author: RICE, J.

text:
    CONLEY, State Superintendent of Buildings and Grounds, v. TEXAS DIVISION OF UNITED DAUGHTERS OF THE CONFEDERACY.
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.
    Rehearing Denied Oct. 8, 1913.
    Writ of Error Denied by Supreme Court Dec. 17, 1913.)
    1. States (§ 39) — Resolution of Legislature.
    In view of Const, art. 4, § 15, and article 3, §§ 34, 38, recognizing the right of the Legislature to express its will by resolution the Legislature could, by resolution, set apart a particular room in the state capitol for use of the Daughters of tbe Confederacy.
    [Ed. Note. — Por other cases, see States, Dec. Dig. § 39.]
    2. Statutes (§ 2) — “Resolution”—“Law.”
    The chief distinction between a resolution and a law is that a resolution is used whenever the Legislature wishes to merely express an opinion which is to have only a temporary effect, while a law is intended to permanently direct and control matters applying to persons or things in general.
    [Ed. Note. — For other cases, see Statutes, Dec. Dig. § 2.

    Por other definitions; see Words and Phrases,, vol. 7, pp. 6173, 6174; vol. 5, pp. 4014-*4023; vol. 8, p. 7701.]
    3. States (§ -191) — Right to Sue — Action against State Official.
    The state superintendent of public buildings and grounds could be restrained by injunction from interfering with the exercise of a right granted by a resolution of the Legislature; tbe action not being one against the state.
    [Ed. Note. — Por other cases, see States, Cent. Dig. §§ 179-184; Dec. Dig. § 191.]
    4. Statutes (§ 229) — Legislative Resolutions — Peesons Affected.
    The fact that after the Twenty-Eighth Legislature passed House Concurrent Resolution No. 18 (Acts 28th Leg. p. 250), permitting the Daughters of the Confederacy to occupy a certain room in the state capitol, that association incorporated for the purpose of being better able to provide a home for destitute and dependent old ladies of the Confederacy would not deprive them of the benefits and privileges of the resolution.
    [Ed. Note. — Por other cases, see Statutes, Dec. Dig. § 229.]
    5. States (§ 87) — Public Buildings — Use— Superintendent of Public Buildings.
    Notwithstanding that Rev. St. 1911, art. 6383, gives the superintendent of public buildings and grounds authority to take charge of all public buildings not used by the state officers, the question of whether the state has a present need for a room which the Daughters of the Confederacy were permitted to use until the state needed such room by House Concurrent Resolution No. 4, approved Peb. 25, 1889 (Acts 21st Leg. p. 173), is for the Legislature to determine, and not the superintendent of buildings and grounds.
    LEd. Note. — Por other cases, see States, Dec. Dig. § 87.]
    6. States (§ 87) — Use of Public Buildings —“Private Purpose.”
    In view of Const, art. 16, § 39, permitting the Legislature to make appropriations to perpetuate memorials of Texas history, and section 45, requiring it to preserve documents, etc., relating to Texas history, House Concurrent Resolution No. 18, passed by the Twenty-Eighth Legislature (Acts 28th Leg. p. 250), permitting the Daughters of the Confederacy to use a room in the state capitol for depositing the relies of the Confederacy, etc., was for a quasi public purpose, and not for a “private purpose,” within Rev. St. 1911, art. 6389, providing that no room or office in said building shall be used for private purposes.
    [Ed. Note. — Por other cases, see States, Dec. Dig. § 87.

    Por other definitions, see Words and Phrases, vol. 6, p. 5578.]
    Appeal from District Court, Travis County ; Chas. A. Wilcox, Judge.
    Suit by tbe Texas Division of tbe United Daughters of tbe Confederacy against A. B. Conley, State Superintendent of Buildings and Grounds. Prom a decree for plaintiff, defendant appeals.
    Affirmed.
    B. P. Looney, Atty. Gen., and C. M. Cure-ton, Asst. Atty. Gen., for appellant. Gregory, Batts & Brooks, of Austin, for appellee.

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

   RICE, J.

This suit was brought by ap-pellees against appellant for an injunction to restrain him, and all other persons acting for or under his direction, from removing any of tbe relics or property in their charge from the northwest room of tbe first floor of tbe state capitol 'building, or from otherwise interfering with them in tbe use and possession of said room, alleging that appellant bad informed them that be intended to, take from„ them tbe use and possession thereof, and remove said relies therefrom. A temporary restraining order was issued by tbe court in accordance with tbe prayer of said petition, from wbicb this appeal is prosecuted. Appellant alleges tbe invalidity of said restraining order, upon tbe ground that appellees bad no lawful right to tbe possession and use of said room, insisting that it was needed for tbe State Pire Insurance Commission, recently provided for by tbe acts of tbe Thirty-Third Legislature, and that there was no other adequate room in said building at his disposal for its accommodation.

Appellees insist that under and by virtue of House Concurrent Resolution No. 18, passed at the regular session of the Twenty-Eighth Legislature (see Acts of 1903, p. 250), they had the lawful right to the use and occupancy of said room as a museum for the deposit of relics and historical mementoes of the Confederacy, which said resolution is as follows:

“Daughters of the Confederacy — Setting Aside a Room for.
“House Concurrent Resolution.
“To set aside the northwest room of the first floor of the Capitol for the use of the Daughters of the Confederacy for the deposit of relics and historic mementoes of the Confederacy.
“Whereas, the 21st Legislature of this state by House Concurrent Resolution No. 4, approved February 25th, 1889, Session Acts, page 173, extended the thanks of the people of the state of Texas to Messrs. W. H. Westfall, S. W. Lacey and N. L. Norton for the ‘princely donation of the beautiful granite of which this magnificent eapitol is built’;
“And whereas, it was therein resolved that ‘a room in this capitol building * * * be set apart for the reception’ of deposits to be made by said ‘Westfall, Lacey and Norton of specimens of granite, marble and lithographic stone of different grades’; and
“Whereas, it was also therein resolved that ‘in recognition of our appreciation of the donation thus made by W. H. Westfall, S. W. Lacey and N. L. Norton, they are hereby especially invited to visit and occupy said room when they visit the eapitol during life or until the state shall need the room for other purposes’; and
“Whereas, said room has never yet been designated; and
“Whereas, the Daughters of the Confederacy are desirous of having a room in the capitol designated in which to place the relics of the Confederate and other wars in which the state took part; and
“Whereas, it is the wish of the said Col. N. L. Norton and his said associates that said room be designated, and that the Daughters of the Confederacy be permitted to place said relics in said room, and to care for, protect and exhibit the same: Now therefore,
“Be it resolved by the House of Representatives, the Senate concurring:
“Section 1. That the northwest room on the first floor of the capitol building formerly occupied by the purchasing agent of the state, be and the same is hereby set aside for the uses and purposes aforesaid, and that in addition to the deposits made and to be made under paid original concurrent resolution, that the Daughters of the Confederacy of the State of Texas be and they are hereby authorized to take charge of said room and use the same conjointly with the said Westfall, Lacey and Norton, for all of the purposes aforesaid.”

It is contended, however, on the part of appellant that this claim is not well founded for the reasons: First, that the Legislature had no authority, by means of such resolution, to grant said privilege to appellees; second, because in undertaking to place said State Fire Insurance Commission in said room, he was acting within his discretion as superintendent of public buildings and grounds, and therefore, not subject to the writ of injunction herein issued; third, because appellee in this case is a corporation, and is not the same body, association, or legal entity upon which the Legislature attempted to confer any right by virtue of said resolution; and, fourth, because the resolution under which appellees claim must be construed in connection with House Concurrent Resolution No. 4, therein referred to, and, when so construed, it is left to the superintendent of public buildings and grounds and the Governor to determine when the room in controversy shall be needed for other purposes; and, they having reached this conclusion, and there being no abuse of discretion on his part, said injunction should not have been issued.

Before undertaking to discuss the points raised and presented by this appeal, it may be well to state that, long prior to the passage of said resolution, the Daughters of the Confederacy, composed of the wives, widows, and daughters of Confederate soldiers, was a voluntary association for the purpose of perpetuating history and doing benevolent and monumental work, and on the passage of the resolution in question they immediately, took charge ■ of said room so set aside to them, furnishing the same, and depositing therein many relics and mementoes of the war of the Confederacy, consisting of guns, swords, battle flags, historical documents, uniforms, and other articles in use by Confederate generals and soldiers, valuable pictures and books including the Ordinances of Secession, and many other interesting relics relating to said war. This room, though usually closed, except during their meetings, was always accessible to the public who might desire to visit it, by application to the watchman in charge of the building. In order to erect a home for the benefit of the old ladies of the Confederacy, and take title thereto and convey the same to the state, it was deemed advisable, in 1905, for such association to obtain a charter, which was done, but this in no manner changed the purpose or object of the association, nor the character and holding of this room, nor has there been any change in the management of the Daughters of the Confederacy, nor in the persons comprising said order. Though it is claimed on the part of appellant that there was no other adequate room equally as suitable as tbis witbin said building in wbicb tbe State Fire Insurance Commission could be located, yet it was admitted by appellant that other rooms might be selected by him which could be used for this purpose. It is shown in this connection that appellant offered other apartments in said building for the use of appellees, but stated at the time of so doing that he could not assure them that they could hold same, hecause if he had use for the same, he would dispossess them at any time. It also appears from the evidence that the room in question had been furnished at considerable expense to appellees, and its formation was such that the carpeting would be practically useless if removed.

