author: McMEANS, J.

text:
    GULF, C. & S. F. RY. CO. v. PRAZAK et ux.
    (No. 6114/6856.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 13, 1914.)
    1. Appeal and Eebob (§ 560*) — Statement of Facts — Consent of Parties — Statutes.
    Under Rev. St. 1911, arts. 1924, 2070, requiring the filing of a transcript of the stenographer’s notes with the clerk and requiring the party appealing to cause to be prepared from the transcript filed a statement of facts, etc., a statement of facts prepared from the stenographer’s notes, no transcript of which had been filed, should be stricken, where the parties have not agreed to a statement prepared in some other manner as authorized by article 2072.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2490-2493; Dec. Dig. § 560.*]
    2. Appeal and Error (§ 638*) — Statement of Facts — Consent of Parties.
    Rev. St. 1911, art. 1924, requiring the filing of a transcript of the stenographer’s notes with the clerk of court, article 2070, providing that the party appealing shall cause to be prepared from the transcript filed, etc., a statement of facts, and article 2072, providing that nothing shall prevent parties from preparing statements of facts on appeal, independent of the notes of the reporter, must be construed together, and, where the parties on appeal have agreed to a statement of facts by virtue of article 2072, they lose the right to object that articles 1924 and 2070 have not been complied with.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2785, 2786; Dee. Dig. § 638.*]
    Appeal from District Court, Burleson County; Ed. R. Sinks, Judge.
    Action by Rudolph Prazak and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Motion to strike out statement of facts.
    Denied.
    Terry, Cavin & Mills and A. H. Culwell, all of Galveston, for appellant. W. M. Hil-liard and W. W. Rankin, both of Caldwell, for appellees.
   McMEANS, J.

At a former day of this term of the court we sustained appellees’ motion to strike out the statement of facts in this case on the' ground that the requirements of articles 1924 and 2070, Revised Statutes 1911, had not been observed in its preparation. Article 1924 provides that:

“In case an appeal is perfected from the judgment rendered in any case, the official shorthand reporter shall transcribe the testimony and other proceedings recorded by him in said case in the form of questions and answers, certifying that such transcript is true and correct, and shall file the same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court.' Said transcript shall be made in duplicate,” etc.

Article 2070 provides:

“Upon the filing in the office of the clerk of the court by the official shorthand reporter of his transcript as provided in section 5 of this act (article 1924), the party appealing shall prepare or cause to be prepared from the transcript filed by the official shorthand reporter, as provided in section 5 of this act, a statement of facts, in duplicate, which shall consist of the evidence adduced upon the trial, * * * but the same shall, when agreed to by the parties and approved by the judge, or in the event of a failure of the parties to agree and a statement of facts is prepared and certified by the judge trying the case, be filed in duplicate with the clerk of the court, and the original thereof shall be sent up as a part of the record in the cause on appeal. Provided, however, that the official shorthand reporter shall, when requested by the party appealing, prepare from the transcript filed by the official shorthand reporter, as provided in section 5 of this act, a statement of facts in narrative form, in duplicate, and deliver the same to the party appealing,” etc.

The statement of facts accompanying the record appears to have been prepared by the official shorthand reporter from his shorthand notes taken in the trial, and no transcript of the shorthand notes in question and answer form was filed in duplicate, nor was the statement of facts prepared by the reporter from any transcript of the evidence filed by him with the clerk of the court below, nor were the provisions of the articles above quoted complied with in any respect in the preparation of the statement of facts. Entertaining the view, to which we still adhere, that the requirements of the articles are mandatory at least to the extent that an appellee can require full compliance therewith before he will be bound by a statement of facts to which he has not agreed, and overlooking at the time the provisions of article 2072, to which we will hereinafter refer, we granted appellee’s motion and struck out the statement of facts.

The statement of facts in this case was agreed to and signed by all the parties to this appeal. Article 2072, Revised Statutes 1911, which is the same as section 13 of the General Stenographer’s Act passed by the Legislature in 1911 (Acts 1911, p. 264), contains the following provision:

“Nothing in this act shall be so construed as to prevent parties from preparing statements of facts on appeal independent of the transcript of the notes of the official shorthand reporter.”

Now, we think that the provisions of articles 1924, 2070, and 2072, construed together, simply mean that an appellee has the right to require that the statement of facts be prepared in the manner provided by articles 1924 and 2070, and, if prepared in any other manner and he has not agreed to it, he has the undoubted right to have it stricken out by this court upon motion seasonably presented; but the parties — that is to say, the appellant and appellee — may make or agree to a statement of facts prepared in any other manner, and, when so made or agreed to, it is binding upon the appellee, and he has lost his right to object that the-provisions of - article 1924 and 2070 were not observed in its preparation.

As the statement of facts in this case was signed by both parties and agreed to by them, we think the appellee has no right to complain, and that therefore we erred in sustaining his motion to strike out, and our former order striking out the statement of facts has been set aside.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    FIRST STATE BANK & TRUST CO. OF HEREFORD v. SOUTHWESTERN ENGINEERING & CONSTRUCTION CO. et al.
    (No. 612.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 7, 1914.)
    1. Evidence (§ 130) — Written Instruments — 'Contract to Convey Land — Deed —Merger.
    Where a contract to convey land and a deed executed contemporaneously were of the same date, the deed being intended to carry out the contract, the contract was merged in the deed, and, not having been acknowledged or recorded, was res inter alios acta, and inadmissible as between third persons.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 403; Dec. Dig. § 130.]
    2. Appeal and Error (S 499) — Assignments op Error — Review—Bribe.
    An assignment of error complaining of the exclusion of evidence cannot be considered on appeal, where appellants’ brief fails to show that the ruling has been preserved by a bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    3. Apeeal and Error (§ 719) — Fundamental Error — Assignment oe Error — Necessity.
    The erroneous direction of a verdict for defendant is fundamental, and must be considered on appeal, even without an assignment of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    4. Appeal and Error (§ 1216)-Reversal-Remand — Conclusiveness.
    Where a judgment is reversed, and the cause remanded, the judgment of the appellate court is binding on the trial court, and a failure to comply with such judgment is ground for reversal, though'appellant may also have a remedy by mandamus.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4700; Dec. Dig. § 1216.].
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by the First State Bank & Trust Company of Hereford, Tex., against the Southwestern Engineéring & Construction Company, in which an attachment was issued against land claimed by F. M. Barden.
    Judgment for defendants, and plaintiff appeals. Reversed and remanded, with instructions.
    See, also, 153 S. W. 680.

      G. W. Barcus, of Waco, for appellant. Cooper & Merrill, of Houston, and Lumpkin & Harrington, of Amarillo, for appellees.

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

   HALL, J.

The pleadings in this case have not been amended since the former appeal, reported in 153 S. W. 680, to which we refer for a statement of the issues.

The first assignment complains of the action of the court in permitting the defendant to read in evidence the contract for the sale of the real estate involved in this controversy, between W. H. Rayzor and W. A. Cullen. Plaintiff objected to the introduction of this contract for the following reasons:

“That there is a deed on record from Rayzor to Cullen setting out the terms of the sale and the consideration paid therefor, and this is seeking to vary that; that it is not recorded and could not in any way bind the plaintiff or affect its rights; that it purports to be a contract between W. H. Rayzor and W. A. Cullen, to which none of the parties to this suit are parties; it is an ex parte statement made by those parties, and without giving the plaintiff an opportunity to examine them on the question, and would be mere hearsay statements, which could not in any manner bind this plaintiff; that it is not under the sanctity of an oath, is not acknowledged nor filed for record, and is not an instrument that plaintiff had notice of, the plaintiff claiming to be an innocent purchaser for value.”

We think these objections should have been sustained and the contract excluded. While it is true that the contract bears the same date as the deed conveying the land, the rule that, where two or more written instruments executed contemporaneously between the same parties and in reference to the same subject-matter are shown, they must be treated as one instrument and forming the same contract, does not obtain. The deed is evidently a consummation of the trade, and the contract has been merged in it. Besides, this is a suit between strangers to this instrument, and since it had not been acknowledged and recorded, and was res inter alios acta, it should have been excluded. Wichita Palls Compress Co. v. W. L. Moody & Co., 154 S. W. 1032; Stuart v. Kohlberg, 53 S. W. 596; Stone v. Stitt, 132 S. W. 862; Ellis v. Le Bow, 30 Tex. Civ. App. 449, 71 S. W. 576.

The second assignment cannot be considered, because appellant’s brief fails to show that the action of the court in excluding the testimony has been reserved by bill of exception. Saenz v. Mumme & Co., 85 S. W. 59.

The action of the court in directing a verdict, if error, is fundamental, and must be considered by this court, even in the absence of an assignment of error. On the former appeal the judgment was reversed and the cause remanded, because the court failed to submit the issues of fact to the jury. We thought the plaintiff was entitled to have the issues raised by the pleadings and supported by the evidence passed upon by a jury, and we are of the same opinion now. The issues as to whether or not the land in controversy belonged to P. M. Barden or to the appellee, whether or not the deed executed by the townsite company to Barden was in fact a mortgage, and, if a mortgage, the amount secured thereby, and the amount, if any, paid by Barden on the land for and in behalf of the Colorado,-Hereford & Gulf Townsite Company, should have been submitted for determination by the jury, and the cause will be remanded, with instructions to submit such issues, together with any others which may be properly raised by the pleadings and the evidence. When a judgment is reversed and a cause remanded because of errors committed by the trial court, the judgment of the appellate court is binding upon the lower court, .and a failure to comply with such judgment is ground for reversal (Oglesby v. Gilmore, 8 Ga. 95; Brooks v. Miller, 113 Ga. 1008, 39 S. E. 429), although the appellant may have open to him at the same time a remedy by mandamus (Witherspoon v. Daviss, 163 S. W. 700; Wells v. Littlefield, 62 Tex. 28).

