text:
    HUGHES et al. v. BURTON LUMBER CORP.
    (No. 7565.)

    (Court of Civil Appeals of Texas. Dallas.
    June 17, 1916.
    Rehearing Denied Oct. 14, 1916.)
    1. Vendor and Purchaser <@=j99 — Executory Contract — Forfeiture — Death of One Vendee.
    Where only a small part of the purchase price was paid on a contract of sale reserving vendor’s lien, the sale was executory, whether or not a deed had been executed and delivered to vendees, and the right of the vendor to rescind the contract and recover back the property was not destroyed by death of one of the vendees.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 167-169; Dec. Dig. <@=>99.]
    2. Vendor and Purchaser <®=3l01 — Rescission — Community Interest — Notice to Survivor.
    Where a man and his wife, having no children acquired a community interest by part payment on a land contract, the notice required of vendor’s intention to rescind, after the husband’s death, could legally be given to his widow, as survivor of the community.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 170-174; Dec. Dig. <@=3l01.]
    3. Vendor and Purchaser <@=3296 — Execu-tory Contract — Recovery Back of Land —Waiver.
    Where the vendor has done nothing to waive his right, he may in every case of an executory sale of land, where the vendee defaults in payment of the purchase money, maintain a suit for the recovery back of land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 832; Dee. Dig. <¿=» 296.]
    4. Vendor and Purchaser ®=»299(1) — Ex-ecutory Contract — Nonpayment—Forfeiture.
    Payment by a vendee before he died of only a small portion of the purchase price on a land contract, possession thereafter by his widow, and the fact that by indulgence of vendor a small portion of the purchase money note falling due was not promptly paid at maturity, and that the land had enhanced in value since the contract was made, were not sufficient to prevent the vendor’s recovery of the land, and would not entitle vendees to defeat vendor’s recovery of the land by paying or actually tendering the balance of the purchase price, several years after the date of the contract.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 837, 839, 840; Dec. Dig. <§=v>299(l).]
    Appeal from District Court, Dallas County;' E. B. Muse, Judge. i
    Action by the Burton Lumber Corporation against Mrs. Susie Hughes and others. Prom judgment for plaintiff, defendants appeal.
    Affirmed.
    W. T. Strange, of Dallas, and E. G. Senter, of Waco, for appellants. Spence & Haven, of Dallas, for appellee.

      Application for writ of error pending in Supreme Court.

   TALBOT, J.

This is an action in the ordinary form of trespass to try title, brought by the appellee against the appellant Mrs. Susie Hughes, formerly Mrs. Stahl, to recover certain described property situated in the city of Dallas, Tex. It appears that in the latter part of 1904, or the first of the year 1905, Louis Stahl, who was then the husband of appellant, entered the employment of the appellee as its bookkeeper in the city of Dallas, Tex., and continued as such until about November 30, 1907. In 1906 the appellee, Burton Lumber Corporation, was compelled to move that portion of its lumber yard which was located on property belonging to the Texas & Pacific Railway Company, and at that time bought some eight lots about a block in front of its then location. The lots purchased had a number of houses on them, and all of these houses were sold by the company, except two. At this time appellee bought another lot in the city of Dallas, approximately one-half of which is involved in this suit, as a place on which to put the said two houses .which had not been sold. Appellee then employed a contractor to move the said two houses, and had him place one of them, a two-story house of about six or seven rooms, on the lot in controversy and to repair the same. The lot cost $500, the house cost $400, and it cost $1,377.37 to move the house upon the lot, and to make the necessary repairs, thereby making the house and lot cost the sum of $2,277.37'. Louis Stahl wanted to purchase this house and lot from appellee at and for the said sum of $2,277.37, and entered into an agreement with appellee to that effect. At the time this agreement was entered into Louis Stahl had to his1 credit with appellee $358.07. This amount was deducted from the $2,277.37, and Stahl executed and delivered to appellee five notes of $383.86 each, for the remaining unpaid purchase money of the land aggregating $1,919.30. Each of these notes was dated October 9, 1906, payable, respectively, in one, two, three, four, and five years, bore interest at the rate of 7 per cent, per annum, provided for the payment of 10 per cent, thereof as attorney’s fees, if placed in the hands of an attorney for collection or collected by suit, and expressly reserved the vendor’s lien on the land to secure its payment. Each of said notes stipulated that the failure to pay the same or any installment of interest thereon when due matured all or any one of them, at the election of the holder. A deed of trust also was executed by Stahl (at the date of said notes) to S. P. Darnell as trustee. At the time of the execution and delivery of the notes and deed of trust by Stahl a deed from the appellee to him reserving the vendor’s lien on the property was drawn up, but whether this deed was ever delivered to Stahl was in dispute and was undetermined in the trial in the district court. At the time Stahl purchased the house and lot and probably before the execution and delivery of the purchase-money notes, he and his wife moved into the house and occupied the premises as their homestead. On December 26, 1906, Stahl paid $300 on his notes, which was sufficient to pay the interest on the first note maturing up to the date of its maturity, which was October 9, 1907, and $165 of the principal of said note. . Soon after this payment and in 1907 Stahl became sick, and his sickness was of such a serious nature that he was forced to take a leave of absence from his duties as bookkeeper for the Burton Lumber Corporation and spend some two weeks at Mineral Wells in an effort to regain his health. He also took treatment at a local sanitarium in Dallas. The treatments which he received did not arrest the malady from which he was suffering, and he died March 30, 1908. During all this time he and the appellant Mrs. Hughes were occupying the property in controversy. Prom December 1, 1907, until April 25, 1908, the Burton Lumber Corporation paid to the appellant, then Mrs. Susie Stahl, different sums of money in cash, also paid telephone bills, water rent, etc., due at the Stahl homestead, paid sanitarium bills for treatment administered to Louis Stahl, and* paid the burial expenses when Louis Stahl died — all of which amounted to the sum of $507.66. At Stahl’s death the ap-pellee had possession of the notes and deed of trust executed by him, and there was among them a deed from the company to Stahl not executed. The witnesses for the company claimed on the trial that this was the only deed ever drawn, and those of the appellant claimed that another was drawn and executed and delivered and a copy made for the company to keep. On this issue the jury failed to agree. On or about May 1, 1908, appellee demanded of Mrs. Stahl payment of the account and the remainder due on all the vendor’s lien notes. When this demand was1 made she stated to appellee’s representative that she could not pay anything on the notes or on the account, and refused to do so. She continued to occupy the house from the date of Louis Stahl’s death, and in August, 1908, the appellee, Burton Lumber Corporation, instituted this suit and had a writ of sequestration issued, and took the property into its possession. It seems the papers were lost, and the case remained on the docket without any proceedings being had until about May 20,1915, when both parties filed amended and supplemental pleadings on which they went to trial. The nature of the suit was not changed by appellee’s amended petition, but remained a suit to recover the property. Defendant’s pleadings consisted of a general denial, plea of not •guilty, and plea in reconvention or cross-action for damages for wrongful suing out of the writ of sequestration; Mrs. Hughes alleging that same was sued out wrongfully and maliciously. The cross-action further sets up that in case plaintiff claimed' the right to repossess itself of said premises by reason of the failure to pay the purchase money, that the defendant Mrs. Hughes and husband paid several hundred dollars on the purchase price; that the value of the premises' had greatly increased, and that they, the defendants, offered to pay whatever was still due on said premises. They then set up the rental value of the premises since they were sequestered, and her other damages, and offered to offset whatever was due on the purchase price, and prayed for judgment for the difference, and further prayed that if the plaintiff had any relief, it be confined to a foreclosure of its lien for the purchase price. The supplemental petition of plaintiff consisted of denials of the pleadings of the defendants, and asserted the institution of the suit and the sequestration proceedings as a proper exercise of its right to rescind the contract of sale on account of the failure to pay the purchase price. By this supplemental petition the appellee also tendered into court for cancellation the five vendor’s lien notes1 given for the land. The case was submitted to the jury on special issues, and upon their findings judgment was rendered in favor' of ap-pellee for the title and possession of the property sued for, and the case is now before this court on appeal.