Addressing ourselves to the first contention raised by appellant, we are of the opinion that the Legislature by resolution had the right to designate and set apart said .room for the use of the Daughters of the Confederacy. While there is a marked distinction between a law and a resolution, yet our Constitution clearly recognizes the right of the Legislature to express its will by resolutions, and in the passage thereof the same rules, provisions, and limitations shall apply thereto, except as to the caption and enacting clause. See article 4, § 15, p. 343, Harris Constitution of Texas; also article 3, § 38, p. 279, and article 3, § 34, p. 249, Id.; State v. Delesdenier, 7 Tex. 76; Navigation Co. v. Galveston County, 45 Tex. 272; Franklin v. Kesler, 25 Tex. 142.

The chief distinction between a resolution and a law seems to be that the former is used whenever the legislative body passing it wishes to merely express an opinion as to some given matter or thing, and is only to have a temporary effect on such particular thing; while by the latter it is intended to permanently direct and control matters applying to persons or things in general. See 34 Cyc. p. 1667; 25 Cyc. p. 163. In support of this construction of the right of the Legislature to act in the present instance by a resolution, instead of by bill, numerous illustrations, occurring both before and after the ■adoption of the present Constitution, embracing various subjects, might be cited, among others a joint resolution authorizing clerks of the Legislature to occupy the state library for the performance of their duties (G. L. 1871, p. 148); joint resolution making ■appropriation for refurnishing and repairing the mansion (G. L. 1874, p. 237); joint resolution setting apart certain rooms in the .state capitol for the use of the Senate and House of Representatives (G. L. 1874, p. 237); .joint resolution providing for lighting the capitol and mansion with gas (G. L. 1875, p. 189); joint resolution providing for calling a •convention for framing the present Constitution of Texas (G. L. 1875, p. 201); joint resolution providing for survey and sale of .property belonging to the state about public buildings and grounds (G. L. 1876, p. 314); joint resolution allowing room in the capitol for Western Union Telegraph Office (G. L. 1881, p. 125); joint resolution reaffirming relinquishment to Galveston of Pelican Flat and Island (G. L. 1879, p. 190); joint resolution acknowledging donation by Westfall and others, and setting apart room in the capitol (G. L. 1889, p. 73); joint resolution providing hearing room in the capitol building for the Railroad Commission (Acts of 1903, p. 251).

We do not think there is any merit in appellant’s second proposition, to the effect that no writ of injunction could be issued against him for the reason that he was acting as superintendent of public buildings and grounds. This is not a suit against the state, but only against one of its public officers, seeking to enjoin him from doing an act which would interfere with plaintiffs’ right of possession and occupancy of said room; and, if his act is unlawful in this respect, he could be restrained by injunction. See Conley v. Daughters of the Republic (Sup.) 156 S. W. 197; 36 Cyc. 917.

Nor do we believe that the mere act of incorporation for the purposes indicated under the facts of this ease should be held to deprive the appellees of the right to use the room for the purposes indicated in said resolution. There was no change in the personnel or management, nor in the purposes and objects of the association, and it would be highly technical to hold that since they incorporated merely for the purpose of providing a home for destitute and dependent old ladies of the Confederacy, they should be deprived of the privileges and benefits thus accorded them.

Even if it be conceded that said resolution should be construed in connection with Joint Resolution No. 4, still, we do not think it follows that appellant’s contention should be sustained. The limitation of the use as made in the last resolution, to wit, until the state should need the room, does not indicate who shall determine this question. The Legislature, as the representative of the people, having the right to grant the use of the room to the Daughters of the Confederacy for the purposes named, must, we think, be held (in view of the fact that it did not say who should pass upon the question of the state’s needing the room) to have reserved this right to itself. At least, not having vested this discretion in any other person, we are not prepared to hold with appellant that he had the right to determine the need of the state in' this respect. Notwithstanding the fact that article 6383, R. S. 1911, gives’the superintendent of public buildings and grounds the authority to take charge and control of all public buildings, grounds, and property of the state which may not be used by the different officers of the state government, still this must be construed, we think, in subordination to the right of the Legislature to designate and set apart rooms in said building for such purpose as it may see proper, ■and such designation cannot be set aside by any other authority.

It is true, as asserted by appellant, that article 6389, R. S. 1911, provides that no room, apartment, or office in said building shall at any time be used by any person as a bedroom, or for any private purpose whatever, but we think that the purposes for which the room in question was set apart cannot be regarded, in the purview of this statute, as having been set apart for private purposes; but, on the contrary, the purpose was a quasi public one, as a museum for •the display of specimens of granite and lithographic stone, and to preserve the relics and mementoes of the Civil and other wars in ■which the state took part. Especially are we impressed with this view, since the Constitution has provided in section 39, art. 16, that the Legislature may, from time to time, make appropriations for preserving and perpetuating memorials of the history of Texas, by means of monuments, statutes, paintings, and documents of historical value. And by section 45, art. 16, provided that: “It shall •be the duty of the Legislature to provide for the collecting, arranging and safely keeping such records, rolls, correspondence and other documents, civil and military, relating to the •history of Texas, as may be now in possession of parties willing to confide them to the care and preservation of the state” — thus indicating that the makers of said instrument ■deemed it important that the Legislature should have power to make appropriate provision for the collection and preservation of such relics and mementoes, as the evidence shows has been done in the present instance by the Daughters of the Confederacy.

Believing that the court below did not err in granting the injunction, its judgment is .affirmed.

Affirmed.


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    SLAUGHTER v. BANK OF TEXLINE et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 14, 1914.)
    1. Appeal and Error (§ 253) — Grounds op Review — Necessity of Exception.
    Unless an exception to the answer and to a plea of intervention was called to the attention of the trial court and action thereon requested, the exception was waived in the court below. '
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1485, 1488, 1491-1493; Dec. Dig. § 253.]
    2. Assignments (§ 48) — Equitable Assignments — Obdeb UPON OB APPROPRIATION OP Particular Fund.
    Where the holder of a note sent it to a ■bank for collection and the maker ordered the bank to apply his deposit to the payment of the note, there was an equitable assignment of ■the deposit for payment of the note.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 133; Dee. Dig. § 48.]
    3. Assignments (§ 121) — Action bt As-signee in Own Name.
    Where the maker of a note directed the bank holding it for collection to apply his deposit to the payment thereof, the holder as assignee could sue therefor in his own name.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 200-205; Dec. Dig. § 121.]
    4. Assignments (§ 87) — Rights and Liabilities op Parties — Equities.
    Where a deposit in a bank had been equitably assigned to be applied on the payment of the depositor’s note held by the bank for collection, the president of the bank holding the depositor’s subsequently matured note could not claim to be a subsequent purchaser or lien-holder without notice.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 155; Dec. Dig. § 87.]
    5. Banks and Banking (§ 134) — Deposits— Application.
    A bank, after notice that a deposit was to be applied in payment of the depositor’s note which it then held for collection, and after agreeing to so apply it, had no legal right to make or permit any other disposition of the deposit.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 353-374; Dec. Dig. § 134.]
    Appeal from Dallam County Court; T. S. Mills, Judge.
    Action by W. B. Slaughter against M. M. Rice, with writ of garnishment against the Bank of Texline, and intervention by W. F. Wall. Judgment for garnishee, and plaintiff appeals.
    Affirmed.
    B. N. Richards, of Dalhart, for appellant. Tatum & Tatum, of Dalhart, for appellee.

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

   HUFF, C. J.

The appellant, W. B. Slaughter, instituted suit against M. M. Rice, in the county court of Dallam county, for- the sum of $288.75, interest and attorney’s fees, in which suit he sued out a writ of garnishment against the Bank of Texline. The bank answered that it had on deposit $299.70 in the name of M. M. Rice. Rice filed a controverting affidavit to the answer of garnishment, alleging: The bank was not indebted to him. That the $299.70 claimed to be owing by it to Rice was placed in the bank to pay a note due W. F. Wall, then held by the bank, and that he (Rice) informed, advised, and requested the bank to apply the deposit upon the note due by him to Wall. The note to Wall was for the sum of $300, and had been at the said bank for collection, and the bank consented to apply said sum on the note. That the bank had both the note and the money in its possession. That the money was Wall’s, and that the bank knew that fact, and Rice further asked that Wall be brought into the case. W. F. Wall intervened, setting up his note against Rice, for the sum of $300, and alleged that the money was deposited to pay off the note in the bank and was deposited and held for him to be applied on said note.

The appellees, Rice and Wall, object to the first and second assignments, which are to the effect that the court erred in overruling appellant’s exception to the answer of Rice, and the plea of intervention by Wall. The objection of the appellees to the consideration of the assignment is that by the statement it is not shown that the exception was presented to the trial court and that he in fact ruled on the same and appellees assert that as a matter of fact the record does not show that the exception was passed on by the trial court. On looking through the record, we find no order of the court overruling the exception or a bill of exception taken to the action of the court in overruling the same. We must therefore sustain ap-pellees’ exceptions to the assignments. Unless the exception was called to the attention of the trial court and action thereon requested, we must treat the exception to the answer and the plea of intervention as having been waived in the court below. Telegraph Co. v. Rosentretor, 80 Tex. 406, 16 S. W. 25; Northern Assurance Co. v. Samuels, 11 Tex. Civ. App. 417, 33 S. W. 239.