Reversed and remanded, with instructions.


author: RAINEY, C. J.

text:
    KIMBRELL v. CHASE.
    (No. 7209.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 7, 1914.)
    Pleading (§ 279) — Amendment—1Time—Announcement oe Ready eor Trial.
    Where a wife as community survivor sued for breach of contract for sale of land to her husband and the answer set up a written cancellation of the contract and a forfeiture by reason of nonpayment, leave granted to plaintiff over two months from answer and after announcement of ready for trial to file a supplemental petition, consisting of a plea non est factum, is an abuse of discretion, though Rev. St. 1911, art. 1824, requiring all pleadings to be filed before announcement of ready for trial, is not mandatory.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by Mrs. G. L. Chase against Prank Kimbrell. Prom a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Woods & Morrow, of Kaufman, for appellant. Ross Huffmaster, of Kaufman, for ap-pellee.

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

   RAINEY, C. J.

Mrs. Chase, as community survivor of her deceased husband, George L. Chase, brought this suit to recover damages for a breach of a contract for the sale of land made by. Prank Kimbrell with her deceased husband. Kimbrell, among other things, pleaded a written agreement between himself and George L. Chase, canceling the contract for the sale of the land, by the terms of which Chase was to pay the balance of the first payment, $150, on or before the 8th day of March, and if not paid at that time Chase was to vacate the land and surrender any claim to the $100 deposited by him as a forfeit, and the said Kimbrell was to be the owner thereof; that said Chase had failed to pay said $150 on said date, and the $100 theretofore paid had become forfeited. A trial resulted in a verdict and judgr ment in favor of appellee for $225, from which this appeal- is taken by the appellant Kimbrell.

When the case was called for trial plaintiff made a verbal motion for a continuance, which was overruled. The court then called upon defendant for an announcement, and the defendant announced ready, whereupon the plaintiff asked leave of the court to file his first supplemental petition, consisting of a plea of non est factum, and setting up the incapacity, physically and mentally, of her husband to make a contract, which was granted by the court, and to which action the defendant excepted, and here assigns such action as error.

The contention is that article 1824, R. S. 1911, requires all pleadings to be filed before announcement of ready for trial, and not thereafter, and that said statute is mandatory, and that the. filing of said plea was in violation of law and not permissible. In construing this article our courts have not treated it as mandatory, but as giving to the trial judge a large discretion in the conduct of a trial, but this discretion should always be exercised so as to attain the ends of justice. Telegraph Co. v. Bowen, 84 Tex. 476, 19 S. W. 554; Fidelity & Casualty Co. v. Carter, 23 Tex. Civ. App. 359, 57 S. W. 315.

In the case of Telegraph Co. v. Bowen, supra, a ruling permitting the plaintiff to file an amendment after trial had begun was made, but in that case the plaintiff was held not guilty of laches in not filing it sooner. We cannot say as much in this case for plaintiff. On November 17th, Kimbrell filed his answer setting up a written agreement between him and plaintiff’s husband canceling said contract for the sale of land and plaintiff’s amendment pleading non est fac-tum was filed January 30th following. Under these circumstances we think the amendment came too late. It is true if the defendant had asked for it, he would have been entitled to a continuance on such terms as the court might impose as to costs, etc., but not having done so, and appellant not having made a legal showing for a continuance in the first instance, she should not have been permitted to file the amendment and place upon defendant the necessity of applying for a continuance. In any event, in view of this action of the court, we think the court erred in not granting defendant a new trial on the ground of newly discovered evidence, which tended strongly to show that Chase was of sound mind when he made the contract of cancellation.

The court also erred in failing to grant a new trial because of the insufficiency of the evidence to warrant a recovery for the amount of damages assessed. If under the evidence it could be said that Mrs. Chase was entitled to damages, the evidence fails to show that she was entitled to the amount recovered.

The judgment is reversed, and cause remanded.


author: FLY, C. J.

text:
    ANDREWS v. KING.
    (No. 5347.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 11, 1914.)
    1. Courts (§ 501) — Jurisdiction os' Federal and State Courts — Receivership Proceedings.
    An order of a federal court giving the receiver of a railroad authority “to defend all such suits as may be brought against said receiver, as well as all suits pending or heretofore brought against said railway,” did not authorize a suit in a state court against the receiver to recover damages to a shipment of cattle occurring before the appointment of the receiver.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1409; Dec. Dig. § 501.]
    2. Receivers (§ 174) — Leave of Court to Sue.
    A receiver may not be sued without the leave of the court by whom the receiver was appointed.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. § 174.]
    3. Courts (§ 501) — Conflicting Jurisdiction of State and Federal Courts — Receivers.
    An action in a state court for injuries to a shipment of horses may not be brought without leave against a receiver of a railroad, appointed in a federal court, where the claim arose two or three months before the receiver was appointed, as such claim is not within Act March 3, 1911, e. 231, § 66, 36 Stat. 1104 (U. S. Comp. St. 1913, § 1048), providing that a receiver appointed by the United States court may be sued in respect of any act'or transaction of his in carrying on the business connected with such property, without the previous leave of the court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1409; Dec. Dig. § 501.]
    Appeal from San Patricio County Court; P. A. Hunter, Judge.
    Action by J. W. King against Frank Andrews, as receiver of the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause dismissed.
    Claude Pollard, of Kingsville, and Robt. W. Stayton, of Corpus Ckristi, for appellant.

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

   FLY, C. J.

Appellant was sued, by appel-lee, as receiver of the St. Louis, Brownsville & Mexico Railway Company, alleging that he had been appointed receiver by a court of competent jurisdiction, which court had authorized the receiver “to defend all such suits as may be brought against said receiver, as well as all suits pending or heretofore brought against said railway company,” and that “by so doing gave permission to plaintiff to bring this suit.” The cause was tried without a jury, and judgment rendered for appellee for $673.

Appellant was appointed receiver of the railway company on July 5, 1913, by the United States District-Court of the Southern District of Texas, and the cause of action sued on by appellee accrued in April, 1913, before the receivership was ordered. There was no permission given by the federal court to appellee to file this suit. The portion of the order quoted did not give any such authority. The receiver was authorized to pay the necessary expenses of operating the railway, taxes, wages, and salaries of employés of the company, and the trafiic and car mileage balances for car and equipment repairs occurring within six months prior to the date of the order. The claim of appellee did not fall within either of the class of debts whose payment was authorized by the order.

It is the rule that a receiver cannot be sued without the leave of the court by whom the receiver was appointed. Alderson, Receivers, § 521; Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672. If the federal court had granted such permission, appellee could not have recovered, because his debt was not among those made preferential by the order of the court. It is provided in the United States statute of March 3, 1911, that a receiver of property, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property without the previous leave of the court in which the receiver was appointedand this seems to be the only case in which the receiver can be sued without leave of the appointing court. U. S. 'Comp. St. 1913, § 1048.

The claim of appellee was one arising out of injuries to a shipment of horses transported by the railway company from Sam Fordyee, Tex., to Newport, Ark., two or three months before the receiver was appointed. The receiver had no power or authority to pay the claim, and the county court could not compel him to pay it. Davies v. Railway (Tex. Civ. App.) 133 S. W. 295; Freeman v. Barry (Tex. Civ. App.) 133 S. W. 748.

The judgment is reversed, and the cause dismissed.


author: CARL, J.

text:
    ROACH, STANSELL & CRANE v. TIMPSON et al.
    (No. 5352.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 11, 1914.)
    1. Fbauds, Statute of (§ 158) — Actions— Evidence — Sufficiency.
    In an action to recover the purchase price of coal ordered by another, evidence held to warrant a finding that the coal was sold to defendants, and that they agreed to pay for it.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. § 158.]
    2. Fbauds, Statute of (§ 23) — Pbomise to Pat Debt oe Anotheb. ■
    The fact that coal was ordered by another does not make defendants’ agreement to pay for it a promise to discharge the debt of another, where plaintiff refused to deliver the coal until defendants agreed themselves to pay for it.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge. 1
    Action by S. C. Timpson and others against Roach, Stansell & Crane. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Swearingen & Ward, of San Antonio, for appellant. Guinn & McNeill, of San Antonio, for appellees.

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

   CARL, J.

Appellee S. C. Timpson sued S. P. Bennett and Roach, Stansell & Crane, a partnership composed of M. J. Roach, Walker Stansell, and F. Crane, appellants, to recover for certain cars of coal, which, it is alleged, were ordered by S. P. Bennett while a subcontractor under Roach, Stansell &. Crane in the construction of the Medina Irrigation Company canals. The petition alleges that Bennett ordered the coal over the telephone, but, before the order was accepted and shipped, that appellee Bennett called up Roach, Stansell & Crane, and they agreed to pay for the coal and freight; that they said they were in substance furnishing the subcontractors, and were charging them 10 per cent, on invoices; and that in view of this fact, and the further fact that they did not want the work delayed, the firm would pay the account for the coal. There is an intervention in regard to a machine which had been attached and which was under a mortgage, but we are not concerned here with that matter. The verdict was in favor of appellee for $1,569.44 against Roach, Stansell & Crane, as well as Bennett, and that firm has appealed.

