expression, “were indebted to him,” being an allegation of the fact that suit was filed in due time, which expression we consider, not as an allegation of fact hut as a conclusion of law of the pleader, yet, so far as the conclusions therein reached may apply to the issue presented in the instant case, they are not at variance with the views expressed in our original opinion.

While it is true that appellee, plaintiff in the original suit, did not in so many words allege the date of the indorsement by Mrs. McCamant, yet by the use of certain expressions contained in the petition he did in effect aver that he acquired the note before maturity. He alleged that he was an “innocent holder for value,” and that defendant indorsed the note in blank, and “in due course of business plaintiff became the owner and holder for value.” In the law merchant, part of the common law adopted by this state, these terms have a meaning more or less fixed." In the “negotiable instruments law,” adopted by many of the states, and embodying, in the main, the principles of the law merchant, it is provided:

“ ‘A holder in due course' is one who has taken the instrument under the following conditions: First, that the instrument is complete and regular on its face; second, that be became owner of it before it was overdue,” etc. 2 Words and Phrases (Second Series) 895, and cases there cited; 7 Cyc. 925 (B); 3 R. C. L. § 238, p. 1031, and section 250, p. 1045; 1 Daniel on Negotiable Instruments, § 769a, p. 885 ; Kneeland v. Miles, 24 S. W. 1113-1115.

An innocent or bona fide holder for value of negotiable paper is one who has taken it in good faith for a valuable consideration in the ordinary course of business, when it was not overdue, etc. 2 Enc. Digest (Texas) p. 904, § B, and cases there cited.

Hence we are forced to the conclusion that plaintiff in the original suit did, in effect and in fact, allege the transfer to Min before the maturity of the note, which was some 15 months before suit was filed. As was said in the original opinion, no presumption can be indulged against the record to' support the judgment. Courts have no more power, until their action is called into exercise by pleadings, to render judgment in favor of a person than they have to render judg-

ment against a person until he has heen brought within their jurisdiction. Dunlap v. Southerlin, 63 Tex. 38, 43; Sandoval v. Rosser, 26 S. W. 930; Railway Co. v. Vieno, 26 S. W. 230; Flores v. Smith, 66 Tex. 115, 18 S. W. 224; Anding v. Perkins, 29 Tex. 348; Neill v. Newton, 24 Tex. 202.

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