The third assignment is that the court erred in rendering judgment in favor of Wall for the sum deposited for. the reason that it is not shown by the testimony that there was a transfer of the fund before the garnishment was served on the bank. The trial court filed his findings of fact, and therein found, that M. M. Rice executed his note to intervener, W. E. Wall, for the sum of $300, which is dated in March, 1911, and due 12 months after date; that Wall sent the note to the bank for collection, whereupon Rice paid the interest on the note when due and at that time secured an extension of six months on the note. At the expiration of that time Rice called on the bank to pay the note and had in the bank at that time on deposit $299.70, and requested the cashier of the bank to apply that sum on the payment of the note due Wall. The cashier of the bank agreed to do so. The bank failed to apply the money on the note of Wall, but kept it in the bank in the name of Rice. The bank was the agent of Wall, for the collection of the note at the time he agreed to apply the deposit on the note. Rice also requested the bank to procure a release of the mortgage lien on certain property- held by Wall and to secure the note due him, all of which the bank agreed to do. The note sued on by Slaughter was not due when Rice requested and the bank agreed to apply the money on the Wall note, and after such request Rice made no other order nor drew any cheek on the deposit. The appellant Slaughter, after his note came due, sued and garnished the bank of which he was then and is now its president. The intervener Wall in this ease is the party to whom Rice ordered the deposit to be paid on his note. We think the evidence is sufficient in the record to support the findings of the,trial court.

The direction of Rice to the agent of Wall to apply the money in the agent’s possession to the note which was held for collection was, we think, an equitable assignment of the fund, and by agreement of the agent, and Rice, was such an assignment of the funds before there was any garnishment sued for or issued. The assignment of a chose in action may be transferred orally or by writing. The form of the transfer, whether written or verbal, is immaterial. Word v. Elwood, 90 Tex. 130, 37 S. W. 414; Ogden v. Slade, 1 Tex. 13; Rollinson v. Hope, 18 Tex. 446; Railway Co. v. Wright, 2 Willson, Civ. Cas. Ct. App. § 340. The deposit in the bank having been assigned verbally to pay the note of Wall then in the possession of.the bank for collection under an agreement by the bank to apply the money so deposited, to-the payment of the note, was an equitable assignment of the indebtedness due by the bank to Rice for which Wall could sue in his own náme. Authorities supra; Milmo Nat. Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828.

The debt having been transferred before the garnishment was sued out or served,, the appellant Slaughter cannot therefore claim to be a subsequent purchaser or lien-holder without notice. Smith v. Railway Co.,. 39 S. W. 969.

After the bank had been notified that the deposit was to be applied on the note of Wall, which it then held for collection, and after agreeing so to apply it on the note, it had. no legal right to make or permit to be made any other disposition of the deposit. Bank v. Munzesheimer, 26 S. W. 428.

We find no such error assigned as will require a reversal of the case, and the judgment will therefore be affirmed.


author: TALBOT, J.

text:
    TEXAS CO. v. EARLES.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 10, 1914.
    On Motion for Rehearing, Feb. 14, 1914.)
    1. Appeal and Ekeob (§ 917) — Peestjmp-txons.
    Where the record does not show that defendant’s general demurrer to the petition was presented to and acted upon by the trial court, it must be presumed that such demurrer was abandoned or waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. & 917.]
    2. Appeal and Eeeoe (§ 1041) — Pleading (§■ 228s') — Amendment—Allowance.
    It is within the discretion of the trial court to permit a trial amendment to the petition, even though exceptions have been sustained, and the mere failure to replead as directed by rule 27 for the district and county courts (142 S. W. xix), if the case is not then tried, will not work a reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. §: 1041; Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]

      3. Appeal and Error (§ 1002) — Review — Questions op Fact.
    Where the evidence is conflicting, but is sufficiently substantial to. sustain the verdict, the appellate court will not review the same, though it may have arrived at a different result as an original proposition.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    4. Trial (§ 295) — Instructions—Construction as a Whole.
    In determining the sufficiency of a charge, it must be construed as a whole.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    5. Trial (§ 260) — Instructions—Request.
    Special charges requested are properly refused where they are covered by the charge as given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    6. Mines and Minerals (§ 121) — Pipe Lines —D.amages por Escape.
    The owner of a pipe line which carries oil through the ground is liable for damages caused by its escape regardless of his negligence.
    [Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 242, 244; Dec. Dig. § 121.]
    7. Appeal and Error (§ 978) — Review—Discretion op Trial Court.
    The denial of a new trial on the ground that one of the jurors disclosed material facts which had not been introduced upon the trial will not be reviewed on appeal, where the trial court heard evidence in accordance with Rev. St. 1911, art. 2021, and no abuse of its discretion appears.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3866-3870; Dec. Dig. § 978.]
    On Motion for Rehearing.

      8. Evidence (§ 7) — Judicial Notice — Poisonous Character op Oil.
    In a suit against a pipe line company for the death of cattle claimed to have been killed 'by poisonous oil, which escaped from the pipe line into a creek flowing through plaintiffs pasture, the court cannot take judicial notice that the oil is poisonous, and will cause the death of •cattle drinking it.
    [Ed. Note. — For other cases, see Evidence, ■Cent. Dig. § 6; Dec. Dig. § 7.]
    Appeal from Ellis County Court;. J. C. Lumpkins, Judge.
    Action by W. H. Earles against the Texas ■Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded ■on rehearing.
    W. H. Fears, of Waxahaehie, for appellant. 'T. H. Collier, of Ennis, for appellee.

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

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

   TALBOT, J.

Appellee sued appellant to recover damages for the death of 16 head of his cattle, and for injury of 29 head, caused by drinking water poisoned by oil, which escaped from appellant’s pipe line in Ellis county, Tex., at a point where it crosses •Chambers creek, and which flowed down said ■creek into the pasture where plaintiff’s cattle were confined. It is alleged that the 16 head of cattle that died were of the reasonable value of $25 each, and that the 29 head alleged to have been injured were damaged $5 per head. The answer of the defendant consisted of a general demurreir and general denial. A jury trial resulted in a verdict and judgment in favor of the plaintiff, and the defendant appealed.

The record does not show that defendant’s general demurrer to' plaintiff’s petition was presented and acted upon by the trial court, and, under repeated decisions of the appellate courts of this state, it must be held that such demurrer was abandoned or waived.

The assignment complaining of the court’s action in overruling defendant’s motion to strike out plaintiff’s trial amendment presents no reversible error. It is within the discretion of the trial court to permit a trial amendment of the plaintiff’s petition, whether exceptions to the original petition had been sustained or not (American Warehouse Co. v. Ray, 150 S. W. 763), and the mere failure to replead, if the case is not then tried, as directed by rule 27 for district and county courts (142 S. W. xix) should not work a reversal of the case.

Appellant’s third and sixth assignments of error are presented together, and charge that the verdict of the jury is contrary to and not supported by the evidence. These assignments are overruled. The evidence was conflicting upon the issue of whether or not the oil from defendant’s pipe line reached the pasture in which plaintiff’s cattle were confined and injured them; but it cannot be said that the verdict is without evidence to support the jury’s finding upon this issue. On the contrary, the record discloses substantial evidence, which authorizes and sustains the verdict, and, this being true, no matter what might have been the views of this court in regard to the same as an original proposition,' we would not be warranted in disturbing the verdict.

The court’s charge is not subject to the criticism contained in appellant’s fourth and fifth assignments. Construing the charge as a whole, it is practically without error, and presents and applies, substantially, all the law applicable to the facts of the case. There was no error, therefore, in refusing the special charges requested by appellant, the refusal of which is made the basis of its seventh assignment of error. They were sufficiently covered by the court’s main charge.

Nor did the court err in refusing to give appellant’s special charge, to the effect that, before plaintiff would be entitled to recover, he must establish by a preponderance of the evidence that the defendant was guilty of negligence, either in the construction or in the operation of its pipe line. If oil escaped from appellant’s pipe line, and flowed down Chambers creek into the pasture-in which appellee’s cattle were kept, and the cattle drank said oil, and were injured and killed as claimed by appellee, then appellant was liable for the damages sustained by ap-pellee thereby, regardless of the question of negligence on the part of appellant in the construction or maintenance of said pipe line. Texas & P. Ry. Co. v. O'Mahoney, 24 Tex. Civ. App. 631, 60 S. W. 909; Texas Co. v. Giddings, 148 S. W. 1142.

The ninth and last assignment asserts that the court erred in refusing to give appellant a new trial, because it was made to appear on the hearing of its motion therefor that the jury, after they had retired to consider of their verdict, and before they had agreed upon the same, received material testimony from one of the jurors which had not been introduced upon the trial of the case. Article 2021 of our Revised Statutes provides: “Where the ground of the motion is misconduct of the jury or of the officer in charge of same, or because of any communication made to the jury, or because the jury received other testimony, the court shall hear evidence thereof; and it shall be competent to prove such facts by the jurors or others, by examination in open court; and, if the misconduct proven, or the testimony received, or the communication made, be material, a new trial may, in the discretion of the court, be granted.” In accordance with this statute the trial judge heard evidence touching the communication charged to have been made to the jury, and, in the exercise of that discretion conferred upon him by the statute quoted, refused to grant the new trial. The investigation of the matter seems to have been full and fair, and no abuse of the court’s discretion is made to appear. This being true, the court’s action will not be disturbed. Our conclusion is that no reversible error has been pointed out, and the judgment of the court below should be affirmed. It is therefore accordingly so ordered.

Affirmed.

On Motion for Rehearing.