The court submitted a charge, which was very fair to appellants, and since the allegations of the petition were sufficient to state a cause of action and to show a consideration, and that this was an original undertaking of appellants to be held responsible for the debt, and the jury has found for appellee, we are here concerned only with the proposition as to whether the evidence supports those allegations.

8. C. Timpson, the plaintiff, testified:

“I made a sale of one car of coal to Mr. Bennett, to be shipped to Dunlay. He asked me what price I could place him a car at Dun-lay. I quoted him $4 per ton. He said, T would like for you to ship me a car just as soon as you can.’ I told him I would. I said, ‘There is no bank at Dunlay; you will have to arrange to pay for the coal somewhere.’ He said, T will arrange here;’ and went around in the office and spoke to some one, and came back and said he had arranged. I rung up long distance, got connection with Roach, Stansell & Crane’s office, and asked who it was answered the phone, and he said Mr. Silvers; and I said he was the party Mr. Bennett spoke to me about; and he said, ‘Yes, just send the bill here.’ X said, ‘You pay the freight.’ I named $4 per ton, and 80 cents will be the freight charges. He said to ‘notify the agent at Dun-lay to call on me when the coal arrives here, and I will pay the freight.’ I ordered the coal accordingly, sent the invoice to Roach, Stan-sell & Crane. Well, that was the first car, and it was pretty close to the 1st day of March, probably a day or two ahead; and in a few days (I suppose about the 10th or 12th of April) Mr. Bennett called me up and explained that he wanted to move his teams away; wanted about ten cars more of coal to carry him through until he finished that work there. I ordered from the International Coal Company at Eagle Pass, and they wrote me they would ship it as fast as they could get empty cars. I went out to Crane’s office about the 15th of February, I think, to try and sell him some feed. Mr. Crane told me there were a lot of them out there that I had better not try to do much business with, because he didn’t consider them responsible, because they were likely to move them away most any time; said there were only three men out there that he considered strictly reliable, in fact their financial standing was almost as strong as his own, and he would vouch for anything they bought from me, and, if they didn’t have the money to pay for it on delivery, they (Roach, Stansell & Crane) would pay for it, and charge 10 per cent, commission; that was the arrangement they had with all of them. And these three were Hale, Keys, and Bennett. Mr. Crane told me that Mr. Bennett was one of the subcontractors ; that anything he bought or ordered from me, if he was not ready to pay for it— didn’t have the cash in hand — Roach, Stansell & Crane would advance the money, because they had an arrangement to charge Bennett 10 per cent. The reason I let the coal go was because Crane said he would pay me half then and half next month, but was a little short of cash; expressed the opinion these irrigation engineers held him up; gave me the excuse that was the reason he was short; and gave me to understand that was the reason X hadn’t received payment for the first car. Mr. Crane told me, before I ever sold Bennett any coal, that, if Bennett was not in position to pay for it when ready to deliver, he (Crane) had arrangements with these three men to pay for it; that he was glad to do it, because he would get that 10 per cent. He would charge them 10 per cent, commission on all money advanced; but I have not been paid for that coal, except the freight charges. I have not received any money for any of the coal that went to Bennett’s camp. X got pay for the cars he ordered for the Syphon contract. He sent me a check for that; but I have not received pay for' the balance of it, which is fifteen hundred and sixty-nine dollars and some cents. Mr. Bennett ordered these ten cars the same way, over the telephone. All these orders were placed over the phone. I ordered them from the mines, commenced to get busy, took it up to find out why I had not been paid for the first two cars. No, I did not refuse to deliver these ten cars. I would have refused to, if Crane hadn’t said he would pay for them. I said I refused until Crane said he would pay for them. I would have refused to deliver the ten ears unless Roach, Stansell & Crane had guaranteed the promise to pay me, half then and half next month. Q. Did you require Roach, Stansell & Crane to guarantee the payment of Bennett’s bill? A, Nothing except the first indorsement they gave me; said they would pay for it and charge him 10 per cent, on all they advanced him. Q. Did Roach, Stansell & Crane guarantee to pay it? A. Crane said he would pay half then and half next month. That is about the only guaranty I had. This was, I suppose, about the first week in April. I refused to deliver any more until I had the personal promise of Mr. Crane. Q. Promised he would guarantee the payment? A. Said he would pay me for it half then and half the next month. The irrigation engineers ,had underestimated the work out there and were short changing them. That was his expression.”

S. P. Bennett testified in part:

“I was a subcontractor employed by Roach, Stansell & Crane to do work for them on the Medina Valley Irrigation contract, and I required coal for use in the operation of my machinery. Roach, Stansell & Crane was indebted to me at the time, and I was very short of cash, and I asked Mr. Crane, of the firm of Roach, Stansell & Crane, what arrangement could be made with reference to the purchase of coal, as it would be necessary to either pay for the coal or make arrangements for its payment on delivery. Mr. Crane stated to me that they would take care of the coal bills and charge to my account and would settle with the coal company, and that they would pay the freight on the coal as it arrived, which they did. I then stepped to the telephone and talked to Mr. Timpson, ordering a shipment of coal. I cannot remember the exact number of cars. It was my impression that the number was 15 cars. I stated to Mr. Timpson that Roach, Stansell & Crane would take care of the freight upon arrival of the coal, and would settle with him for the coal, or would see that the coal was paid for. Mr. Timpson said all right, or words to that effect, and commenced shipping the coal.”

In view of the foregoing testimony, and the finding of the jury thereon, we must conclude that Timpson refused to ship the coal until appellants agreed to pay for it. And it matters little what the particular words used were, as long as they show the intention of the parties and that they understood each other, the one to he bound for the payment of the coal and the other shipping on the faith of that promise. And appellee says he would not have shipped the coal had it not been for the fact that appellants said they would pay for it. There was every reason why appellants should want the coal delivered. They not only were receiving 10 per cent, on all these bills paid for subcontractors, but they did not want the work to stop when they were under contract to finish the work for the Medina Irrigation Company. It matters little that Bennett ordered the coal. It was sold to appellants as well as Bennett, and was an original undertaking on part of Roach, Stansell & Crane to buy the coal along with Bennett. The jury so found, and we so held.

The judgment is in all things affirmed.


author: PHILLIPS, J. BROWN, C. J.

text:
    COLE v. STATE ex rel. COBOLINI.
    (No. 8701.)
    (Supreme Court of Texas.
    Nov. 18, 1914.)
    1. Statutes (§ 158) — Implied Repeal.
    Repeals by implication are never favored, and when a later act is silent as to an older one, the presumption is that the continued operation of the older statute was intended, unless there is such a contradiction that the purpose to repeal is manifest, but such a contradiction must be so pronounced that both cannot stand.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. § 228; Dee. Dig. § 158.]
    2. Statutes (§ 159) — Construction — Implied Repeal.
    Where two statutes seem to be repugnant, a construction will be sought to harmonize them and leave both in concurrent operation, if it is possible fairly to reconcile them, especially where the older law is particular and expressed in negative terms, and the later statute is general.
    [Ed. Note. — Eor other cases, see Statutes, Cent. Dig. § 229; Dec. Dig. § 159.]
    3. Courts (§ 247) — Jurisdiction oe Supreme Court — Statutes—Implied Repeal.
    Rev. St. 1911, art. 1591, providing that in certain cases, among them contested election cases, the decision of the Court of Appeals shall be final, was not impliedly repealed by Laws 1913, e. 55 (Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 1521, 1522, 1526, 1543, 1544), which amended Rev. St. 1911, arts. 1521, 1522, 1526, 1543, 1544, providing for the general jurisdiction of the Supreme Court; since the- two statutes relate to different subjects, and the former is a particular statute expressed in negative terms, which will therefore be construed to be an exception to the general provisions of the later statute.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Quo warranto by the State of Texas, on the relation of Louis Cobolini, against A. B. Cole. A judgment of the district court ousting defendant from office was affirmed by the Court of Civil Appeals (163 S. W. 353), and tlie defendant applied to the Supreme Court for a writ of error.
    Motion to dismiss the application granted.
    G. R. Scott and Boone & Pope, all of Corpus Christi, and R. B. Creager, J. A. Graham, and Rentfro & Cole, all of Brownsville, for plaintiff in error.

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

   PHILLIPS, J.

This is a quo warranto proceeding in the name of the state, upon the relation of Louis Cobolini, to oust the plaintiff in error, Cole, from the office of mayor of the city of Brownsville, a case of a “contested election,” of which the jurisdiction of the Court of Civil Appeals is final under article 1591, R. S. 1911, if that article is now in force. State v. Thompson, 88 Tex. 228, 30 S. W. 1046. There has been no express repeal of the article, and it accordingly is now in effect, unless the act of the Thirty-Third Legislature (Laws 1913, p. 107 [Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 1521, 1522, 1526, 1543, 1544]) amending the statute defining the jurisdiction of the Supreme Court worked its repeal by necessary implication. Whether such was the result of the act is the question which arises upon the motion to dismiss the petition, filed by the defendant in error.