In response to the special issues submitted to them, the jury found the following facts: That Louis Stahl agreed to purchase the property in question after same had been put in satisfactory repair, and pay therefor the sum of $2,277.37, as follows: $358.07 paid by bonus and returned merchandise, and the balance of $1,919.30 to be paid by five vendor’s'lien notes of $383.86 each. That there was only one payment made on said notes, and that was from the bonus of $300 received by Louis Stahl from Burton Lumber Corporation on December 26, 1906, and that each payment was applied as follows: $165.65 on the principal of note No. 1, and $134.35 applied on interest. That the purchase money which Stahl was to pay to Burton Lumber Corporation for the property in controversy at the date Stahl died, March 30, 1908, was not paid, and that Stahl w.as in default in the payment of' such purchase money, and that there was due at the date of Louis Stahl’s death, the sum of $218.22 on note No. 1 and interest on the notes from October 9, 1907, to March 30, 1908. That Stahl’s monthly salary from the Burton Lumber Corporation was $70 per month. That the Burton Lumber Corporation, prior to the commencement of this suit, demanded of the appellant Mrs. Susie Stahl (now Mrs. Susie Hughes) that she pay the purchase money for the property in question, then past due, or that she surrender the property. That Mrs. Susie Stahl (now Mrs. Susie Hughes) did not tender to Burton Lumber Corporation the performance of the agreement between Burton Lumber Corporation and Louis Stahl with regard to the conveyance by the corporation to Stahl of the property in controversy. That at the time of the bringing of this suit on August 3, 1908, there was due to the Burton Lumber Corporation the sum of $1,753.65, with interest from October 9, 1907, to August 3, 1908, from Louis Stahl as purchase money for the property in controversy.

The appellant presents several assignments of error, but it is unnecessary to state and discuss them separately. The appellant contends, in substance, which discloses the question or questions raised for adjudication, that the trial court erred in rendering judgment in favor of the appellee for the property in controversy in the absence of a finding by the jury as to whether or not deed was executed and delivered by appellee to Louis Stahl, for the reason that if such deed was executed and delivered, then, since the jury found that Stahl had paid $500 on the purchase price of said property and went into possession of the same appellee was not entitled to recover the property without paying or offering to pay back said sum, and for the further reason that if the right to rescind the sale before the death of the said Stahl existed, his death destroyed such right, and appellee could not thereafter rescind except through a court proceeding; that the court erred in rendering judgment in favor of appellee, because, even if no deed were executed and delivered to Stahl, the finding of the jury and undisputed .evidence showed that there was at least a contract of sale, after which the purchaser Stahl went into possession and paid part of the purchase money; that the only note that was due at the date of the institution of this suit became due October 9, 1907; that thereafter the ap-pellee received a $300 cash payment thereon about December 26, 1907, and continued until the death of Stahl on March 30, 1908, to treat the contract of sale as in force regardless of the maturity of said note, and that if appellee demanded possession before the institution of this suit, such demand was only in the alternative that if Mrs1. Stahl could not pay the notes or rent she give possession; that thereafter appellee retained possession of said notes and treated them as continuing and never, until May ■ 20, 1915, made any offer to return them; that in the bill rendered to Mrs. Stahl at the time it is claimed the demand for possession was made the entire amount of the original notes was demanded; that, before appellee ever asked in its pleadings for rescission by reason of failure to pay the purchase price, appellants filed their' amended answer showing that it would be inequitable to allow a rescission, and asking that appellee be compelled to seek a foreclosure instead, and offering to pay any amount still due on said notes.

We are of opinion that an answer by the jury of the question whether or not the appellee executed and delivered to Louis Stahl a deed to the property in controversy was not essential to the rendition of a proper judgment in the case. The findings, without an answer to that question, were sufficient for that purpose, and support the judgment that was rendered. The undisputed evidence shows that Stahl paid a very small part of the purchase price cash, and executed and delivered to appellee the five notes offered in evidence for the balance; that the vendor’s lien was reserved to secure the payment of said notes, and that said notes, with the exception of about $300, had not been paid. The sale was therefore executory whether the deed was executed or not, and a finding either way upon that question would have been immaterial in determining the right of appellee to recover the title and possession of the property. Nor do we think the death of Louis Stahl destroyed the right of appellee to rescind the contract and recover back the property. The interest that Stahl and his wife, Mrs. Susie Stahl, acquired in the property by the purchase from appellee was a community interest, and the notice required of appellee’s intention to rescind could properly and legally be given to Mrs. Stahl, the survivor of the community. It is not believed that the eases cited by appellant are in point and decisive of the question. On the other hand, we think the case of Herman v. Gieseke, 33 S. W. 1006, cited by appellee, very clearly illustrates the principle involved and sustains our conclusion. We quote from the syllabus of that case the following:

“The terms of a contract for the sale of land are not changed by the death-of the purchaser, leaving heirs who are minors or under cov-erture, while they are not bound by the contract, if they seek to enforce it they can only do so in accordance with its terms.”