Further consideration of this case on appellant’s motion for a rehearing leads us to the conclusion that we erred in affirming the judgment of the county court. We discover that there is absolutely no evidence in the record showing or tending to show that the oil which it is alleged injured and killed appellee’s cattle was poisonous, or otherwise of such a character as would, when drank, result in their injury or death. The point is made that, without proof that such would probably be the effect of drinking the oil, the verdict is not supported by the evidence. We believe this is the correct view of the matter. It cannot be said, we believe, that it is a matter of common knowledge that the character of oil which escaped from the pipes of appellant would, if drank by an animal, have the effect to injure or kill it; hence the county court nor this court can. judicially know that such would be its effect-

We are further of the opinion that the evidence, without contradiction, discloses that one of the cattle alleged to have been killed by drinking the oil in question, and for the value of which appellee recovered judgment, died before the oil escaped from appellant’s' pipe, and of course in such case appellant was not responsible for its death. This might be corrected by requiring a remittitur, or by reforming the judgment; but the case, for the reason above indicated, would have to be reversed and remanded anyway.

Appellant’s motion for rehearing is therefore granted, and the judgment of the court below is reversed, and the cause remanded for a new trial.


author: MOURSTJND, J.

text:
    RAHE v. YETT et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1914.)
    1. Bills and Notes (§ 484) — Actions — Pleading.
    In a suit on a check by an assignee, an. answer, alleging an original agreement by the drawer to pay the payee $600 for land in merchandise and in settlement of accounts, and that for the protection of the payee checks were issued each month to be taken up at the end of' the month and new checks for a less amount showing deductions on account of payments during the month were issued, that the check im question was issued September 1st under an agreement that the amount of merchandise furnished the payee during that month and of the accounts paid should be deducted from the check, and that merchandise was furnished and accounts were paid by the drawer during that month amounting to $102, which should be deducted from the check, pleads a partial payment and not a set-off.
    [Ed. Note. — For other cases, see Bills and-Notes, Cent. Dig. §§ 1535-1538, 1563; Dec. Dig. § 484.]
    2. Bills and Notes (§ 539) — Statement oe Facts — Construction oe Findings.
    Where an answer pleaded facts constituting a plea of payment on the note sued on a finding that plaintiff’s assignor was “indebted” to-defendant, and a conclusion of law that defendant was entitled to a “set-off” against such assignor, will be regarded on appeal as a finding of a partial payment, though there is no statement of facts in the record, the court having made a general finding that the allegations of the answer were true.
    [Ed. Note. — For other cases, see Bilik and, Notes, Cent. Dig. §§ 1911-1913, 1934; Dec. Dig. § 539.]
    3. Evidence (§ 443) —Paeol Evidence Ae-eecting Documents.
    Where a check was given as part of a more comprehensive transaction, the terms of which.. were not attempted to be expressed in writing, parol evidence of the terms of the transaction in which the check was given and of the mode provided for the check’s discharge is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1377-1389, 1383-1392, 1394-1423;. Dec. Dig. § 443.]
    4. Bills and Notes (§ 350) —Rights oe Holdees.
    A purchaser of a cheek after maturity, which shows on its face that payment had been refused, takes it subject to tbe equities between. the parties, and if the debt evidenced by the check has been partially discharged he acquires nothing more than the balance due.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. § 882; Dec. Dig. § 350.]
    5. Election of Remedies (§ 7) — What Constitutes.
    A purchaser of land agreed to pay the price in merchandise and by settlement of accounts due from the grantor and for the purpose of securing the grantor checks for the balance of the purchase price were issued each month with the understanding that at the end of the month they should be taken up and chebks for a lesser amount, on account of payments during the month, should be issued for the succeeding month. The grantor, contrary to the terms of the agreement, transferred one of the checks so issued in payment of another tract of land, although nearly half of the amount of the check had been discharged during the month. The purchaser, being uncertain of his rights, brought an action against the grantor and levied an attachment upon the land bought by his grantor with the proceeds of the check. Held, that this action did not entitle the holder of the check, who took after maturity and with notice of dishonor, to assert his right to collect the entire amount of the check, upon the theory that the purchaser having brought an action against the grantor made an election of remedies precluding him from setting up his partial payment, for such action would not affect the rights of the parties to the check.
    [Ed. Note. — Eor other cases, see Election of Remedies, Cent. Dig. § 12; Dec. Dig. § 7.]
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Action by Wm. Yett against Otto Rahe and another. From a judgment for plaintiff, the named defendant appeals.
    Reformed and affirmed.
    H. C. Geddie, of Kerrville, for appellant

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

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

   MOURSTJND, J.

Wm. Yett sued Otto Rahe as maker, and A. Wood as indorser of a check for $228.48, dated October 1, 1912, executed by Rahe to Wood, and sought to establish and foreclose an equitable lien upon three certain lots sold by him to Wood for said check. It was alleged that the cheek was indorsed and delivered to plaintiff on October 5, 1912, and payment thereof was refused by the bank upon which it was drawn.

Wood answered by general demurrer, various special exceptions, a general denial, and a special answer containing the following allegations: That he sold Rahe certain land, and it was understood between them at the time of such sale that he would, take pay for his land in merchandise, such as he needed from time to time, out of Rahe’s store, and that Rahe would pay for such other necessaries as were essential for the proper care and maintenance of Wood and his wife from time to time, until the consideration for said land was used up; that Rahe complied with his part of said contract and furnished Wood necessaries from his store and paid his drug and doctor’s bills; that, when said check was made, the amount of said check was yet due Rahe by Wood, and it was agreed that Rahe would furnish Wood necessaries during the month of September, 1912, as he had been doing, and on October 1st, when such check should become due, credits for such amounts as had been furnished and paid by Rahe would be made on said check; that at the time said cheek was executed Wood had a small account with Rahe, and continued to trade with him under the terms of the contract above mentioned, and at Wood’s instance and request Rahe paid a physician’s bill and a drug bill on October 1, 1912, the aggregate of the amount due Rahe and the amounts so paid out being $102.48; that at the time Wood bought the lots from plaintiff, and prior thereto, the latter had full knowledge of all the facts above mentioned, and it was understood and agreed that plaintiff would settle the account due Rahe and adjust the matter with him; that in fact the price he was to pay plaintiff for the lots was $125 and not $225-as alleged by plaintiff; that no lien was retained by Wood upon the land sold by him. to Rahe, and it was agreed that said check was accepted and held by Wood for his protection. Other allegations are made, not. necessary to state, and defendant Wood sought to rescind the sale of the lots by-plaintiff to him.

Rahe answered by general demurrer, special exceptions, general denial, and a special answer to the following effect: That sometime prior to September 1, 1912, he bought certain land from Wood for $600, and it was agreed that Wood would accept pay for-the land in merchandise, such as’ he and his family needed, out of Rahe’s store, and that Rahe would pay for such other necessaries, as Wood and his family needed, including drug bills and doctor’s bills; that he had furnished Wood from time to time as agreed, and would from time to time give Wood a check, payable a month or more in advance of the date when given, for the balance or approximate balance due at the last settlement, to protect Wood, and when the check became due it would be taken up and another one given, or an understanding had between them; that on September 1, 1912, he gave Wood his check fo'r $225, due October 1st thereafter, for the purpose of covering all sums due Wood for the balance of the purchase price of said land, and for the purpose of securing to Wood such purchase price; that in fact the check for $228.48 was for a greater sum than he owed Wood, as Wood then had an account of a few dollars with Rahe; that on October 1, 1912, when the check became due, Wood owed Rahe for merchandise furnished under the contract aforesaid, $36.43; that at Wood’s instance and request that he pay Dr. Lang-ford’s bill for medical services amounting to $56.35, he paid said bill on October 1st, and also at Wood’s request paid Wood’s drug bill to O. Sellers; that the total sum thus paid by Rahe for Wood and to he credited on said checls at the maturity of same on October 11, 1912, was §102.48; that the amount due Wood, not taking into consideration the balance due defendant on account, was $228.48, and, after the credits aforesaid were made, there remained due on the land and on said check the sum of $126.00; that he has tendered plaintiff said sum of $126, which plaintiff declined, and refused to surrender the check, and he tenders into court $130.86 to cover said amount with interest; that plaintiff accepted the check from Wood, after its maturity, knowing there was a credit due on said check amounting to $102.48, and took same in full payment for the lots sold by him to Wood. He prayed that the sale of the lots by plaintiff to Wood be rescinded, or that plaintiff be required to accept the money tendered, and take nothing further by his suit

Plaintiff, by supplemental petition, urged a general demurrer and special exceptions to the answers, and alleged that on or about October 8, 1912, and after Wood had sold and indorsed the check to plaintiff, Rahe sued Wood for the debt of $102.48, which he claims in his answer should be credited on the check, and on November 4,1912, obtained judgment for said sum; that Rahe had an attachment issued in said suit, and levied upon the lots sold by plaintiff to Wood; that such judgment is still in force and so is the attachment lien; that if Rahe ever had the right to have said $102.48 credited on the check he also had the right, after sale and indorsement of the check by Wood, to collect .the $102.48 from Wood by suit, but the two remedies were inconsistent, and could not be pursued together, and the adoption of the remedy of suit against Wood was an election between said remedies, and precluded him from claiming the right to have the $102.48 credited upon the check.

Several of the special exceptions urged by plaintiff presented the objection to the answers that thereby a parol agreement was alleged changing and modifying a written contract. No judgment was entered with respect to the demurrers and exceptions, but Wood and Rahe in their trial amendment state that the same is filed to amend the answers in the respects wherein the court had held them defective. In such trial amendment they amplified the defenses urged in their original answers, and Wood alleged that plaintiff knew there was an offset due Rahe on the check; that the check showed that payment thereof had bkeen refused by the bank; and that he told plaintiff there was a credit of about $100 to be placed on the cheek. Wood tendered a reconveyance of the lots deeded him by plaintiff, and both .defendants tendered a release of the attachment lien upon the lots. No exceptions were urged to the trial amendment.