Article 1591 provides that:

“The judgments of the Courts of Civil Appeals shall be conclusive on the law and fact, nor shall a writ of error be allowed thereto from the Supreme Court in the following cases, to wit:
“1. Any civil case appealed from a county court or from a district court, when, under the Constitution, a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving -he revenue laws of the state or the validity of a statute.
“2. All cases of boundary.
“3. All cases of slander.
“4. All cases of divorce.
“5. All cases of contested elections of every character, other than for state officers, exce.pt where the validity of the statute is attacked by the decision.
“6. The judgments of said Courts of Civil Appeals shall be final in all appeals from interlocutory orders appointing receivers or trustees or such other interlocutory appeals as may be allowed by law.
“7. The judgment of said court shall be final in all other cases as to law and facts, except where appellate jurisdiction is given . to the Supreme Court and not made final in said Courts of Civil Appeals.”

’ The caption of the act of 1913 is in the following language:

“An act to amend articles 1521, 1522, 1543, 1544, and 1526 of the Revised Civil Statutes of 1911 defining the original and appellate jurisdiction of the Supreme Court, and regulating practice therein.”

The articles as amended which have any bearing upon the question read:

Article 1521: “The Supreme Court shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following eases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts:
“(1) Those in which the judges of the Courts of Civil Appeals may disagree, upon any question of law material to the decision.
“(2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the Supreme Court upon any such question of law.
“(3) Those involving the validity of statutes.
“(4) Those involving the revenue laws of the state.
“(5) Those in which the Railroad Commission is a party.
“(6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case,, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error.”

Article 1544:

“If, upon examination of the petition for writ of error, the Supreme Court shall find the case to he one of which it may take jurisdiction, and that there is such a difference of opinion among the judges of the court from which the cause shall come, or such a difference between the decision brought in question and a decision of another court, as is specified in article 1521, or that the question involving the validity of a statute was erroneously decided, or that, in- a case involving the revenue laws of a state, or to which the Railroad Commission is a party, any question of law material to its correct decision was erroneously decided, or that such an error is shown as is contemplated by subdivision 6 of article 1521, the court shall grant the writ for the purpose of deciding the question as to which the difference exists, or of correcting the erroneous decision and rendering the judgment in which a correct decision thereof shall result.”

Repeals by Implication are never favored. Laws are enacted with a view to their permanence, and it is to be supposed that a purpose on the part of the lawmaking body to abrogate them will be given unequivocal expression. Knowledge of an existing law relating to the same subject is likewise attributed to the Legislature in the enactment of a subsequent statute; and when the later act is silent as to the older law, the presumption is that its continued operation was intended, unless they present a contradiction so positive that the purpose to repeal is manifest. To avoid a state of conflict an implied repeal results where the two acts are in such opposition. But the antagonism must be absolute — so pronounced that both cannot stand.

Though they may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total repugnance cannot be said to exist, and therefore an implied repeal does not result, since in such case both may stand and perform a distinct office. Especially will this construction be adopted where the older law is particular and expressed in negative terms, and the later statute is general in its nature. In such instances that to which the older law distinctly applied its negative provisions will be regarded as excepted from the operation of the more general statute. These are but the familiar rules of constructiofi to be applied where the implied repeal of a law is involved. They are so well understood as not to require the citation of authority, but reference may be made to the following: Lewis’ Sutherland, Stat. Cons. vol. 1, § 247; Endlich, Interp. of Stat. §§ 210, 216, pp. 288, 289; Hanrick v. Hanrick, 54 Tex. 101; Brown v. Chancellor, 61 Tex. 437; Herndon v. Reed, 82 Tex. 647, 18 S. W. 665; Wilmot v. Mudge, 103 U. S. 217, 26 L. Ed. 536; Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614.

It may be well doubted whether any question of an implied repeal of article 1591 really arises upon the act of 1913. One statute is not repugnant to another unless they relate to the same subject. It is not sufficient that there be a discrepancy between different parts of a system of legislation upon the same general subject; there must be a conflict between different statutes upon the same specific subject. 1 Suth. Stat. Cons. § 247. The sub'ject-matter of the act of 1913 is the original and appellate jurisdiction of the Supreme Court and the regulation of its practice. It does not propose to deal with or affect the jurisdiction of the Courts of Civil Appeals. It contains no reference to that subject or any existing provision o£ law upon it. It distinctly takes no note of article 1591, in the caption or elsewhere. As not without some bearing on the question of its intended scope and effect upon any law relating to the jurisdiction of those courts, it may be remarked that it is even without a general repealing clause. The subject-matter of article 1591 is the final jurisdiction of the Courts of Civil Appeals, recognized in our judiciary articles as a different subject from that of the appellate jurisdiction of the Supreme Court. In those articles, as they stood at the time of the adoption of this act, the definition of the appellate jurisdiction of the Supreme Court did not include' that of the final jurisdiction of the Courts of Civil Appeals, nor was the former declared in the terms of the latter. They constitute distinct subjects in that legislation, and this act must be regarded as having been proposed and passed under that recognition. An act limited in its scope to the revision of the jurisdiction of one court evidences no general intention to revise, as well, important features of the jurisdiction of another independent court, or that its provisions shall operate as a new system for the government of both. It will be presumed, on the contrary, that the impairment of the other jurisdiction was no part of its purpose. A seeming conflict between two statutes dealing, as do these, with different specific subjects is a very narrow basis upon which to construct an implied repeal.

But, leaving this phase of the question, and assuming that the statutes relate to the same subject, an absolute and total conflict between them is not disclosed. Taken in pari materia, as they may be if regarded as relating to the same subject, they are to be construed as one act; but, whether construed as one act or as distinct acts, it is possible to fairly reconcile them and give each its in-ténded operation. Whatever inconsistency exists between them arises from the jurisdiction conferred upon the Supreme Court by section 6 of amended article 1521, wherein it is given authority to review questions of law arising in civil causes in which, in its opinion, “the Court of Civil Appeals has * * * erroneously declared the substantive law of the case.” This section presents an apparent conflict with article 1591, but not such a total repugnance that the latter article cannot stand, if the section be given effect, or as to render the section inoperative if the article be held as still in force. It may have its appropriate sphere of operation, though article 1591 be allowed full effect.

It is in certain “cases” that the jurisdiction of the Courts of Civil Appeals is made final under article 1591, and clearly because of the nature of such cases. It is a particular statute, and is expressed in negative terms, ,the language being: “Nor shall a writ of error be allowed thereto from the Supreme Court.” This is a very clear and emphatic declaration. It is a definite exemption frbm the appellate jurisdiction of the Supreme Court of all cases of the classes named, as applicable to any subsequent adjustment of that jurisdiction which did not distinctly remove it, as to the law by. which such jurisdiction was then defined. Having regard for its character as an exemption provision, it would seem to necessarily provide an exception to a revision of that jurisdiction which is silent as to it and is expressed in such general terms as to include, if taken literally, all classes of cases of which the Courts of Civil Appeals have appellate jurisdiction. In making the jurisdiction of the Courts of Civil Appeals final as to cases of the classes named, article 1591 presents no interference with the exercise of the jurisdiction of the Supreme Court, as conferred by -section 6 of the amended article 1521, over all other cases to which the appellate jurisdiction of the Courts of Civil Appeals extends. The terms of that section are not such as to positively include any of the classes of cases named in article 1591, and are therefore not inconsistent with their exclusion. No violence is done its language by restraining its operation to cases not by law declared exempt from the jurisdiction of the Supreme Court. With one statute negative in character, and relating to particular classes of cases over which a certain jurisdiction is directly denied, and another' statute affirmative, and defining that jurisdiction in general terms, no doubt can be indulged as to the construction to be applied. In such a case the question of an implied repeal of the particular statute is not to be seriously considered. It will be construed as constituting an exception to the general statute, under the settled rule, though the language of the latter is, literally, broad enough to include that to which its negative provisions apply. In this manner both statutes will be given effect, and each allowed its appropriate field of operation. We accordingly hold that the act of 1913 did not by implication repeal article 1591, and that article is now in force,

It should be said that during the last term, in applying the act of 1913, we acted under the view that its effect was to confer, upon this court jurisdiction over questions of substantive law in eases made final in the Courts of Civil Appeals by the terms of this article; and in a few instances, doubtless, writs of error have been granted in such cases, which under this ruling will be dismissed. This is a consideration of no. weight, however, as opposed to a correct decision. A full examination of the question had not then been undertaken. It has since received a careful consideration, with the conclusion here announced as the result.

The motion to dismiss is granted.

HAWKINS, J., absent, and will later announce his position.

BROWN, C. J.

Upon a full and thorough examination of the questions involved in the foregoing opinion, I fully concur with the reasoning and the conclusions expressed therein.


text:
    NATIONAL LIFE ASS’N v. PARSONS.