The rule announced in the quotation applies with stronger reason in a case, like the present, where the wife, whose rights under the contract are those of a surviving partner of her deceased husband, and there were no children.

The evidence is sufficient to show that ap-pellee, before the institution of this suit, gave to Mrs. Stahl notice of its intention to rescind. The language used to express such intention was not as specific as it might have been, but sufficient to apprise her that such was its purpose, unless the balance of the unpaid purchase money was paid.

But the chief contention of appellants, as we gather from their counsel’s brief, is that forfeitures are not favored any more in executory contracts for the sale of land than in any other transaction, and that whenever any vendor files a suit to rescind by reason of a vendee in possession failing to pay a balance on the purchase price, part having been paid, and the vendee sets up the fact of the possession and part payment, and asks the court to require him to foreclose his lien instead for the amount due, equity will deny the rescission and require him to take judgment for his money with foreclosure. This appellants assert to be the law of this state, and insist that it should be applied under the facts shown in the instant case. That it may be argued from some of the adjudicated cases in this state with much force that the proposition contended for by appellants is a correct one must be conceded, but upon an examination of the eases apparently announcing such a doctrine, it will be discovered that in all of them the vendor had done something to waive his right to rescind and recover the land. In Moore v. Giesecke, 76 Tex. 543, 13 S. W. 290, Mr. Justice Henry reviewed practically all the cases that had been decided up to that time involving the question, and after stating that he could see no good reason why the right of the vendee to equitable relief, when he is sued for the land, should at all depend upon the character or form of the plaintiff’s suit, and that whether or not he is entitled to any equitable relief will be a proper subject of inquiry in every case, and that when the circumstances of the transaction show him to deserve it, it should be administered, and when they do not it should be denied, said:

“The rule has been repeatedly and distinctly asserted, and is left by this decision in unimpaired force, that where the vendor has done nothing to waive that right he may in every ease of an executory sale of land where the vendee makes default in payment of the purchase money maintain a suit for the recovery back of the land.”

In further enunciation of the rule that governs in such cases Judge Henry used the following language:

“We repeat what has already been said when we say that when the vendor’s suit is predicated upon the mere refusal of the vendee to pay the whole consideration contracted for, the facts that the vendee has paid part of the consideration and made valuable improvements, coupled with possession of the property, unaided by some other sufficient equity, will not entitle him to recover for such purchase money or improvements. In such eases, when the vendor has neither waived his legal rights nor committed any default, he cannot be involuntarily taxed with improvements made upon the property without his consent, or be made to pay a price for recovering it back.”

The rule here announced has been followed, we believe, since the opinion declaring it was handed down, and is now the well-established law of this state. So recognizing it, this court, in Crain et al. v. National Life Ins. Co., 56 Tex. Civ. App. 406, 120 S. W. 1098, said:

■ “Where the vendor, or those claiming under him, has done nothing to waive the right, he may in every case of an executory sale of land, * * * when the vendee makes default in payment of the purchase money, maintain a suit for the recovery of the land.”

We can see no good reason for holding that this general rule is not applicable in the present case. The evidence, in our opinion, fails to disclose any such waiver, or act done by the appellee amounting to such af-firmance of the contract of sale, as would estop it from asserting and enforcing its superior title to the property in controversy. The payment by Stahl of the small amount of purchase money shown, and possession of the land and the probable enchanced value thereof since his purchase, unaided by some other sufficient equity, would not be sufficient either in law or equity. Neither would the fact that a small portion of the first purchase money note falling due, by the indulgence of appellee, was not promptly paid at the maturity of said note. Moore v. Giesecke, supra; Crain et al. v. National Life Ins. Co. supra. Appellants are in no position under the evidence adduced and findings of the jury to invoke in this court the rule that justice and equity demand that the harsh and rigorous remedy of rescission of the contract and recovery of the land should no't be allowed when the vendor has been paid a large part of the purchase money and the vendee is ready, willing, and able to pay off the remaining indebtedness. The evidence shows no such equities that call for the enforcement of this equitable principle. It shows without contradiction that the only payments made by Stahl on the purchase price of the land were the $358.07 cash at the time of the purchase, and the $300 about December 26, 1907. Mrs. Stahl has paid nothing, and it seems that she was insolvent at the date of the trial. Appellee brought this suit to recover the land August 3, 1908, about four months after Stahl’s death, and the original answer of appellant Mrs. Stahl was filed September 12, 1908. In this answer of appellant she made no tender of the purchase money due, and did not offer to carry out the contract of sale. Not until the filing of the amended answer on the 20th day of May, 1915, nearly seven years after the institution of the suit, did she make any tender whatever or offer to carry out the contract of purchase. The tender made in the answer filed May 20, 1915, is in the following language:

“These defendants are ready and offer to pay whatever amount, if any is now due to plaintiff on said premises on said purchase price for the same.”

There was no allegation that she was able to pay the balance of the purchase money. On the contrary, she alleged in her said answer filed May 20, 1915, that at the time she was ejected from the premises in controversy by the writ of sequestration, “she was wholly and totally without means.” The sale was clearly an executory one, only a small portion of the purchase money was paid, and the appellee having done no act that could fairly be construed into an af-firmance of the contract, and the facts and circumstances in evidence being insufficient to show that it would be unequitable for appellee to recover the property sued for, appellants could only defeat such recovery by paying or actually tendering the balance of the purchase price represented by the notes given therefor.

The appellants further contend that the court erred in rendering judgment in favor of appellee for the reason that the findings of the jury to the effect that the affidavit for the sequestration sued out was true, and that appellant Mrs. Hughes was not entitled to damages on account thereof, were unsupported by the evidence, inconsistent with their failure to find whether or not a deed had been executed and delivered to Stahl for the property in controversy, and therefore such findings should have been disregarded. This contention we regard as being without merit, and will be overruled.