By supplemental answer Rahe alleged that the suit mentioned in plaintiff’s supplemental petition was brought at the instance of his attorney, Louis Walter, as a mere precautionary measure, when he learned that the check had been transferred and before he knew that the transfer did not affect his liability; that said suit has not been prosecuted further than to obtain judgment, no lien has been foreclosed, and it is not his purpose, nor has it been since he discovered the real facts in the case, to hold such judgment.

The trial before the court resulted in a judgment for plaintiff against both defendants for $234.80, from which Rahe appealed.

The court filed findings of fact and conclusions of law. The facts found, in so far as they affect questions raised upon this appeal, briefly stated, are as follows:

(1) In June, 1912, Wood sold Rahe certain land, the deed reciting $000 cash paid, but the parties had an agreement as to the payment for the land substantially as alleged by the defendants in their answer herein, “payment to be made by Rahe from time to time in merchandise and in the settlement of other accounts for the said Wood.”
(2) On September 1, 1912, Rahe owed Wood a balance for said land of $228.48, and gave Wood a check for such amount, dating same October 1, 1912, being the check sued on by plaintiff. It was agreed between Wood and Rahe at the time the check was given that it was not due or to be paid until October 1, 1912, and in the meantime Rahe was to furnish Wood with merchandise, pay his doctor’s bills and drug account if any he made, and that such sum should on October 1st be deducted from the said check.
(3) Just before the check became due, Rahe notified the bank on which it was drawn not to pay the same. Wood presented it for payment on October 1, 1912, and. payment was refused; the cashier endorsing the same, “Payment refused.”
(4) On October 5, 1912, plaintiff sold Wood the lots described in the petition for $225 as expressed in the deed; the check for $228.48 being indorsed and delivered by Wood to plaintiff, and it being agreed that the balance over the price of the land was to be paid by plaintiff to Wood by delivery of Wood.
(5) Plaintiff at the time he received the check knéw that payment thereof had been refused by the drawer; that the same was past due, and he also knew that Wood was indebted to Rahe in some amount, “but did not know of any agreement as between Wood and Rahe that no part of the said check was to be paid in money.”
(6) At the time Wood sold and indorsed the cheek to plaintiff, he (Wood) was indebted to Rahe in the sums and items specified in the defendant’s answer, aggregating $102.48.
(7) On October 8,1912, Rahe sued Wood for the claim set up and pleaded by way of set-off in Rate's answer herein, amounting to $102.48; that in said suit Rahe had an attachment issued and levied upon the lots sold by plaintiff to defendant Wood; that on November 4, 1912, judgment was entered in said suit in favor of Rahe for the amount sued for; that, at the time this suit was brought, said judgment and attachment lien were in full force and effect, but Rahe has not collected the judgment or foreclosed the lien in so far as is shown.
(S) After the rendition of said judgment, but before this suit was filed, Rahe tendered plaintiff the amount of said check, less $102.-48, and has since then kept said tender good, but plaintiff has at all times refused to accept the amount tendered and release Rahe; that Rahe has tendered into court $130.86, being the balance due on said check, after deducting $102.48, plus 6 per cent, interest to date of trial. Rahe executed and tendered to plaintiff a release of the judgment against Wood and of the attachment lien above mentioned, which was refused by plaintiff.
(9) Wood, shortly after the trade between him and plaintiff, offered to deed back to plaintiff the lots and give him $30 in addition, if plaintiff would rescind the sale of the lots and return the check to Wood, and this was refused by plaintiff. Wood also tendered into court the deed he received to the lots, a reconveyance thereof to plaintiff, and a release by Rahe of the attachment lien, all of which plaintiff refused.
(10) That plaintiff has no equitable lien upon the lots sold by him to Wood.

The court’s conclusions of law, on questions arising upon this appeal, were:

1. That, at the time the check was indorsed by Wood to plaintiff, Rahe had a valid defense by way of set-off against plaintiff and Wood, in the sum of $102.48 against any suit brought on the check, or Rahe was entitled to an independent suit against Wood for said amount.
2. That these remedies were inconsistent, and, Rahe having procured a judgment in the justice’s court against Wood for said amount, he elected his remedy and is now bound thereby, and is estopped from pleading the same matter as a defense in this suit on the check.
3. That, if Rahe had a right to set off such amount in this suit against plaintiff’s claim, the same was not properly pleaded, as the account was merged into the judgment, and therefore the judgment and not the account should have been pleaded to offset plaintiff’s claim. These conclusions are attacked by appellant by a number of appropriate assignments of error.

His first contention is that the court erred in permitting a recovery against him for the amount of the check for the reason that the sum of $102.48 had been paid thereon pursuant to and in accordance with the terms of the contract between him and Wood, that thereby the debt evidenced by the check was extinguished to that extent. As plaintiff received the check knowing that payment thereof had been refused by the drawer, that it was past due, and that Wood was indebted to Rahe in some amount, he took the same subject to the equities existing between Rahe and Wood. Johnson v. Harrison, 177 Ind. 240, 97 N. E. 930, 39 L. R. A. (N. S.) 1207; Y. M. C. A. Gymnasium Co. v. Rockford Nat. Bank, 179 Ill. 599, 54 N. E. 297, 46 L. R. A. 809, 70 Am. St. Rep. 135; Terhune v. Bank, 24 Tex. Civ. App. 244, 60 S. W. 352. It was not necessary that he should know just what those equities were; having been put on notice thereof, it was his duty to inform himself of their extent.

The trial court based his decision upon- the theory that offsets had been pleaded, and not payment. The contention by appellant is that payment was pleaded and proved. We conclude that Wood and Rahe pleaded payment, and not offset. They allege an original agreement to the effect that Rahe was to pay Wood the $600, contracted to be paid for land, in merchandise and the settlement of accounts for Wood; that the items composing the $102.48 were paid under said contract, and also under a subsequent agreement, made September 1st, part of which was evidenced by the check sued upon, by which agreement it was provided that on October 1st the amount due Rahe for merchandise furnished Wood during September and accounts paid for Wood should be deducted from the check. There is no statement of facts, but the court found the evidence established the original agreement as pleaded, and also that, at the time the check was given, it was agreed between Wood and Rahe that it was not to be due until October 1, 1912, and that “in the meantime Rahe was to furnish Wood with goods and supplies, pay his doctor’s bills and drug account if any he made, and “that such sum should on October 1st be deducted from the said check”; and that at the time Wood sold the check to plaintiff he (Wood) was indebted to Rahe in the items specified in the defendant’s answer, aggregating $102.48. We think these findings, when considered together, amount to a finding that the allegations of the answer pleading payment were sustained by the evidence. The court expressly finds the agreement to have been that the items were to be deducted from the check, and that the original agreement was for payment of the debt in the manner pleaded, and he finds that the items are correct as pleaded by defendants, but uses the expression that Wood was “indebted” to Rahe in said amount at the time the check was transferred. We do not think the court, by using the word “indebted,” meant to find that the $102.48 was a mere offset instead of a payment. Had he found that the merchandise was furnished and the bills paid by Rahe without any agreement for the deduction of the amounts from the check, it would plainly appear that these items could only constitute offsets, but instead be found tbe agreements above stated.

No issue was made as to tbe right to plead and prove by parol an agreement for payment of tbe check otherwise than in money, and it appears that such objection could not have been asserted because tbe cheek- was given as part of a more comprehensive transaction, tbe terms of which were not attempted to be expressed in writing, and therefore proof of tbe parts not reduced to writing was admissible, and further because tbe check- was not given' in final settlement of their accounts, but with tbe distinct understanding that a further settlement would be bad at tbe end of September. Allen v. Herrick Hardware Co., 55 Tex. Civ. App. 249, 118 S. W. 1157; Meeks v. Holmes Commerce Co., 154 S. W. 365; Williams v. Mowing Machine Co., 154 S. W. 366; Hansen v. Yturria, 48 S. W. 795; Thomas v. Hammond, 47 Tex. 42; Davis v. Sisk, 49 Tex. Civ. App. 193, 108 S. W. 472; Peel v. Giesen, 21 Tex. Civ. App. 334, 51 S. W. 44; Beach v. Nevins, 162 Fed. 129, 89 C. C. A. 129, 18 L. R. A. (N. S.) 289; Murdy v. Skyles, 101 Iowa, 549, 70 N. W. 714, 63 Am. St. Rep. 411; Calvert v. Nickles, 26 S. C. 304, 2 S. E. 116.