    (No. 6696.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 27, 1914.
    Rehearing Denied Nov. 19, 1914.)
    1. Appeal and Error (§ 742) — Assignments op Error — Propositions.
    In an action on life policies, defendant assigned that the court erred in rendering judgment against it for 12 per cent, damages or penalty for failing to pay the policies and $600 as a reasonable attorney’s fee, in that such sums did not- accrue until after legal proof of decedent’s death, which was not as a matter of law, or fact established in the case, by reason of the uncertainty of such death. Under this, defendant asserted as propositions that where there was no proof of death, or where the proof was insufficient to reasonably establish death of assured, no legal demand for payment could authorize suit on failure to pay the policies, penalty, or reasonable attorney’s fee, and that where the proofs and demand for payment, together with the evidence on the final trial, made it to reasonably appear that the failure to pay the policies was not willful, the statute assessing the penalty and attorney’s fee did not apply as a matter of law, though judgment was obtained on final trial. Seli, that the assignment did not relate to the same questions of law raised by such propositions, and the propositions following those stated being germane to the assignment only, the propositions specified would be regarded as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Insurance (§ 602) — Lise Insurance Policies — Failure to Pat — Penalty—Prooe of Death.
    In determining whether a life insurance company was liable for the statutory penalty for failing to make payment within a specified time after the filing of proofs of death, only such proofs as were submitted to the insurer could be considered.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    3. Insurance (§ 543) — Death of Insured-Proofs.
    Affidavits that assured, who v?as employed as a warehouseman in a railroad warehouse, went into the building a few minutes before it was destroyed by explosion and fire, and that thereafter pieces of cloth identified as like the I clothing he wore were found, and pieces of bone also discovered in the débris and shown by scientific examination to be parts of a human skull, were sufficient to show assured’s death, within the provision of the policies that proof of death or disability shall be furnished to insurer, and shall comprise satisfactory statements and evidence- establishing a claim under such policies.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1347; Dec. Dig. § 543.]
    4. Insurance (§ 602) — Life Policy — Loss-Failure to Pay — Penalty — Attorney’s Fee.
    Rev. St. 1911, art. 4746, provides that where a loss occurs, and a life insurance company liable therefor fails to pay the same after 30 days after demand therefor, such company shall be liable to pay to the policy holder, in addition to the amount of the loss, 12 per cent, damages, together with a reasonable attorney’s fee for the prosecution and' collection of such loss. Held, that an insurance company is liable for the penalty and attorney’s fee so provided, when it fails to pay the loss on proper proof within the time specified, though such failure is not willful, but in good faith, pursuant to the insurer’s belief that, notwithstanding the proof and demand, the assured was not dead, or that it had some other good defense to the suit.
    [Ed. Note. — For other cases,- see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    5. Insurance (§ 602) — Proof of Death-Failure to Pay — Penalties—Statutes— Application — Assessment Companies.
    Laws 1909, c. 108, § 65, containing a provision imposing a penalty on insurance companies for failure to pay losses within 30 days after proofs and demand, declared that none of the provisions “of this act” should apply to assessment companies. The statute, when incorporated into the Revised Statutes of 1911, was divided into chapters under title 71, and article 4957 provided that none of the provisions “of this act” (chapter 15) should apply to assessment insurance companies, but the provision imposing liability on insurance companies for penalties and attorney’s fees was placed in chapter 2. Held, that such alteration constituted an amendment of the law, and rendered assessment companies liable to the provision for penalties and attorney’s fees.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by Lena Parsons against the National Life Association. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Mantooth & Collins, of Lufkin, Y. E. Mid-dlebrook and S. M. Adams, both of Nacog-doches, and John T. Garrison, of Houston, for appellant. Blount & Strong, of Nacog-doches, and Kahn, Williams & King, of Houston, for appellee.

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

       Application for writ of error pending in Supreme Court.

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

   McMEANS, J.

Lena Parsons brought this suit against the National Life Association to recover $6,000, the sum of two Life Association policies issued by the defendant to George Frank Parsons, the assured, payable at his death to Lena Parsons, his stepmother, who was named in the policies as the beneficiary, and for 12 per cent, on said amount as penalty for nonpayment of the policies after the presentation of proofs of death and demand for payment, and for 10 per cent, as reasonable attorney’s fees, with 6 per cent, per annum interest from May 1, 1913. Defendant, among other defenses not necessary to be here stated, pleaded that the assured, George Frank Parsons, was not dead, but was still living, and denied that the defendant was such an insurance company as that a penalty for failure to pay upon receipt of proofs of death and demand for payment could be exacted under the statute. The case was tried before a jury and resulted in a verdict in favor of plaintiff in response to special issues, upon which verdict a judgment was rendered in her favor for the principal of the policies sued on, for 12 per cent, thereon as penalty, 10 per cent, as reasonable attorney’s fees, and interest at the rate of 6 per cent, per annum, aggregating $7,375. From this judgment •the defendant, after its motion for a new trial had been overruled, has • appealed.

Appellant’s first assignment of error complains of the refusal of the court to sustain its general demurrer to plaintiff’s petition, and the second assignment is addressed to the action of the court in not sustaining its third special exception to the petition. The fifth .assignment is as follows:

“The court erred in rendering judgment in any event against the defendant for $720, 12 per cent, damages or penalty for failing to pay the sum of the policies, and $600 as reasonable attorney’s foes, said sums never accruing until after legal proof of death of the assured, which was not as a matter of law or fact established in this case, by reason of the uncertainty of the death of the assured, George Frank Parsons.”

Under the fifth assignment appellant asserts these propositions:

“(1) Where there is no proof of death, or where the proof is insufficient to reasonably establish the death of the assured, no legal demand for payment can be effective to authorize suit on failure to pay the policy, penalty, or reasonable attorney’s fees.” (2) Where the proofs of death and demand of payment, together with the evidence on final trial, made it to reasonably appear that the failure to pay the policies is not willful, the statute (article 4746) assessing 12 per cent, penalty and reasonable attorney’s fees does not apply as a matter of law, although judgment obtained on final trial.

The fifth assignment does not relate to the same questions 0f law raised by the first and second, and the propositions following the fifth are germane to it only; and therefore the consideration of the first and second must be regarded as waived, and we will give consideration only to the questions raised by the fifth.

The proofs of the death of George Frank Parsons, before demand for payment was made, consisted of the following:

Mrs. Lena Parsons, the beneficiary, presented to the defendant her affidavit, in which, among other things, she stated:

“The said George F. Parsons, from the date of said policies to the time of his death on I March 2, A. D. 1913, was in good health and was engaged at said time by the Houston, East & West Texas Railroad Company as warehouse and cheek clerk in the town of Uufkin, Angelina county, where he had been so engaged for about three years prior to his said death. That no predisposing cause to his death existed, but he was suddenly killed from the effects of the explosion of dynamite and gasoline in the warehouse and depot of the Houston, East & West Texas Railroad Company, at about 10 o’clock p. m. of March 2, A. D. 1913. That said George E. Parsons was in said depot and warehouse at the time of said explosion, which completely wrecked the building and practically destroyed his entire person. That immediately after said explosion the building in its wrecked condition was set on fire, and the wrecked portions thereof, together with a number of box cars adjacent thereto, were completely destroyed by fire. That only portions of the skull, hair, and clothing of the said George F. Parsons were recovered, a copy of the scientific examination of which, showing the results of such examination, is hereto attached and made a part hereof for the purpose of showing the death of George F. Parsons, and in addition thereto a copy of an affidavit made by Mack A. Holland, together with a copy of an affidavit made by Jeff Hudson and Albert Martin, showing that said George F. Parsons was in said building where said explosion occurred at the time thereof, having entered the same just a few minutes prior to said explosion. That except the particles of skull, hair, and clothing mentioned hereinabove, no portions of the body of the said George F. Parsons have been recovered, and that said George F. Parsons, when last seen, was entering said building from two to five minutes prior to said explosion.”

Also- the affidavit of Mack Albert Holland, which is as follows:

“I was the night operator at the Houston, East & West Texas Railroad depot on the night of March 2d, when the explosion occurred which wrecked the depot. The explosion occurred at 10:30 o’clock p. m. on said day. I was well acquainted with Frank Parsons, who lost his life in the explosion above mentioned. I have known him since November 1, 1912. He was warehouseman for the Houston, East & West Texas Railroad Company at the time. Mr. Parsons came into ticket and telegraph office at about 9:55 p. m. on the evening of said day. I glanced around and saw who it was, and he went around to where he generally works, and stopped about one-half of a minute, and came back and asked me to ‘let’s go and get a cup of coffee,’ which I told him that I had just been ov.er and had a piece of pie and a glass of milk, and he stated, ‘That don’t make any difference; come and have one with me.’ I told him I never refused anything, and would go with him and take one, and we both started to the W. O. W. restaurant, and got about halfway, when Frank stated that he had some unfinished business in the warehouse that had to be attended to right away, and for me to go over and order him a cup of coffee and a piece of pie, after which I never saw him any more, which was about four minutes before the explosion occurred. After he made the' above statement, he turned and went back to the warehouse. I saw him step into the baggage room, and I couldn’t see him any further. We had gotten on the railroad at the crossing when he turned back, and I had gotten on the' concrete walk leading from the railroad to the restaurant when he entered the baggage room. I walked into the restaurant and gave the order, and had been furnished two cups of coffee and two pieces of pie, and was fixing to drink my cup, when the explosion occurred. He had a desk in the freight room near the northeast corner. I have a distinct recollection of the kind of clothing he had on that night, which was a gray suit. I have been shown the pieces of clothing said to have been found, at the place where the ground was tom up inside the freight house, and I am able to say that the cloth in these pieces is to the best of my knowledge the same goods he had on that night at the time I saw him last. I went on duty at 6 o’clock that night, and .saw Mr. Parsons at about 7:30 in the office, and spoke to him. He left soon; I suppose went to church; and he came back at the time above mentioned.”

Also the affidavits of Jeff Hudson and Albert Martin, as follows:

“Before me, the undersigned authority, on this day personally appeared Jeff Hudson and Albert Martin, each of whom, after being by me duly sworn, upon his oath deposes and says: We went to the depot of the Houston, East & West Texas Railroad on the night of March 2, 1913, at 9:45 p. m., and went into the waiting room, and were in the waiting room when the explosion occurred. Frank Kee was also in the waiting room with us at the time, and there were two other men in the room with us who we don’t know. (Witness Hudson alone says, in addition to the above:) That just before the explosion, about one minute and not over one and a half minutes, he heard some one walking in the direction of the explosion, he thinks it was in the ticket office, but can’t be sure, but is sure that it was somewhere in the depot in the direction of the explosion.”