In stating the nature and result of the suit appellants call our attention to the fact that no specific disposition was made of their cross-action for damages, but such omission is neither assigned nor argued as a reason for reversing the case. It may be said, however, that it has been held by our Supreme Court, and by some of our Courts of Civil Appeals, “that while the judgment of the trial court, in so failing to dispose of such an action, is irregular and imperfect in form, yet it is sufficient to support the appeal,” and furnishes no sufficient ground’ for a reversal. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161; Crain v. National Life Ins. Co., supra; Lewis v. Smith, 43 S. W. 294; Bemus v. Donigan, 18 Tex. Civ. App. 125, 43 S. W. 1052; Parker v. Emerson, 176 S. W. 146.

Finding no reversible error in the record, the judgment is affirmed.
      <@=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    FARMERS’ & CITIZENS’ SAV. BANK v. SMITH et al.
    (No. 610.)
    (Court of Civil Appeals of Texas. El Paso.
    Oct. 19, 1916.)
    1. Justices op the Peace <&wkey;90 — Pleading— INFORMALITY.
    In justice court cases, great informality of pleading is permissible.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. &wkey;?90.]
    2. Bills and Notes <&wkey;475 — Pleading—Non Est Factum.
    In suit on a note, a plea of non est factum is inapplicable where defendants admit signing the instrument, and there is no evidence of any alteration after execution.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1514-1518, 1556; Dec. Dig. <®tm475.]
    3. Bills ahd Notes <&wkey;489(3) — Issues and Pitoox — Parol Evidence.
    In suit on a note, where, in addition to defendants’ plea of non est factum, the answer stated facts sufficient to show that defendants had been overreached and defrauded into signing the note, for a larger sum than agreed, and that for all above the sum of $125, and interest, the note was wanting in consideration, parol evidence in support of such allegations was admissible.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1590-1595; Dec. Dig. <&wkey;> 489(3).]
    4. Witnesses <&wkey;414(l) — Corroboration — Passbook.
    In suit on a note for $150, defendants’ claim that one of them had borrowed only $125 from plaintiff bank, the passbook given by the bank to defendant borrower when the loan was made showing a deposit of that date of $125, and subsequent withdrawals aggregating a like amount, was admissible in corroboration of defendants’’ testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1287; Dec. Dig. &wkey;414(l).]
    5. Bills and Notes <&wkey;520 — Fraud—Sufficiency of Evidence.
    In a bank’s suit on a note for $150, wherein defendants claimed that they had been overreached and defrauded, when one of them borrowed $125, into signing the note for an excessive amount, evidence held sufficient to support judgment for defendants.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. &wkey;>520.]
    Appeal from Anderson County Court; E. V. Swift, Judge.
    Suit by the Farmers’ & Citizens’ Savings Bank against Felix Smith and another. From a judgment for defendants, plaintiff appeals.
    Judgment affirmed.
    S. J. Williamson, of Palestine, for appellant. Kay & Seagler, of Palestine, for ap-pellees.
   HIGGINS, J.

Appellant filed this suit in the justice court against Felix Smith and George Ware to recover a balance alleged to be due upon a promissory note, executed and delivered by defendants to plaintiff in the principal sum of $165.50, with interest, and to foreclose a chattel mortgage securing its payment. In the justice court, judgment was rendered in appellant’s favor, and the cause was appealed to the county court. In the latter court, the defendants filed a written plea, duly verified by their oaths, as follows:

“Further answering herein, and by way of plea of non est factum and in answer to plaintiffs, says that the note or instrument in writing mentioned in said petition was not signed or executed by them nor by any person authorized by them to sign or execute it for them, that said instrument of writing was made without defendant’s knowledge or consent, and that they have not at any time since ratified or confirmed the same. Wherefore defendants say that said note or instrument in writing is not their act' and deed, and of this they put themselves upon the country.
“Defendants, further answering herein, say that on or about the 1st of March, 1912, these defendants borrowed from plaintiff the sum of $125, and at that time plaintiff gave to the defendants a book showing the amount, and that after said time, to wit, on or about the 28th day of September, 1912, defendants paid back to plaintiff said sum of $125. That after that time plaintiff claimed that the defendant had not paid the interest on said $125 and said that it was $12.50, defendants say that they did not have the money at that time and when they obtained the money some time thereafter, plaintiff claimed that it was $13 and the defendants paid said sum of $13 on or about the 15th day of February, 1913, to H. L. Price for plaintiff.
“Defendants further say that many months after the above-named date, plaintiff demanded of defendants the payment of $30.50 more and claimed to have a note against these defendants for the sum of $165.50. Defendants say that they never at any time executed to plaintiff a note for the sum of $165.50, but that at the time of the borrowing the money as aforesaid, these defendants, Smith and Ware, being unable to read or write, and plaintiff demanding that they execute a note and mortgage, asked plaintiff to make out said instruments for the sum of $125, and after plaintiff made out said note and mortgage, these defendants signed said instruments, defendant Ware making his cross marks, believing at the time that they were signing a note and a mortgage for the sum of $125, and no more, and if they signed any other instrument for any greater amount than $125, it was done without their knowledge. Wherefore defendants say that they are not indebted to plaintiff in any sum, and that whatever sum that they owed to plaintiff has been fully paid off and discharged, and they ask judgment of the court that plaintiff take nothing by this suit and that they have judgment for their costs,” etc.

Judgment in the county court was rendered in favor of the defendants, and plaintiff prosecutes this appeal.

The defendant Smith testified- that he went to the plaintiff bank and asked the cashier thereof, H. L. Price, for a loan of $125. That he asked for only $125 and got only that amount. Told Price to make the note for $125, and intended that it should be made for that amount, and thought, at the time he signed it, it was for such an amount and would not have signed it if he had known that it was for more than $125. He stated that he could read and write a little, but did not read the note and no one read it to him. Price stuck the note through the window at the bank, and he signed it. He did not have the note in his hands. He had asked his half-brother, George Ware, his co-defendant, to go on his note for $125, and he was present when he told Price that he only wanted $125, and was present when he signed it, and his brother’ Ware then signed the note by his mark. That fall, he states, he brought two bales of cotton to town and went to the bank and paid them $125 on September 28th. About a month thereafter he met Price on the street, who asked him, “What about the interest on that note?” which he stated was $12.50; and thereafter, in February, Price again spoke to him about the interest, and he paid the bank through Price, $13 to cover the interest. That he did not know they claimed any m'ore until the following fall in the year 1913, when he was in town with some cotton, met Price, and Price claimed he still owed some on the note.