Tbe payment of $102.48 upon tbe debt evidenced by tbe cheek in goods and by tbe payment of bills due by Wood was just as effective as if that amount of money bad been paid. Tinsley v. Ryan, 9 Tex. 407; Robson v. Watts, 11 Tex. 767; Snowden v. Estelle (Sup.) 13 S. W. 970; Caldwell v. Dutton, 20 Tex. Civ. App. 371, 49 S. W. 723; Hamburg v. Wood, 66 Tex. 168, 18 S. W. 623. Tbe debt was discharged to that extent, and when plaintiff bought' tbe check (tbe evidence of tbe debt) after dishonor thereof, and with notice of equities against same, be acquired nothing more than tbe balance due on tbe debt; and bad be sued at once would have been entitled to judgment only for such balance. That being the case, Rabe could'not, by thereafter bringing a suit to recover tbe $102.48, add such amount to tbe debt bought oy "plaintiff. Tbe fact that Rabe brought tbe suit was to be considered with tbe other facts in determining whether tbe allegations of payment were true, or whether tbe debt was a mere offset; but, when 'it is decided from all tbe evidence that payment was made, tbe bringing of tbe suit and procurement of judgment could not increase tbe debt bought by plaintiff prior to the bringing of such suit. Tbe unauthorized recovery of said judgment could not restore tbe check to its original face value. Rabe had no cause of action against Wood for payments made upon a debt justly due Wood; but if Wood violated their contract and transferred tbe check to an innocent purchaser for value, and thereby compelled Rabe to again pay tbe $102.48, Rabe could have recovered bis dam-, ages by suit against Wood. Rah'e contended that be brought bis suit against Wood under tbe impression that the transfer of tbe check deprived him of bis right to assert that tbe same was partly paid. Tbe record does not disclose what be pleaded in tbe suit against Wood; but, regardless of what be pleaded, such suit did not affect tbe debt bought by plaintiff prior thereto, nor injure him in any way, as be bad - no equitable lien upon tbe lots levied upon by writ of attachment issued in said suit. We agree with tbe trial court that, if tbe $102.48 was an independent debt due Rabe by Wood, it would have to be pleaded as a set-off, and that, after it was merged into a judgment, tbe judgment itself should be pleaded instead of the original debt. But upon tbe theory that it was a payment, which we think is established, tbe court’s conclusion that plaintiff should recover tbe entire amount of tbe check cannot be sustained. • .

Rabe made no contention for bis right to pay tbe remainder due on tbe check as provided by tbe original contract. He tendered tbe balance to plaintiff and has kept bis tender good, and plaintiff is entitled to judgment for tbe money tendered into court.

Tbe judgment of tbe trial court is reformed so as to provide that as against -Rahe the plaintiff shall recover only tbe sum tendered into court, and that appellee Yett shall pay all costs of tbe trial court incurred by making Rabe a party thereto. In all other respects the judgment will be affirmed. Tbe costs of this appeal will be taxed against appellee Yett.

Judgment reformed and affirmed.


author: HALL, J.

text:
    BOSTICK v. HEARD.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 14, 1914.
    Rehearing Denied March 7, 1914.)
    1. Limitation of Actions (§§ 49, 106)—Run-ning of Statute — Notice of Cause of. Aobiok.
    When plaintiff received notice that the instrument bought by him of defendant, purporting to be a soldier’s additional script, based on-military services of B., was rejected as void by the federal General Land Office, on the ground that the records showed B. did not perform the services, the statute commenced to run against plaintiff’s cause of action for the money paid therefor, and its running was not suspended by his appeal from the decision of said office.
    [Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 266-272, 516; Dec. Dig. §§ 49, 106.]
    2. Limitation of Actions (§28)— Claim for Fraud.
    A claim on account of fraud and deceit in a sale is within Rev, St. 1911, art. 5687, subd. 4, prescribing a two-year limitation for ac-. tions for debt; the indebtedness not being evidenced by written contract.
    [Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 134, 135; Dec. Dig. § 28.]

      Appeal from Gaines County Court; W. R. Slaton, Judge.
    Action by A. C. Heard against F. A. Bos-tick. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Chas. Gibbs, of Midland, and Gustavus & Jackson, of Amarillo, for appellant. J. M. Caldwell, of Midland, for appellee.

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

   HALL, J.

This is an appeal from the county court of Gaines county, and the court’s findings of fact only which we adopt, as follows, sufficiently state the case: “In the above styled and numbered cause I find the following facts, to wit: (1) That on October 5, 1908, the defendant, F. A. Bostick, sold to A. C. Heard what purported to be a soldier’s additional script, the same purporting to be based upon military services of one Josiah Brewer. (2) That thereafter, on the 6th day of February, 1909, the plaintiff, A. G. Heard, made his application, No. 016441, for the east half of the southwest quarter of section 20, township 16 S., range 38 E. N. M. M., within the Roswell land district of New Mexico, which application was made to the United States Land Office at Roswell, N. M. (3) I further find that the same was sent to the General Land Office of the United States at Washington, and that the same was rejected by said department, and held void, and the register and receiver at. Roswell, N. M., was notified thereof on December 21, 1910, which notification was communicated to A. C. Heard by service had on the 30th day of December, 1910. (4) I further find that the reason for said rejection, as stated by the land office, was that the records of said department showed that the said Josiah Brewer did not perform the military services as alleged, and accordingly said assignment was not the proper basis for the right claimed, and that the rejection thereof on that ground was subject to the right of appeal. (5) I further find that thereafter appeal was perfected in due course as in such cases made and provided that on April 17, 1911, the said judgment rejecting said application for the reasons stated was- affirmed by the Department of the Interior after due hearing. (6) I further find that said A. C. Heard prosecuted his motion for rehearing on the departmental decision of April 17, 1911, and that on October 23, 1911, the said rehearing was denied, and that the decision denying said rehearing was promulgated by the Department of the /Interior, General Land Office at Washington, on December 28, 1911, and the said Heard notified in due course. (7) I- further find that the plaintiff herein filed his suit as appears from the .file mark on his original petition on April 25, 1913. (8) I further find that the said A. C. Heard paid the said F. A. Bostick the sum of $500 for the said script on October 5, 1908, and that nothing of value passed from the defendant to plaintiff upon the transfer of said script” The conclusions of law which we do not adopt are as follows: “From the above and foregoing facts I find the following conclusions of law: (1) That the plain tiff’s claim is not barréd by the •statute of limitations. (2) That the defendant is liable to the plaintiff upon his implied warranty that the script was valid. (3) That the plaintiff ought to recover from the defendant the sum of money.paid to him for said script, together with interest thereon from October 5, 1908, at 6 per cent, per an-num.”

In the case of Anding v. Perkins, 29 Tex. 348, the court charged the jury in effect that, if they believed from the testimony that the defendant sold to the plaintiff a (soldier’s) certificate which he knew to be fraudulent, he was liable to the plaintiff upon his warranty for the value of a genuine land certificate, and for vindictive damages for the fraud practiced upon him, that the plaintiff’s cause of action accrued when the certificate was declared by the proper authority to be fraudulent, and that, if the action was commenced within four years from that time, it was not barred by limitation. Willie, Justice, said: “The charge of the court in reference to the time when the statute of limitation begins to run, in cases like the present, was correct has already been settled by this court. In Ripley v. Withee, 27 Tex. 14, it was held that fraud, coupled with concealment from the plaintiff by defendant of the cause of action, would suspend the running of the statute, or entitle the plaintiff to an action upon the discovery of the fraud, or at such time as he might have done so by the use of reasonable diligence; that this rule applied when the subject-matter was the warranty of a forged land certificate; that the ordinary diligence was when the proper land officer had decided the certificate to be a forgery; that, although the vendor may have been ignorant of the forgery, there is, in the nature of the case, a concealment, and therefore a legal fraud. The exception to this charge of the court is therefore not well taken.”

In the case of Ripley v. Withee, cited in the quotation above, it is expressly held that the statute of limitation does not begin to run against the purchaser of a certificate for land purporting to be issued by the Republic of Texas to a soldier until by the use of ordinary and reasonable diligence he could have ascertained that there was such a breach; and it is further held that the action is one for a breach of warranty. It is further said in the opinion: “It may perhaps also be questioned, in view of the objects and purposes such certificates are issued to subserve, whether they do not partake sufficiently of the nature of realty for the covenant of warranty to run with them until they fail to serve the purpose of the genuine certificate, or the party can no longer acquire to hold title under them,” The certificate in ques--tton in tlie two eases from which, we have quoted, had been rejected by the commissioner of claims. That was a tribunal established for the purpose of passing upon the validity of .claims to land, and the presiding officer of that court was empowered, and it was made his duty, to take such steps as might be necessary to detect and refuse all fraudulent claims. The act establishing the court is found in 4 Gammel’s Laws of Texas, p. 432; section 6 of that act provides that, when a certificate has been rejected or refused by the commissioner, the holder thereof “shall have the right within twelve months from the time of such rejection, to bring suit in the district court of the county in which said certificate issued for the establishment' of the same, which suit shall be brought and conducted in the manner prescribed for the establishment of certificates not recommended, by the act of Eeb. 4, 1841, entitled ‘An act supplementary to an act to detect fraudulent land certificates and to provide for the issuing of patents to legal claimants.’ ” This provision, whereby the holder of a rejected certificate might, through the district court, have the action of the commissioner of claims reversed by the district court proceeding, was continued in the act of January 15, 1858. 4 Gammel’s Laws of Texas, pp. 914, 915, § 3. The act of February 4, 1841, referred to is found in 2 Gammel’s Laws of Texas, p. 635, and prescribes the particular procedure which the holder of the rejected certificate must resort to, and limits the time within which his action must be begun for the establishment of his certificate.

Notwithstanding the fact that the holder of such a claim had in effect the right of appeal from the decision of the commissioner, it appears that the Supreme Court has nevertheless held, in the two cases cited, that limitation began to run from the date when the commissioner first rejected the claim, and in effect that an appeal from him did not suspend the running of the statute.

Since the decisions in the above-cited cases, the statute of limitation, as it existed at that time (2 Gammel’s Laws of Texas, 627, and 3 Gammel’s Laws of Texas, 1006), has been amended by the enactment, among other provisions, of subdivision 4, art. 5687, R. S. 1911. This subdivision provides that limitation of two years shall bar “actions for debt, where the indebtedness is not evidenced by a contract in writing.”

The Supreme Court, in the case of Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S. W. 40, has held that this subdivision of article 5687 applies to actions for damages growing out of fraud and deceit. Howell v. Bank, 158 S. W. 574.