Also a certified copy of the order of the county judge of Angelina county reciting that “Frank Parsons .departed this life about March 2, 1913,” and appointing Mrs. Lena Parsons temporary administratrix of his estate. Also report by Dr. James J. Terrell, professor of pathology, Medical Department of the University of Texas, at Galveston, upon pieces of bones submitted to him by Dr. R. B. Bledsoe, of Lufkin, in which he says:

“First. From the general appearance of the bones to which my examination was confined, they are undoubtedly fragments of skull bones, and are fresh or green bones. Second. The pre-cipitin test, with properly immunized rabbit serum, demonstrated absolutely the presence of human blood serum on the bones numbered 1, 2, 3, and 4. Third. On bones numbered 1, 2, 3, and 4 are short bits of hair. Three of these were removed and examined microscopically.”

His conclusion from this examination is stated thus:

“Every feature shown in these hairs is consistent with human hair, although the scant amount present renders an absolute opinion difficult at this time.”

No question is made as to the sufficiency of demand for payment after the foregoing proofs of death were made to defendant, or as to the time the proofs were presented and demand made.

In deciding the question raised by the fifth assignment, we think that only the proofs of death submitted to the defendant can be properly looked to in determining whether the failure of defendant to pay the amount of the policy, or rather its refusal to pay after demand,' rendered it liable for the penalty of 12 per cent, and reasonable attorney’s fees for the prosecution and collection thereof. The assignment under discussion does not raise the question of the sufficiency of the findings that the insured was killed in the explosion at the depot in Luf-kin, nor is that question raised by any other' assignment presented in appellant’s brief.

Each policy contained this provision:

“Proof of death or disability of the insured, shall be furnished to the association at its home office, which proofs shall comprise satisfactory statements and evidence establishing any claim under this policy, and such statements must comply with the association’s forms in use at the time of death or disability of the insured.”

We think the proofs were in compliance with the requirements of the terms of the policies, and prima facie show the death of the insured, and therefore a finding of their sufficiency by the trial court is one that the appellate court is not at liberty to disturb. We cannot agree to the contention, made by appellant in its second proposition under the fifth assignment, to the effect that if the failure to pay the policies is not willful the statute providing for the assessment of a penalty 'and attorney’s fees does not apply as a matter of law, although judgment may be obtained on final trial. Article 4746, Revised Statutes 1911, contains this language:

“In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay to the holders of such policy, in addition to the amount of the loss, twelve per cent, damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss.”

Under this article an insurance company becomes liable for the penalty and attorney’s fees when proper proof of death has been made in conformity with the requirements of its policies, where, upon a trial, the right of the policy holder to recover the loss is established, and proper demand for payment has been made, even though the company may in good faith have believed that, notwithstanding the proof and demand, the insured was not dead, or that it had some other good defense to the suit. The statute does not make the liability of the company depend upon the willful refusal of the company to pay the loss, or its good faith in contesting its liability.

This ruling is not in conflict with the ruling of the Court of Civil Appeals of the Fourth District in Southwestern Insurance Co. v. Woods National Bank, 107 S. W. 114, cited by appellant, as we understand that decision. In that case there was no denial of liability, but the evidence showed that there were two claimants, one the beneficiary named in the policy, which was the estate of the assured, and the other a bank claiming to be assignee thereof from the insured, and the company merely withheld payment until it could be established in some proper way which was entitled to the payment. In that case the court quotes from its decision in Stevens v. Insurance Co., 26 Tex. Civ. App. 156, 62 S. W. 824, as follows:

“We are of opinion that in a case where the beneficiary is uncertain by reason of conflicting claims, and the company has the right to a bill of interpleader, as in this case, and it proceeds promptly and properly in this regard, as has been determined here, it is not liable for penalties.”

And it continues:

“Of course it must appear that the- refusal to pay was made in good faith for the purpose of discovering the true and lawful owner of the fund, and not for the purpose of gaining time, or for any other ulterior object.”

We have no quarrel with that decision, but, on the contrary, approve it; but that case is not authority for the contention here made that an insurance company which fails to pay a loss after proper proofs have been submitted and within 30 days after due demand is not liable for the penalty and attorneys’ fees upon the loss being established in court, when the refusal to pay is based solely upon the contention of nonliability made in good faith. The assignment and the proposition thereunder are overruled.

Appellant contends under its sixth assignment, which sufficiently raises the point, that Revised Statutes, article 4746, authorizing the recovery of a penalty and attorney’s fees in a suit on a contract of insurance for defendant’s- failure to pay the claim within a specified time, is not applicable to assessment companies, to which class appellant belongs, and the judgment allowing a recovery of a penalty and attorney’s fees against defendant was erroneous. On this issue we find as a fact that the appellant was and is an “assessment company,” as that term is used in section 65, General Laws 1909, page 214, which reads as follows:

“None of the terms or provisions of this act shall apply to nor in any wise affect fraternal beneficiary associations as defined by the laws of this state, nor apply to companies carrying on the business of life or casualty insurance on the assessment or annual premium plan, under the provisions of articles 3090; 3091 and 3092, Revised Civil Statutes of the State of Texas” (1895).

This act seems to have been an entire revision and re-enactment of all laws relating to the subject of insurance, and superseded all laws theretofore existing in reference thereto. Under the provisions of section 65, above copied, we think it clear, had the law not been changed at the time of issuance of the policies in question, the appellant, under the provisions of article 3092, Revised Statutes 1895, would have been excepted from those classes of insurance companies from which a penalty and attorney’s fees might have been recovered in case of failure to make payment of a loss within 30 days after a demand therefor had been made. In making the revision of the Statutes of 1911 the revisors, under title 71, divided the act of 1909 into chapters, and in chapter 15 we find the following:

“Art. 4957. None of the terms or provisions of this chapter shall apply to, nor in any wise affect, fraternal beneficiary associations as defined by the laws of this State, nor apply to companies carrying on business of life or casualty insurance on the assessment or annual premium plan, under the provision of this title.”

This chapter is one containing general provisions relating to the subject of insurance, and does not contain the provision imposing penalties and attorney’s fees upon delinquent insurance companies. Thus we see that the act of 1909 made the exception apply to the provisions of that act, and that article 4967, as arranged by the codifiers, makes the exception apply to the terms and provisions of chapter 15, thereby removing the exemption of such companies as appellant from liability for penalties and attorney’s fees, which provision is in chapter 2 of that title. Association v. Hagelstein, 156 S. W. 355. It may be that it was only a mistake on the part of the codifiers in using the word “chapter,” instead of “title”; but thus is the law written, and it is our duty to construe it as we find it, not to make it. The assignment is overruled.

The seventh assignment of error is as follows:

“The court erred in its charge to the jury, wherein he charged: ‘Did the explosion at Luf-kin in the depot cause the death of George Frank Parsons?’ Said charge is on the weight of the evidence, in that it assumed that George Frank Parsons was dead, and, his death being assumed, was such death caused by the explosion at Lufkin at the depot?”

We are of the opinion that the charge is not susceptible to the complaint made of it. It was the contention of the plaintiff that the insured was killed by the explosion, while the defendant strenuously maintained that he was not. No contention was made that the insured had met his death in any other manner. If Parsons was dead, the contingency had arisen which made defendant liable on its policies; but the petition charged that he was killed by the explosion. We think that the charge could not in any wise have misled the jury.

There being no reversible errors in the record, the judgment f of the court below is affirmed.

Affirmed.


text:
    PARKER v. BUSBY et al.
    (No. 6783.)
    (Court of Civil Appeals of Texas. Galveston.
    Oct. 28, 1914.)
    1. Evidence (§ 271) — Affidavits — Dis-CHAKGE.
    Where petitioners brought mandamus to compel a tax collector to issue poll tax receipts to them, and date them January 30, 1911, it appeared that petitioners had executed foreign powers of attorney appointing an agent to pay their poll tax and receive and transmit the receipts, and purporting to show that they were qualified voters, such instruments were not admissible in evidence to show that the persons executing them were in fact qualified voters and authorized to receive such receipts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    2. Taxation (§ 528%) — Poll Taxes — Receipts— Issuance.
    Rev. St. 1911, art. 2942, provides that poll taxes shall be paid at any time between October 1st and February 1st, following, and the person when he pays it shall be entitled to a poll tax receipt, though his other taxes are unpaid. Article 2944 declares that, if the taxpayer does not reside in a city of 10,000 inhabitants or more, his poll tax may be paid by some one duly authorized by him in writing to pay the same, and to furnish the collector with information necessary to fill out the blanks in the receipt. Held that, where a poll is tendered within the time specified, the collector has no discretion but to receive it and issue a receipt therefor, though he is in doubt as to the right of the payer to vote; and, when the tax is paid within the time specified, it is the duty of the collector to issue a receipt as of the date of payment, though on a subsequent date, notwithstanding Pen. Code 1911, art. 224, providing that the collector shall not issue a poll tax receipt after February 1st in any year “bearing a date” prior to February 1st; the only date to be shown in the form of the receipt prescribed by article 2949 being the date on which the tax is received.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 989; Dec. Dig. § 528%.]
    3. Mandamus (§ 118) — Poll Taxes — Payment — Receipts—Compelling Issuance.
    Where poll taxes are tendered to the collector before the time for payment has expired, performance of the collector’s duty to issue a tax receipt may be compelled by mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 250; Dec. Dig. § 118.]
    4. Taxation (§ 528%) — “Poll Tax” — Payment — Receipts — Issuance — Statutes —CONSTRUCTION.
    Rev. St. 1911, art. 7567, provides that when a taxpayer applies to ascertain the amount of his taxes, and the collector finds that his name or his property does not appear on the tax rolls, he shall assess such taxpayer then and there and collect the taxes and enter the same on a supplemental tax roll to be made by him; that the collector shall receive, for assessing the state and county taxes, four cents for each $100 of property assessed, and, for assessing the poll taxes, five cents for each poll. Held, that the assessment required by such article referred to the assessment of property only, and not to the assessment of “poll taxes” which are taxes assessed on the person — a capitation tax — which by article 7354 is levied on all male persons between 21 and 60 years, with certain exceptions; but, even if the assessment of a poll tax was necessary to sustain its collection, such assessment was not required to enable the taxpayer to compel the collector to accept the amount levied by law on him as a poll tax and to issue a receipt therefor.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 989; Dee. Dig. § 528%.