Upon cross-examination he stated that he had the note and mortgage in his hand when he signed same, but did not read them; that he had a chance to read the same if he had wanted to, but he could not read very well and did not try to do so. He did not ask Price to read them for him, but just signed them and handed them back. He did not know whether the note and mortgage were made for $165 at the time he signed them or not. He did not notice to see. He does not know whether they have been in any wise changed since he signed them.

Defendant Ware testified substantially as follows: That he was with Felix Smith when he signed the note. He came to the bank with Felix with the understanding that he was to sign the note with him for $125. Felix said he wanted' only $125, and asked Price for $125, and told him to make the note for that amount. He thought at the time he signed the note that it was drawn for $125, and would not have signed it if he had known that it was drawn for more than that amount. Witness signed by his mark. Neither the note or mortgage was read. He heard Felix tell Price to make the note for $125. That is the note he agreed to sign and would not have signed a note for $150.

Price, the cashier of appellant bank, testified that on March 1st, the defendants came to the bank to borrow some money, and that the bank loaned $150 and took their note, secured by mortgage for $165.50, $150 being principal, and $15.50 covering interest. After they signed the note, he offered Felix $150, but Felix stated he wanted to deposit all but $25, so he gave him $25 in cash and a passbook showing $125 to his credit. Felix signed the note himself, and the witness wrote Ware’s signature at his request, and he signed by his mark. He put the note out of the window for them to sign, and they signed it there. Felix had the note in his hand at the time he signed it, and both had it in their possession sufficient to have read it themselves if they had wanted to do so, or to have had it read to them, but neither of them read it or asked to have it read.

Under different assignments, and in various forms, the proposition is advanced that the testimony of defendants, indicated above, was inadmissible and insufficient upon which to predicate a defense because: (1) It was in violation of the rule forbidding the introduction of parol evidence to vary or contradict the terms of the agreement between the parties as evidenced by the note and mortgage; and, (2) the pleading of defendants, being simply a plea of non est factum, was insufficient to’ authorize the admission of such testimony under any of the exceptions to the rule of evidence noted.

In justice court cases, great informality of pleading is permissible, and even in the county and district courts technical rules of pleading will not be permitted to defeat a right substantially alleged. Barnes v. Patrick, 106 Tex. 146, 146 S. W. 154. As developed by the evidence, the plea of non est factum was inapplicable because the parties admitted signing the note sued upon, and there is no evidence of any' alteration therein after its execution. But in addition to the plea of non est factum, the answer stated facts sufficient to show the defendants had been overreached and defrauded by appellant into signing a note for an amount in excess of the one which should have been properly drawn and executed; that, for all above the sum of $125 and interest, the note was wanting in consideration. The answer sufficiently alleges these facts, and the parol evidence in support thereof was properly admitted.

Exception was taken to the admission of the passbook given by plaintiff to Smith at the time the loan was made. The book showed a deposit, as of that date, of $125 and subsequent withdrawal entries therein, aggregating a like amount. The book was admissible in corroboration of defendant’s testimony that only $125 was obtained by Smith from the bank.

The next assignment is that the judgment of the court is against the great weight of the evidence; is clearly wrong, and should be set aside. The testimony of Smith and Ware which has been quoted relates to the only issue of fact in the case, and plainly is sufficient to support the judgment. In fact, the weight of the evidence, we think, preponderates in favor of the judgment.

Affirmed.
      ©c^Por other oases see same topic and KEY-NUMBER in all Key-Numtered Digests and Indexes

      <§m»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    NORTHERN TEXAS TRACTION CO. v. NICHOLSON et ux.
    (No. 7573.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 21, 1916.)
    1. Trial @=>191(9) — Instruction — Weight of Evidence — Carriage of Passengers.
    In action against carrier for injuries to plaintiff’s wife getting off a car, an instruction that it was “the duty of defendant’s servants in charge of defendant’s car at the time and place of the alleged accident to have used for the safety of plaintiff’s wife” the highest degree of care, etc., was erroneous in not conditioning such degree of care upon the issue of whether she was a passenger, and thus in effect charging on the weight of evidence, contrary to the direct prohibition of Yernon’s Say les’ Ann. Civ. St. 1914, art. 1971.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. @=>191(9); Carriers, Cent. Dig. § 1337.]

      2. Trial <3=5256(9) — Instructions—Request —Necessity—Contributory Negligence.
    In the absence of request by defendant to so charge, it is not reversible error to fail to instruct in the main charge, in an action for negligent injury, that plaintiff must show absence of contributory negligence, where plaintiff’s pleading and evidence does not disclose presence of contributory negligence, and where defendant’s requested charge on contributory negligence is given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 637; Dec. Dig. <3=5256(9).]
    3. Evidence <3=271(10) — Self-Serving Declaration — Statement as to Injury Long After Accident.
    In action for injuries, testimony of a witness, that long after the alleged accident the alleged injured party stated she had been hurt, is inadmissible as a self-serving declaration.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1082; Dee. Dig. <3=271(10).]
    4. Trial <3=121(4) — Argument by Counsel-Corporation’s Witnesses.
    In action against carrier for injuries, where the carrier had agreed with certain witnesses to reimburse them in the ratio of their earnings for the time they were in attendance upon court as witnesses, statement to the jury by counsel for plaintiff that these witnesses were “bought and paid for,” and that the carrier’s claim agent admitted that fact, etc., was error; there being no impropriety in such arrangement for reimbursement for time lost.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 298, 300; Dec. Dig. <3=121(4).]
    5. Evidence <3=590 — Credibility oe Witnesses — Corporation’s Servants.
    While a jury is not compelled to accept as true the evidence of a corporation’s servants because they are such, the jury has no right to disbelieve such evidence for that reason.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. <3=590.]
    6. Appeal and Error <3=1170(7) — Harmless Error.
    Notwithstanding rule 62a of Courts of Civil Appeals (149 S. W. x) as to error not amounting to denial of rights of appellant, evidence for defendant carrier in an action for injuries as to the cause of the accident and the extent of injuries held to be such that errors by the trial court could not be considered harmless; the verdict being for $5,000 for a fractured leg.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543; Dee. Dig. <3= 1170(7).]
    7. Evidence <3=477(2) — Opinion Evidence-Nonexperts — Apparent Sickness.
    In action against carrier for injuries to plaintiff’s wife, plaintiff’s testimony, in answer to question whether from her appearance she was getting better or worse, that she was getting worse, was not improper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2238; Dec. Dig. <3=477(2).]
    Error from District Court, Dallas County; Kenneth Foree, Judge.
    Action by T. J. Nicholson and wife against the Northern Texas Traction Company. Judgment for plaintiffs, and defendant brings error.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, and J. Hart Willis and Thompson, Knight, Baker & Harris, all of Dallas, for plaintiff in error. J. C. Patton and W. H. Clark, both of Dallas, for defendants in error.
   RASBURY, J.