It follows from what has been said that the learned trial judge erred in rendering judgment against appellant. We think it is clear that appellee’s cause of action accrued on December 30, 1910, when, according to the court’s findings, appellee had notice of the. fact that the certificate which he had purchased from appellant was void. The authorities first above cited hold that limitations commenced to run on that date, and were not suspended by the appeal. Plaintiff’s cause of action, not having been filed until April 25, 1913, was barred by the two-year statute. The judgment of the lower court is therefore reversed and here rendered' for the appellant.

Reversed and rendered.


author: RASBURY, J.

text:
    ST. PAUL'S SANITARIUM v. WILLIAMSON.

    (Court of Civil Appeals of Texas. Dallas.
    Feb. 7, 1914.
    Rehearing Denied Feb. 28, 1914.)
    1. Charities (§ 45) — Hospitals—Liability for Negligence.
    Hospitals, organized to minister to all persons of all creeds, are liable for the negligence of their physicians and servants only when ordinary care has not been exercised in their selection and retention; and it is immaterial whether the patients injured were charity patients or paid the usual compensation for such services.
    [Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 80,-81, 102-104; Dec. Dig. § 45.]
    2. Charities (§ 45) — Actions—Evidence-Sufficiency.
    In a suit against a hospital, not operated for profit, for damages for injuries sustained by plaintiff’s wife, who, after an operation, was placed in a bed in which there was a water bottle so hot that it severely burned her, evidence held sufficient to support a finding that the hospital did not exercise ordinary care in the selection of its servants.
    [Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dec. Dig. § 45.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by D. C. Williamson against St. Paul’s Sanitarium. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wm. P. Ellison and Etheridge & McCormick, both of Dallas, for appellant. Jed C. Adams and C. F. Greenwood, both of Dallas, for appellee.

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

       Application for writ of error pending in Supreme Court.

   RASBURY, J.

Appellee sued appellant for damages for personal injuries sustained by his wife while a patient in appellant’s sanitarium, and upon trial by jury secured verdict, followed by judgment, from which this appeal is taken.

The grounds of negligence alleged were, in substance, that appellee’s wife was operated upon successfully for a minor affliction by a physician selected by appellee, after which she was consigned to the authorities and nurses in charge of appellant’s sanitarium, where appellee had engaged a room, with proper instructions as to the care to be used in nursing her, but that those in charge of the sanitarium, instead of observing such in-struetions, immediately after the operation took charge of appellee’s wife, who at the time was unconscious, due to the administration of anaesthetics, placed her in a bed containing a bottle of hot water in such manner that the bottle of hot water rested under the left leg of appellee’s wife, and negligently permitted same to remain there until the calf of the leg was almost entirely burned away, injuring the muscles and nerves of the leg, and affecting the bone, requiring a number of painful surgical operations, inducing subsequent blood poisoning, great suffering, and seriously and permanently injuring ap-pellee’s wife.

Appellant met the charge of negligence with the general denial and special plea that it was a private corporation organized under the laws of Texas wholly for benevolent and charitable purposes, and in pursuance of such purpose had erected and was maintaining in the city of Dallas a sanitarium wherein the members of the corporation were administering to the sick, infirm, and afflicted of all creeds and nations,' nursing and caring for them, and restoring them to health as far as possible, and was so engaged at the time ap-pellee’s wife received her injuries. It was further alleged that the corporation had no capital stock, and that its members received no profit from the operation of the corporation, but that, on the contrary, all moneys derived from all sources, whether from pay patients, donations, bequests, or otherwise, were devoted to benevolent and charitable purposes, and for that reason was not liable for injuries received by an inmate thereof, while receiving the benefits of the charity, etc.

The record sustains the following essential facts: Appellant is a private corporation organized under the laws of the state of Texas, with authority to acquire and hold such real and personal property that may be necessary and appropriate for carrying out the purpose of its organization. It has no capital stock, and its membership may consist only of Sisters of Charity of the Society of Emmettsburg, Md., all or any of. whom may be removed by their superiors. The purposes of the corporation are recited in the charter to be to build and maintain a hospital at Dallas, wherein to administer to the sick, infirm, and afflicted of all nations and creeds and to nurse and care for them and restore them to health, if possible. Such a hospital was built and was being maintained at Dallas at the time appellee’s wife received her injuries. The hospital received patients who paid for their rooms, care, and nursing and patients who did not. None were refused care and nursing. The only income of the corporation, so far as the record discloses, is from those who pay for the care and nursing to be had at the sanitarium, but this has been sufficient to meet the interest on an original loan and reduce same materially, and to pay all expenses of maintenance, which is heavy, and permit the spending of something on betterments and other allied charities as well. The property owned by the corporation is valuable and the institution a large one, but no part of its income is spent other than in benevolent and charitable projects. The institution employs about 75 people in various capacities, who %re paid. The institution also conducts a school for 'nurses. The Sisters of Charity connected with the institution, and who control and direct its affairs, receive only their food and clothing.

Appellee’s wife was ill with some trouble that required a minor operation, and at the suggestion of her physician, who had been engaged to perform the operation, appellee called at appellant’s sanitarium and made arrangements for a room to be occupied by his wife after the operation: The price demanded for the room selected by appellee was $20 per week, and for the use of which ap-pellee paid at that rate in addition to a charge of $5 for the use of the operating room. On the day appellee’s wife entered the sanitarium, she was successfully operated upon. After the operation the attending physician consigned appellee’s wife, who at the time was under the influence of amesthet-ics, to the care of Dr. Black, an interne, and Miss Suggs, a nurse, who placed her upon a stretcher and removed her from the operating room to the room engaged for her by her husband, the appellee. Just -before the interne and the nurse reached the room assigned to appellee’s wife, Pauline Nash, a girl about 12 or 14 years of age, and an employs of appellant, came into the room and placed a bottle of hot water beneath the bed covering and hastily left the room. At this time no one was in the room other than ap-pellee. Very shortly afterwards Dr. Black, the interne, and Miss Suggs, the nurse, who were in charge of appellee’s wife, entered the room with her in an unconscious condition and placed her in the bed beneath the coverings, and in a few minutes departed, leaving appellee alone with his wife. Very soon thereafter, however, Miss Pay, another employs of appellant, entered the room to attend appellee’s wife. About 20 minutes after she entered the body of the patient, and particularly the left leg, began twitching and jerking, which attracted the notice of appel-lee. While appellee and Miss Fay were regarding the patient to ascertain the trouble, she exclaimed, “Oh, my leg!” In a short time the patient again repeated the exclamation, whereupon appellee directed Miss Fay to examine and see if anything was wrong. She did so, placing her hand under the bed covers, jerking same out at once. She then raised the covers, seized the bottle of hot water, and jerked it out. The bottle was so hot Miss Fay could not retain it in her grasp. The evidence sustains the allegations of the petition in reference to the serious and permanent injury resulting to appellee’s leg by being burned by the bottle and the pain she suffered as a result therefrom, and a recital of the same is unnecessary. The evidence in the record shows that it is customary, usual, and proper to warm beds intended for occupancy by patients undergoing operations by placing a bottle of hot water therein; the purpose being to increase the lowered circulation of the patient due to the operation. It is not proper, usual, nor customary to place in the bed a bottle of water so hot that it will burn the flesh of the patient in case of contact. The water in the bottle placed in the bed occupied by appellee’s wife was that hot. If it is hot enough to burn the flesh, it is usual and customary for those in charge of the patient to either cover the bottle with clbths, remove same from the bed, or see that it does not come in contact with the patient. It is the duty of the nurses in charge of the patient to loot after the proper placing of the bottle of hot water and to protect the patient against injury by contact in case the water is too hot. Neither Miss Suggs, who had charge of appellee’s wife when she was placed in bed, nor Miss Eay, who took charge of her after being placed therein, were graduate nurses. They were pupil nurses, who are intrusted with such duties as the Sister, in charge of the floor to which they are assigned, think them capable of attending to. The girl, Pauline Nash, who placed the bottle of hot water in the bed to be occupied by appellee’s wife, was employed to wash dishes and run errands. Sister De Sales, a Sister of Charity, and a member of appellant corporation, had charge of the floor on which appellee’s wife had been assigned a room, as well as all the patients occupying rooms upon that floor.' Before removing appellee’s wife to her room, a request came from the operating room for a bottle of hot water to be placed in her bed; the request being made to Sister De Sales, who testified in reference thereto: “I gave a general order in the diet kitchen for some one tó do that, without speaking to any one in particular; * * * just told them to put a hot water bag in room No. 11, being too busy to do it myself.” Pauline Nash, who was employed in the diet kitchen, where the order was given by Sister De Sales, as we have stated, executed the order given by Sister De Sales. It was also in evidence in substance that Pauline Nash was permitted to place bottles of hot water in the beds of patients at the sanitarium, and that she was not competent for that pur-, pose. Appellee’s wife also testified that Pauline Nash confessed to her at her bedside, the day after she was injured, that she placed the bottle of hot water at the direction of the head nurse or head Sister. Drs. Tipton, Smoot, and Watson, all of whom had practiced in the sanitarium and had opportunity to observe Sister De Sales, gave it as their opinion that Sister De Sales was a competent nurse; also that it would be improper to place a bottle of water hot enough to burn the flesh so that it would come in contact with the patient. Nothing concerning the competency of Miss Suggs, Miss Eay, or Pauline Nash was proven by these physicians, or others.

Hon. Kenneth Eoree, the district judge before whom the ease was tried, instructed the jury that appellant was a charitable and benevolent institution as a matter of fact, and we think the evidence, without contradiction, supports the peremptory instruction.