    For other definitions, see Words and Phrases, First and Second Series, Poll Tax.]
    Appeal from District Court, Hardin County ; L. B. Hightower, Judge.
    Mandamus by W. M. Busby and others against W. S. Parker. Judgment in favor of plaintiffs, and defendant appeals.
    Affirmed in part and reversed and remanded in part.

      Singleton & Nall, of Kountze, for appellant. Geo. G. Clough, of Galveston, Coe & Coe, of Kountze, and W. X>. Gordon, of Beaumont, for appellees.

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

   McMEANS, J.

W. M. Busby, A. Wagner, and more than 200 other persons brought this suit in the district court of Hardin county on the 13th day of March, 1914, against W. S. Parker, tax collector of said county, seeking to compel him, by mandamus, to issue to each of the plaintiffs a poll tax receipt and to date the same on the 30th day of January, 1914. The case was tried before the court on April 7, 1914, and upon the conclusion of the evidence a judgment was rendered for plaintiffs, awarding a peremptory mandamus commanding the defendant to forthwith issue to each of the plaintiffs a poll tax receipt in due form of law as of date January 31, 1914. From this judgment the defendant has appealed.

From the record we make the following findings of fact:

The plaintiffs did not reside in a city of 10,000 inhabitants or over, and, if they were qualified voters of Hardin county, were entitled to pay their poll taxes to the tax collector through an agent duly authorized in writing, as provided by article 2944, Revised Statutes 1911. On dates running from the 27th to the 31st day of January, 1914, each of the plaintiffs gave to his agent written authority to pay his poll tax for him, at the same time giving to the agent $1.75 with which to pay the tax; the written authority given by W. Smith to W. J. Hart being in the following language:

“The State of Texas, County of Hardin.
“To the Tax Collector of Hardin County: You are hereby authorized to receive payment of my poll tax for the year 1913 from W. J. Hart, and to transmit the receipt to me as provided by law. I solemnly swear that I am 53 years old; that I reside in voting precinct No. 5 of Hardin county; my race is colored; I have resided in Texas 53 years, in Hardin county 30 years; my occupation is laborer; that my post office address is Dearborn. And the said W. J. Hart is hereby authorized to pay said tax for me, and to furnish to you the information necessary to fill out the blanks in the poll tax receipt.”

This was signed by W. Smith and duly sworn to by him. All the other plaintiffs gave written authority for the payment of their poll taxes by an agent in similar form to that above set out except four, particular mention of whom will be hereinafter made. On January 28, 1914, Jno. Mclnnis holding written authority from 78 of the plaintiffs and R. L. Martin holding such authority from 21 more, and F. M. Smith holding such authority from 11, appeared before the tax collector at his office in the town of Kountze and presented to him the said written authority of said plaintiffs and tendered and delivered to him the sum of $1.75 in payment of the poll tax of each of the persons severally presented by them, whereupon the tax collector, although receiving the money thus tendered, failed to issue poll tax receipts to the plaintiffs so represented, but instead thereof gave to said agents a certificate in the following language:

“I, W. S. Parker, tax collector of I-Iardin county, Texas, acknowledge that the above parties made written application for poll tax receipts through agents duly authorized, accompanied by renditions sworn to before J. E. Crawford and N. O. Cravens, notary publics Hardin county, and also tender of $1.75 for each, which I hold on deposit subject to legal investigation.”

J. J. Ogg, representing 47 of the other, plaintiffs and acting under like written authority from them, in like manner on the same day made tender of the amount due by each for poll tax, and delivered to the tax collector such written authority, together with the sum of $1.75 for each, and was given a receipt in the following language:

“Received of J. J. Ogg the sum of $71.75 to cover poll tax receipts applied for No. of men in lists.”

All the other plaintiffs, except R. H. Parr, J. N. Hendricks, J. P. Denny, and C. M. Baker, made application through agents' duly authorized in writing to the tax collector at his office for their poll tax receipts, and such agents delivered to the tax collector their written authority and made tender of $1.75 for each of the persons represented by them, and the collector thereupon issued certificates to the agents reciting such facts.

The four plaintiffs named above made applications to the collector for their poll tax receipts by mail, each accompanying his application with the amount of money necessary to pay the same.

No proof was made on the trial that the plaintiffs were qualified voters of Hardin county, at the time they severally offered to pay their poll taxes other than by the statement contained in the written authority given by each to his agent to pay the taxes, and except as to the plaintiff Wagner, and as to him it was agreed that at said time he was a qualified voter- of said county and had resided therein for several years.

Appellant by his fourth assignment of error complains of the action of the court in admitting in evidence the various instruments executed by plaintiffs authorizing their agents to pay poll taxes for them, and by his first proposition thereunder asserts that:

“It being a material issue in the ease whether or not appellees were bona fide residents of Hardin county on January 31, 1913, the so-called powers of attorney being ex parte, and made long before the filing of this suit, were not admissible over the objection of appellant to prove that issue.”

We are of the opinion that the assignment must be sustained. It was a material inquiry on the trial whether the plaintiffs who sought to compel the tax collector to issue poll tax receipts to them were qualified voters of the county at the time they offered to pay their poll taxes, and the burden of establishing that fact rested upon the plaintiffs. It is elementary that a mere sworn statement made out of court is not admissible to prove at the trial the facts stated in it. This rule is largely based upon the fact that at the time such statement was made the opposite party had no opportunity for cross-examination. Wigmore on Evidence, §§ 1384, 1708. The action of the court in admitting the affidavits as evidence of the citizenship of plaintiffs and their qualification as voters of Hardin county, over the objection of appellant above stated, constitutes reversible error as to all of the plaintiffs except A. Wagner, who it was admitted on the trial was a citizen and qualified voter of Hardin county at the time he offered to pay his poll tax.

Appellant by his first assignment of error complains of the action of the court in overruling his general demurrer to plaintiffs’ petition, and by his second assignment complains of the refusal of the court to sustain his second special exception. Under these assignments, which sufficiently raise the points presented in his propositions, he urges:

“(1) That mandamus does not lie to force an officer to do an act which is not his clear duty to do independent of the writ, or to do an act prohibited by law.
“(2) The law having fixed a time in which poll tax receipts can be lawfully issued, and not having provided a remedy in cases where parties have denied such receipts applied for at the proper time, mandamus does not lie to compel the issuance of the same after the expiration of the time fixed by law.
“(3) The law requires that all poll tax receipts for the year 1013 be issued prior to February 1, 1914, and makes it unlawful to issue such receipts after that time, and the courts cannot command appellant to disobey the law.”

It will be seen that it is appellant’s contention that even though a poll tax receipt is demanded of the tax collector by a qualified voter of a county at a proper time, and the amount to pay same is tendered or delivered to the tax collector at the time of the demand, and the collector fails or refuses to issue the receipt therefor before the 1st day of February, his power to thereafter issue receipts is taken from him by law, and he cannot be compelled by the courts to thereafter issue the same.

Article 2942, Revised Statutes 1911, provides that the poll tax shall be paid at any time between the 1st day of October and the 1st day of E'ebruary following, and the person, when he pays it, shall be entitled to his poll tax receipt, even if his other taxes are unpaid.

Article 2944 provides that:

“If the taxpayer does not reside in a city of ten thousand inhabitants or more, his poll tax must either be paid by him in person or by some one duly authorized by him in writing to pay the same, and to furnish the collector the information necessary to fill out the blanks in the poll tax receipt.”

Yernon’s Rayles’ Ann. Civ. St. 1914, art. 2945a, provides:

“When in cases permitted by this title, the tax is paid by an agent, the tax receipt shall not be delivered to such agent, but shall be sent by mail to the taxpayer or kept and delivered to him in person.”

From these provisions it will be seen that the taxpayer, when he tenders through his agent duly authorized in writing to the tax collector an amount sufficient to pay the tax, is then entitled to a receipt, and has done all that the law requires of him in order to obtain it. The collector does not seem to have authority to exercise any discretion in the matter, but is bound to receive the amount tendered and issue a receipt therefor, although if he is in doubt as to the right of the payer to vote in the county it is his duty to make due examination of the payer or his agent in that regard, and to this end has the authority to exact of the payer or the agent an affidavit showing the citizenship, etc., in the county where the tax is paid; this being done, he must issue the receipt for the tax, and report the matter to the grand jury. Article 4959.