Defendant in error was plaintiff in the lower court, and the plaintiff in error was defendant. For convenience and brevity they will be so designated in this opinion. Plaintiff Nicholson sued defendant, Northern Texas Traction Company, for damages for personal injuries alleged to have been negligently inflicted upon his wife while she was a passenger upon one of defendant’s street cars in the city of Dallas. The substance of the alleged negligence was that, after defendant had halted its car upon signal from plaintiff’s wife and while she was in the act of alighting, the defendant, without warning to plaintiff’s wife, suddenly, with a violent jerk and lurch, started its car forward, throwing her with great force and violence to and upon the street, seriously and permanently injuring her. Defendant’s defenses, necessary to be stated, will appear from our consideration of the issues presented in its brief, and for that reason the pleading will not be detailed. Trial of the case resulted in verdict and judgment for plaintiff for $5,000. From..such judgment defendant has appealed.

We will not consider the assignments se-riatim, but the issues raised thereby; nor will we attempt to state the facts adduced by the respective parties, save when necessary in discussing the issue.

Complaint is made of the court’s instruction to the jury on the degree of care to be exercised by defendant toward plaintiff’s wife while a passenger on its car. The point urged is not that an erroneous definition of the degree of care to be exercised was given, but that the instruction was upon the weight of the evidence, in that it assumed that plaintiff’s wife was a passenger at the time of the alleged accident, while the evidence on that issue was conflicting and hence led the jury to believe that plaintiff’s contention with reference to the time, place, and manner of the accident was true as matter of law. In connection with the issue so made, plaintiff’s testimony tended to show that, while his wife was in the act of alighting from the car, defendant’s servants suddenly put the same in motion with a violent jerk by which his wife was thrown from the steps of the car onto the ground and seriously injured. Defendant’s testimony, on the contrary, tended to show that plaintiff’s wife alighted safely from the car and thereafter seized one of the handholds of the ear as it was moving away as a contrivance upon which to base a pretended or fraudulent suit against defendant. The charge does tell the jury that it was “the duty of defendant’s servants in charge of defendant’s car at the time and place of the alleged accident to have used for the safety of plaintiff’s wife” the highest degree of care, etc. Fairly considered, the charge is in our opinion susceptible of the criticism directed against it. It unequivocally tells the jury that defendant was bound to exercise toward the wife of plaintiff the duty defined “at the time and place of the alleged accident.” Whether defendant was so hound depended upon the fact issue of whether she was a passenger. Our practice acts provide that the trial judge “shall not charge or comment on the weight of evidence.” 2 Vernon’s Sayles’ Stats, art'. 1971. And the inquiry always is whether the statute was in fact violated and the prohable effect upon the jury. In connection with such inquiry, the ease of El Paso Elec. Ry. Co. v. Boer, 108 S. W. 199, is in point in the case at bar. In that case the trial court charged the jury:

“That plaintiff, as shown by the evidence, was a passenger on the car of defendant (company) at the time and place of the alleged' injuries.”

In passing on the correctness of the charge, the court said that the ordinary rule is that one continues to be a passenger until he reaches his destination and is given reasonable time and opportunity to safely disembark, but that the charge complained of, when it told the jury that plaintiff “was a passenger on the car of the defendant company at the time and place of the alleged injury,” assumed as a fact that plaintiff had not been afforded a reasonable time and opportunity to safely disembark, and continued in fact a passenger thereon, and was hence erroneous. In the present case, while the charge does not tell the jury that plaintiff’s wife was a passenger at the time and place of the accident, it does inform the jury that she was at that very time entitled to that high decree of care to which passengers are entitled. It may be that the error would have been emphasized had the court in so many words informed the jury that plaintiff’s wife was a passenger, but it seems to us that the difference in the two cases is in form rather than substance, since to tell the jury that plaintiff’s wife was entitled to that high degree of care due a passenger was but to say she was a passenger. The effect of plaintiff’s counter propositions is that, when considered in connection with the special charges given at the request of defendant, the probable effect of the main charge, if erroneous, was not to mislead the jury. The court did at the request of defendant specially instruct the jury, if plaintiff’s wife’s injuries proximately resulted from her seizing the handhold of the car after she had safely disembarked from the car, to return a verdict for defendant, regardless of all other issues in the case. The proposition is not without force and persuasion, and it might be that, in the absence of the sharp conflict in the evidence presented by this record and the absence of other error, the case would not be reversed on such ground alone. •Since, however, the case is to be reversed on other grounds, further discussion of the issue will not be necessary.