In submitting the case to the jury, the court instructed them that if appellee’s wife’s injuries resulted from the failure of appellant to exercise ordinary care in the selection of its servants to find for appellee, but if appellant, on the contrary, did exercise ordinary care in' such selection to find for appellant. The jury was also instructed to find for appellant in the event appellee did not exercise ordinary care in the selection of a physician. The verdict of the jury was against the claim of negligence in the selection of a physician by appellee, and no complaint is made of the manner of submitting that issue.

Hence the case is here on assignments attacking the action of the court in submitting the case upon the issue of negligence of appellant in the selection of its servants; the contention being: Eirst, that, since appellant is an institution of charity, it is, as a matter of public policy, not liable to a beneficiary of that charity for the negligence of its nurses in any event; and, second, if liable at all, it is only liable for failure to exercise ordinary care in the selection and retention of such nurses, and that the evidence in the instant case was insufficient to authorize the submission of the case on that theory. Counsel on both sides, on submission of the case, favored us with able oral arguments, and in their briefs on file have spared no effort in the citation of authorities, our appreciation of which it is proper to acknowledge.

Much has been written relating to the liability of incorporated and other charitable institutions for the negligence of their servants, and much space and considerable rivalry in the many able opinions written upon the subject has been given to the reason why such institutions do not in all cases come within the rule of respondeat superior, and, while many of the cases reach the same result, they do so by dissimilar reasoning. There is a line of well-considered cases which sustain the doctrine that such institutions may be made to answer in damages for injuries inflicted upon employes and third parties by the negligence of the corporation or institution, their managers, vice principals, or agents. Armendarez v. Hotel Dieu, 145 S. W. 1030; Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. (N. S.) 1144; Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 32 L. R. A. (N. S.) 62, 139 Am. St. Rep. 889; Hewett v. Woman’s Hospital Aid Ass'n, 73 N. H. 556, 64 Atl. 190, 7 L. R. A. (N. S.) 496; Bruce v. Central Methodist E. C., 147 Mich. 230, 110 N. W. 951, 10 L. R. A. (N. S.) 74, 11 Ann. Cas. 150. The holding in the case last cited seems, however, to be a departure from the rule announced by the same court in Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427.

There is another line of equally well-considered cases which in effect announce the rule that such institutions are, as a matter of public policy, exempt from all liability to either employes or third persons due to the negligence of their physicians, nurses, and servants; some of the cases being quite similar in the facts with the instant case. Downes v. Harper Hospital, 101 Mich. 555, 60 N. W. 42, 25 L. R. A. 602, 45 Am. St. Rep. 427; Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087, 136 Am. St. Rep. 879; Duncan v. Nebraska Sanitarium, 92 Neb. 162, 137 N. W. 1120, 41 L. R. A. (N. S.) 973, Ann. Cas. 1913E, 1127; Jensen v. Maine E. & E. Infirmary, 107 Me. 408, 78, Atl. 898, 33 L. R. A. (N. S.) 141; Taylor v. Protestant Hospital Ass’n, 85 Ohio St. 90, 96 N. E. 1089, 39 L. R. A. (N. S.) 427; Adams v. University Hospital, 122 Mo. App. 675, 99 S. W. 453; Powers v. Mass. Homeopathic Hospital (C. C.) 101 Fed. 896; s. c., 109 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372. The court, in the case last cited, calls attention to the fact that it is not called upon to decide what would have been the liability of defendant upon allegation and proof of incompetency of the servant and knowledge of that fact on the part of the defendant.

It was formerly the rule in Rhode Island that charitable institutions were not only liable for their negligence in failing to select competent physicians and nurses, but were liable for the negligence of regularly employed physicians and nurses, charged with certain fixed duties, on the ground that such employés were the agents of the institution. Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675. This doctrine was sustained and defended in Basabo v. Salvation Army, 35 R. I. 22, 85 Atl. 120, 42 L. R. A. (N. S.) 1144, although the negligence was that of a driver of a wagon being used by the Salvation Army in the delivery of food and clothing to the needy, sick, and suffering; the injuries being inflicted upon a third person. The rule, however, no longer prevails in that state. By legislative act such institutions were exempted from’ liability for the negligence of its servants. R. I. Gen. Laws 1896, c. 177, § 38; note 6 Oyc. 975.

There is yet another line of cases that do not concede entire exemption from the rule of respondeat superior, nor- yet bring such institutions entirely within the rule, but hold to the rule that charitable institutions, such as appellant, in respect to the negligence of physicians, nurses, and servants, who are said not to be the agents of the institution, are liable only when it appears from all the facts and circumstances that the institution failed to exercise ordinary care in the selection and retention of such employés, and that in the application of the rule it is immaterial whether the patient upon whom the injury was inflicted be a beneficiary of the charity of the institution or one who is paying full consideration for his or her care and nursing. G., H. & S. A. Ry. Co. v. Hanway, 57 S. W. 695; Hanway v. G., H. & S. A. Ry. Co., 94 Tex. 76, 58 S. W. 724; Texas Central R. R. Co. v. Zumwalt, 103 Tex. 603, 132 S. W. 113, 30 L. R. A. (N. S.) 1206; Arkansas Midland R. Co. v. Pearson, 98 Ark. 399, 135 S. W. 917, 34 L. R. A. (N. S.) 317; McDonald v. Mass. Genl. Hospital, 120 Mass. 432, 21 Am. Rep. 529; Union Pacific R. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581; Hearns v. Waterbury Hospital, 66 Conn. 98, 33 Atl. 595, 31 L. R. A. 224.

An accepted authority tersely states the rule to be that “a charitable corporation is not liable for injuries resulting from the negligent or tortious acts of a servant in the course of his employment, where such corporation has exercised due care in his selection.” 6 Oyc. 975.

It will be seen from the cases cited from this state that the rule here is that such institutions, with respect to patients within their walls or under their care, whether the patient be one on charity or one who pays, are liable for the negligence of their physicians, nurses, and servants only when it appears that ordinary care has not been exercised in their, selection and retention; and that, with respect to injuries inflicted upon third persons and employés by the negligence of their managers, agents, and servants in the conduct of the institution, they come entirely within the rule of respondeat superior. Such being the rule in this state, and the court having submitted correct instructions to the jury, our duty narrows to an examination and analysis of the testimony for the purpose of ascertaining whether same supports the finding of the jury that appellant failed to exercise ordinary care in the selection and retention of those employés charged with the duty of caring for' appellee’s wife and in directing others to do so. We think it does.

According to the testimony of all the witnesses who possessed any knowledge on the subject, while it was necessary and usual to place the bottle of hot water in the bed, it was attended with more or less possible injury to the patient, if managed improperly. From which it follows that it was the duty of those directing the placing of the bottle to have selected no person to perform that task not competent to anticipate injury to the patient by reason of the water being too hot. Pauline Nash, selected to perform the duty, was not only not competent but wholly inexperienced, and we think her selection by Sister De Sales, a member of tbe corporation, to perform tbe task is alone sufficient to sustain tbe finding of tbe jury. It may be argued that Sister De Sales did not select Pauline Nasb. This Sister testified that she was too busy to do it herself and gave a general order in tbe diet kitchen, where Pauline was employed to wash dishes and run errands, for some one to perform tbe task, but did not know who really performed tbe work. Conceding that all that was done was to give tbe general order, such a method of selecting a servant to do such work can hardly be said to be tbe exercise of ordinary care. Again, tbe preponderance of tbe testimony is that Pauline Nash did place tbe bottle in tbe bed, which supports and corroborates tbe testimony of Miss Mc-Kaig, a nurse, and appellee’s wife, that it was customary for those in charge of tbe institution to assign Pauline to such duties. If tbe jury believed such to be tbe custom, that fact would support tbe finding that ordinary care was not observed in tbe selection and retention of appellant’s servants. Again, it is in evidence that Miss Suggs, who placed appel-lee’s wife in bed after tbe operation, made no examination of tbe bed to ascertain whether tbe bottle of hot water was in a safe position, notwithstanding it • was shown that it was tbe duty of nurses to take such precaution. It also appears that Miss Suggs was not a graduate but a pupil nurse, upon whom, according to Sister De Sales, only such responsibility should be placed as their capabilities suggest, to be determined by tbe one in charge of tbe patient, who ip this instance was Sister De Sales herself, since it is undisputed that this Sister was in charge of tbe floor upon which appellee engaged tbe room for bis wife, and all patients as well.

Tbe facts just recited, it occurs to us, would also sustain tbe finding of tbe jury that ordinary care was not exercised in tbe selection and retention of appellant’s servants. It is further in evidence that Miss Eay, who took charge of appellee’s wife after Miss Suggs had placed her in bed, made no examination of the bed or tbe bottle of hot water to ascertain if tbe patient was in a safe position and free from possible contact with tbe bottle of hot water. Fifteen or twenty minutes after she had been in tbe room, she looked beneath tbe bed coverings and discovered tbe bottle of hot water, and then only because directed to do so by appellee, who observed bis wife’s body twitching and jerking and beard her moaning in pain. Miss Fay was also not a graduate, but a pupil nurse, who, like Miss Suggs, was under tbe direction of Sister De Sales. These facts also, it occurs to us, are sufficient to sustain tbe finding of tbe jury that ordinary care bad not been observed in tbe selection of its servants. Accordingly, and on tbe whole case, we conclude that the record does not present a case where we can say that tbe evidence is insufficient to sustain the finding of tbe jury on tbe only issue presented by tbe court, and that being true, and tbe rule of liability being as we have said, all other questions become immaterial, and tbe judgment must be affirmed.

Affirmed.