Article 2949 provides that the poll tax receipt shall show, and article 2950 prescribes the form of the receipt in substantially the following language:

“State of Texas, County of -.
“Received of-on the-day of-, A. D. 19 — , the sum of-dollars, in payment of poll tax for the year A. D. 19 — . The said taxpayer being duly sworn by me, says that he is — ” (Here follows the necessary information to show that he is of lawful age and the length of his residence in the county and state, etc.) and concludes thus: To all of which I certify,
“[Signed] -,
“Tax Collector - County, Texas.”

From the above it will be seen that the date of the issuance of the receipt is not required to be stated in the receipt, but only tlie date upon which the amount of tax was paid to him; therefore, where the money is paid or tender is made before the 1st day of February, it would not seem unlawful for the collector, and it would appear to be his duty in such case, to issue the receipt even at a day later, stating truly therein the date upon which the money was paid or tendered to him. It follows, then, that if the plaintiffs paid or tendered payment of their taxes before February 1st it was the collector’s duty to issue receipts therefor, and this duty continued after that date, and, this being true, it was within the power of the court to compel him by mandamus to perform this duty. We do not think that article 224 of the Penal Code (1911), properly construed, compels a contrary conclusion to that above stated. That article makes it unlawful for a tax collector to issue a poll tax receipt after the 1st day of February in any year, bearing a date prior to the 1st day of February. The only date to be shown in the form of receipts prescribed by law is the date upon which the poll taxes were receiv-cd, as has hereinbefore been shown, and a receipt, following that form, for poll taxes paid prior to the 1st day of February, would only show the date upon which the tax was paid, and would not and could not show a date subsequent thereto; and therefore the issuance of such a receipt after that date for taxes paid prior thereto would not violate the letter of the law. It seems to Us clearly to be the spirit of the law to prevent the collector receiving payment of poll taxes and issuing receipts therefor after February 1st, and not to prohibit the issuance of receipts for such taxes paid or tendered prior to that date. •

The sixth assignment complains that the judgment is contrary to the law and the evidence in this: The name of neither of the plaintiffs appears on the tax rolls of Hardin county for the year 1913, and, such being the case, before defendant, as tax collector, would be authorized to issue to them poll tax receipts for said year, it was necessary for each of them to render his poll and property taxes to defendant in order that he might place the same upon a supplemental tax roll, which the uneontradicted evidence shows that each of the plaintiffs failed to do. Defendant’s contention under this assignment is that the law requires the tax collector to assess any person who may apply to him to pay his tax if such person had not been previously assessed by the tax assessor, and that the tax collector cannot be forced to issue a poll tax receipt until the person applying therefor has been legally assessed.

It was undisputed that at the time the plaintiffs, through their agents, tendered and paid to the tax collector the amount of poll taxes, none of them had been assessed by the tax assessor of Hardin county, and that the name of none of them appeared on the tax rolls.

Article 7567, Revised Statutes, cited and relied upon by appellant in support of his contention, reads thus:

“Collectors of taxes of counties, cities and towns, when any taxpayer applies to them for the purpose of ascertaining the amount of his taxes, and the collector finds that his name or his property does not appear on the tax roil, shall, and it is hereby made their duty to, assess said taxpayer then and there, and collect the taxes and enter the same upon1 a supplemental tax roll to be made by him. * * * The oath shall be the same as is administered by tax assessors under existing law. The collector of taxes shall receive the following compensation for his services on all assessments made by him under this act, to wit: For assessing the state and county taxes, four cents for each one hundred dollars of property so assessed, and for assessing the poll tax, five cents for each poli; which fee shall be paid in the same way as the tax assessor’s fee in article 5133.”

It is manifest, we think, that the assessment by the collector as provided in this article has reference to the assessment of property only, and not to the assessment of poll taxes. The only reference to poll taxes is at the conclusion of the article, where it is provided what compensation the collector shall receive for assessing taxes, stating in that connection that he shall be allowed five cents for each poll tax assessed. But even if the assessment of a poll tax is necessary in order to enforcement of the collection of it, we do not think that such an assessment is necessary in order for a taxpayer to force the collector to accept the amount levied by law upon him as a poll tax and to issue to him a receipt therefor. The words “poll tax” mean a tax upon the person — a capitation tax — and in this state such tax is levied by law upon all male persons between 21 and 60 years of age, with certain exceptions not necessary to be here stated. Revised Statutes, art. 7354. If it is necessary to assess poll taxes, then the law made it the duty of the collector in this instance to make the assessment when the collector ascertained that the names of the plaintiffs did not appear on the tax roll, and he cannot charge upon the poll tax payer the consequences of his neglect or failure to do so.

To what we have said we think it is only necessary to add that the law does not provide for the payment by a taxpayer of his poll taxes through the mails, and that the plaintiffs R. H. Parr, J. N. Hendricks, J. P. Dennis, and C. M. Baker, who sought to make payment and obtain their poll tax receipts in this way, have no right to compel the collector to issue receipts to them, and if the evidence as to them on another trial is the same they should not be allowed to recover. As the plaintiff A. Wagner was admitted to be a qualified voter in Hardin county, the judgment of the court below is affirmed as to him, but for the error indicated the judgment in favor of the other plaintiffs is reversed and the cause remanded.

Affirmed in part. Reversed and remanded in part.


text:
    DICKERSON et al. v. SAN ANTONIO, U. & G. RY. CO. et al.
    (No. 5344.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 11, 1914.)
    1. Appeal and Eebob (§ 547) — Findings— Review — Statement of Facts.
    Objections to findings of law and fact by the trial judge and to his refusal to find additional facts cannot be reviewed in the absence of a statement of facts.
    [Ed., Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.]
    2. CARRIERS (§ 228) — Injuries to Live Stock — Actions—Evidence.
    Where, in an action against a carrier for injury to certain mules in transit, the court made an unattacked finding that the mules were not bruised or injured as alleged during the trip, the court properly rendered judgment for the carrier for failure of proof.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]

      3. Carriers (§ 228*) — Injuries to Live Stock—Actions—Evidence — Measure of Damages—Failure to Establish.
    Plaintiff’s failure to establish the measure of damages in an action against a carrier for injuries to animals is fatal to a recovery.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]
    4. Carriers (§ 228*) — Injuries to Live Stock — Actions — Evidence — Presumptions.
    ■ Where, in an action for injuries to plaintiff’s mules in transit, the court found that plaintiff executed with the initial carrier an instrument, known as “Emigrants’ Outfit Contract,” for the transportation of nine mules and a grading' outfit, and that there were places provided for watering the stock by the keeper in charge, but that he failed to water them except at S. and was guilty of contributory negligence, it would be presumed from such finding that the contract imposed on the keeper the duty to water the mules.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]
    5. Carriers (§ 207*) — Transportation op Animals—Duty to Water.
    Rev. St. 1911, art. 714, providing that carriers shall feed and water live stock conveyed by them unless otherwise provided by special contract, authorizes carriers to contract with the shippers of animals that such duty shall be performed by the keeper transported with the animals.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 129-239; Dec. Dig. § 207.*]
    Appeal from Atascosa County Court; Walter E. Jones, Judge.
    Action by T. G. Dickerson and others against the San Antonio, Uvalde & Gulf Railway Company and others. Judgment for defendants, and plaintiffs' appeal.
    Affirmed.
    Jas. D. Crenshaw, of San Antonio, and W. J. Bowen, of Jourdanton, for appellants. Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellees.

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

   FLY, C. J.

This is á suit for $980 damages alleged to have accrued to appellant on account of injuries to a shipment of nine mules from Bronson to Pleasanton, Tex. The appellees are three railways, the one named in the style of the suit, the Gulf, Colorado & Santa F6 Railway Company, and the International & Great Northern Railway Company.

The whole brief is devoted to attacks on the findings of law and fact of the county judge and a refusal to find additional facts. There is no statement of facts in the record, and therefore there is no method by which this court can ascertain whether the findings are supported by the facts or not. The presumption is that they are so supported. Gentry v. Schneider, 77 Tex. 2, 13 S. W. 614; Railway v. Wolf, 3 Tex. Civ. App. 383, 22 S. W. 187; City of San Antonio v. Berry, 92 Tex. 319, 48 S. W. 496.

The court found that “the mules were not bruised or injured as alleged by the plaintiff during the trip,” and that conclusion is not attacked. If the animals were not injured as alleged, appellant failed to make out a case, and other matters would be immaterial.

The court also found, in what are termed “conclusions of law,” that appellant “failed to establish the measure of damages,” and, if that be true, appellant failed to sustain his case. We must conclude that the conclusion was based on the facts.

The court found that there was executed by appellant and the initial carrier a certain instrument, known as “Emigrants’ Outfit Contract,” for the transportation of nine mules and a grading outfit from Bronson, Tex., to Pleasanton, Tex., and that there were places provided for watering the stock by the man who accompanied the stock, but he failed to water them except at San Antonio, and was guilty of 'contributory negligence. We must presume that the terms of the contract made it incumbent on the man referred to, to water the mules. Such contracts are upheld by the courts of Texas. Railway v. Daggett, 87 Tex. 322, 28 S. W. 525. It is provided in article 714, Rev. Stats. 1911, that common carriers shall feed and water live stock conveyed by them unless otherwise provided by special contract. In finding the man negligent in not watering the mules, the court necessarily found that the contract provided that he should water them. San Antonio v. Berry, herein cited.

There is no merit in this appeal, and the judgment will be affirmed.