A further attack is made upon the court’s main charge submitting the issue of negligence. The charge directed the jury to find for plaintiff if from the evidence they believed' defendant “negligent” as that term had been.defined, and also believed that such negligence was the direct and proximate cause of plaintiff’s wife’s injuries, if any; but, on the other hand, to find for defendant if they believed it was not negligent, or that plaintiff’s wife was not injured. The precise criticism of the charge is that in effect it excludes from the consideration of the jury the issue of contributory negligence tendered by defendant, and sustained by evidence. In such connection, it appears from the record that the trial court at the request of defendant specially instructed the jury that if the wife of plaintiff safely alighted from the car after it halted, but seized the handhold of the same when it resumed motion, and such act proximately contributed to her injuries, to find for defendant, regardless of any other issue in the ease. Defendant contends, however, that the giving of such special charge did not cure the vice in the main charge, for the reason that as presented there was an irreconcilable contradiction in the two charges, which permitted the jury to follow either without reference to the evidence. The rule invoked is announced in the leading case of Baker v. Ashe, 80 Tex. 356, 16 S. W. 36, and reaffirmed in a number of later cases, and when applicable is a well-recognized one. We conclude, however, that it is not applicable in the case at bar. The general rule is, in substance, that in construing the court’s charge it should be considered as a whole and each part considered as a qualification of the other. But it was said in the case cited that, when the court omitted from its charge' one of the facts to be found and which was essential and necessary to a recovery, such general rule did not apply ; and as a consequence it was held in the case cited that the omission to charge the jury on every fact necessary to a recovery on the case as made-could not be cured by a special charge supplying the omitted issue. The reason is clear, for to say that a recovery may be had without proof of the facts necessary to sustain it is palpably erroneous. It is equally clear that a special charge is unavailing to cure the error, for by the main charge a state of facts is related which will entitle the litigant to a recovery without reference to any other fact submitted in special charges. The jury might consistently argue that while the facts to be found by the special charges were adverse to the plaintiff, at the same time those submitted in the main charge could be found favorably and constituted in law, as evidenced by the charge of the court, sufficient ground for recovery. But we think an entirely different issue is presented by the record in the case at bar. It is not claimed that any affirmative fact necessary and essential to plaintiff’s right to recover, if the jury accepted his theory of the case, was_ omitted by the court in bis charge. It is only in such cases that we understand the rule relied on by defendant to be applicable, with one esception, which will directly be noted. Contributory negligence in the present case was a defense urged by defendant. The case made by plaintiff’s pleading and evidence did not disclose any negligence on the part of his wife contributing to her injury, and hence plaintiff was not compelled to prove the absence of such negligence to authorize the verdict. A case in point is G., C. & S. F. Ry. Co. v. Allbright, 7 Tes. Civ. App. 21, 26 S. W. 250. In discussing the court’s charge it was said:

“The only question here is whether the failure to include, in the facts essential to recovery, absence of contributory negligence, is to be treated as an omission which should be supplied by a request for a special charge, or as a positive error. If contributory negligence came into the case as a separate and distinct defense, not involved in the investigation of the very transaction on which plaintiff relied, and therefore to be alleged and proved affirmatively by defendant, it may be that an omission to charge on it would not be reversible error, if no special instruction were requested.”

The court then holds that the development of the facts essential to plaintiff’s cause of action did disclose contributory negligence on his part, and, the trial court having failed to include in the charge presenting the plaintiff’s case an instruction that plaintiff must show the absence of such negligence, error was committed, since it permitted a recovery upon a partial view of the facts necessary and essential to be shown. In the present case, however, as we have said, it does not appear from the evidence of plaintiff that his wife was guilty of contributory negligence. That issue came into the ease as a distinct and separate defense tendered by defendant. Consequently, while that issue could have been properly submitted in the main charge, it was not reversible error to omit it, since it was the duty of defendant to request its submission. From what we have said, and since it was not necessary for plaintiff to show affirmatively that his wife was not guilty of contributory negligence, it follows there is no contradiction in the main and special charge, since the rule in such cases is undisputed, save in the exceptions noted, that one portion of the charge may be regarded as qualifying another, and the presumption is that the jury so considered it and were not misled thereby.

By appropriate assignment the issue is made that the court erred in admitting certain testimony tendered by plaintiff. Mrs. Praeger, witness for plaintiff, testified that after the accident, by which plaintiff’s wife claimed to have been injured, she was employed by the plaintiff and his wife in their corset factory and commenced work there about February 6, 1918, which was subsequent to the alleged injuries, and that plaintiff’s wife was then confined in bed, and that she never saw her walk while employed there, which was for about two months. After so testifying, counsel for plaintiff inquired of the witness, “What complaint did she (meaning Mrs. Nicholson) make while you were there?” Over the objection of counsel for defendant, the witness answered, “She told me she had been hurt” The proposition urged is, in effect, that the answer of the witness is but a self-serving declaration of the injured party, made long after the accident and upon an issue sharply controverted, and hence inadmissible, because incompetent. By the rule announced in Insurance Company v. Eastman, 95 Tex. 34, 64 S. W. 863, the admission of the testimony complained of was reversible error. In the case cited, Eastman sued the insurance company upon a fire insurance policy. The insurance company sought to avoid liability on the ground that Eastman had secured additional insurance on his property in excess of the amount stipulated, without notice to the company, which act by the contract forfeited the policy. At trial Eastman testified that he did notify the agent of the insurance company that he had secured the additional insurance. The agent testified that Eastman did not so notify him. The evidence so standing, counsel for Eastman in rebuttal introduced as a witness one Sweeton, who, over objections, testified that Eastman told him that, on the day the additional insurance was secured, he (Eastman) did notify the insurance company’s agent of that fact. In passing on the action of the court in admitting Sweeton’s testimony, our Supreme Court said there was great contrariety of opinion on the subject of what circumstances would render admissible the former declarations of a witness as support for his testimony at trial, but that two rules were reasonably well established; one being that, in the absence of evidence impeaching the credibility of a witness, such testimony was never admissible. In the present proceeding no attempt was made to impeach Mrs. Nicholson’s credibility as a witness. Her declaration that she was in bed because she had been hurt was clearly self-serving, since it was and could have been in corroboration only of her claim that she was in bed as a result of the alleged acci-' dent, and for which she had pending at the time a suit for damages. Defendant in error’s reply to the point, aside from technical objections to the manner of presenting the issue, which in our opinion are not well taken, is, in substance, that the evidence complained of was the opinion of the witness and was admissible for that reason. Experts may state the apparent physical condition of a person, as the existence of a state of apparent sickness or disease, etc. Such rule, however, will not render admissible the declarations made to another in corroboration of the declarant’s testimony.

It is further urged that the court erred in two instances in overruling objections tendered by defendant to certain argument of counsel for plaintiff. It was shown by the evidence that defendant’s claim agent had agreed with certain women formerly in the employ of Mrs. Nicholson to reimburse them in the ratio of their earnings for the time they were in attendance upon court as witnesses for defendant. In discussing the case counsel for plaintiff said:

“Now, about these women, gentlemen of the jury, we can’t believe their testimony. They are bought and paid for, as admitted by their claim agent, Douglass.”

Other counsel in the concluding argument to the jury made the statement, in substance, that Chief Justice Brown had said, in an opinion in a suit against a railroad company, that the jury did not have to believe witnesses because they were servants of the railroad company. We have recently said on the issue raised here, in substance, that the trial court has no discretionary control over a litigant’s right to be heard by counsel, save as to order, time, division, etc., and the right to require of counsel proper observance of the scope of the argument, and that in that respect the most liberal freedom of speech should be allowed. One of the limitations of counsel’s right is, however, that he may not state facts not supported by or in-ferable from the evidence in the case under discussion. Winnsboro Cotton Oil Co. v. Carson, 185 S. W. 1002. That counsel’s statement that defendant’s claim agent “had bought and paid for” certain witnesses, and that the claim agent admitted that fact, and as a consequence could not be believed, is not fairly supported by or inferable from the evidence is in our opinion, clear. The claim agent testified, in substance, that he had agreed to pay the witnesses while in attendance upon court in the ratio of what they were earning. The litigation involved a private controversy between the parties, and there is much reason why the witnesses would not have been willing to quit their employment and sacrifice their earnings in order to testify in a matter in which they had no interest, and we see no impropriety in the arrangement, or any justification or support in the evidence for the deduction drawn. It is true that the witnesses could have been forced to attend by tendering their fees, but such a course is obviously beset by many inconveniences and difficulties tending to prevent a full development of the facts. Of course, had any circumstance or fact been proven that would have justified the innuendo of perjury, the argument would have been legitimate; but, in our opinion, that fact is not deducible from the agreement to reimburse the women for the time lost.

The other objection to counsel’s argument is based upon the statement of counsel, made in the concluding argument, that former Chief Justice Brown of our Supreme Court had said in an opinion in a suit against a railroad company that the jury did not have to believe the testimony of certain witnesses because they were servants of the railway company. This statement was also not supported by or inferable from the evidence, nor is it a correct principle of law if that, fact would justify the utterance. While it may be true that the jury were not compelled to accept as true the evidence of the two servants of defendant merely because they were servants, it is conversely true that they had no right to disbelieve them for that reason.

Counsel for plaintiff meet the complainants with reference to the argument with the proposition that the error was harmless as reflected by the amount of the verdict, and for that reason should be sustained under rule 62a (149 S. W. x). We conclude the present case to be one where the effect of the error is not reflected in the verdict, and one where we cannot say the improper argument was not reasonably calculated and probably did not cause an improper judgment. We reach that conclusion because of the state of the evidence. While we have not heretofore adverted to that fact, the evidence in the case on the issue of whether Mrs. Nicholson was injured while alighting from the car or injured at all is in pronounced conflict. Mr. and Mrs. Nicholson and their daughter testified positively that she was thrown from the car while in the act of alighting. Her expert witnesses testified that as a result of that fall the leg bone was fractured at the point where it fits into the hip socket. A number of witnesses also testified to the fact that Mrs. Nicholson was confined to her bed after the . accident with a weight attached to her leg. The conductor on the car upon which Mrs. Nicholson was a passenger and the motorman on another car about 15 feet in the rear testified positively that Mrs. Nicholson alighted safely from the car, but designedly seized the handhold of the same when it resumed motion, following same a few steps when she released her hold and walked across the track, never at any time being thrown to the ground. Pláintiff in error also adduced a great amount of evidence of much probative force tending to show that Mrs. Nicholson was malingering subsequent to the accident.

It was the servants of the defendant in the one instance who testified concerning Mrs. Nicholson’s actions in alighting from the car and who counsel argued did not have to be believed because they were servants, while in the other it was the women referred to by counsel as having been bought and paid for by the claim agent who testified to the facts' tending to prove that Mrs. Nicholson was malingering. The evidence so standing, can it be said that the error was harmless because only $5,000 was allowed for a fractured bone? As indicated, we do not think so. The evidence was sharply conflicting and evenly divided on both the issue of the fall from the car and Mrs. Nicholson’s subsequent simulated illness. To discredit the servants of defendant and the women witnesses w.as but to strengthen the evidence of Mr. and I Mrs. Nicholson and their daughter, on the issue of the accident, and that of her other witnesses on her subsequent illness. Such was the holding in Ft. W. Belt Ry. Co. v. Johnson, 59 Tex. Civ. App. 105, 125 S. W. 389. And in this case, as was said in the case cited, no effort was made to impeach the witnesses sought to be discredited by the argument, nor is any conflict, contradiction, or inherent improbability shown in their account of the accident, and- as a consequence no justification for the charges. I

Another assignment of error also complains of certain argument of counsel for plaintiff, but the argument there complained of in our opinion was reasonably in reply to and provoked by counsel for plaintiff in error.

While plaintiff was on the stand as a witness, he was asked, in reference to his wife’s condition after the accident:

“Was she all the time getting better or worse? From her appearance was she getting better or worse as she went on? Did she appear from her appearance better or worse?” To which, over objections, he answered, “She has been getting worse.”

Under the facts shown by the bill, we conclude the question was not improper. Yeatts v. St. Louis S. W. Ry. Co., 184 S. W. 636. In the case cited, the general rule as stated (17 Cyc. 87) is quoted and may be the guide on another trial.

Several assignments raising issues of pleading will not be considered, for the reason that an inspection of the pleading discloses that the assignments are without merit.

It will not be necessary to review the sufficiency of the hypothetical question submitted to Dr. Boyce in view of a reversal of the case, since the facts may be dissimilar.

For the reasons indicated, the judgment is reversed, and the cause remanded for another trial.
      ®=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: HABPEB, C. J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. PAINE.
    (No. 603.)

    (Court of Civil Appeals of Texas. El Paso.
    Oct. 19, 1916.
    Rehearing Denied Nov. 9, 1916.)
    1. Appeal and Error <@=>274(6) — Findings op Fact — Exception to Judgment.
    An exception to the judgment is sufficient to authorize a challenge of the trial court’s findings of fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1639; Dec. Dig. <@=>274(6).]
    2. Appeal and Error <&wkey;750(7) — Assignments of Error — Findings of Fact.
    In an action for damages to an automobile, assignments of error that the driver was guilty of contributory negligence under the undisputed testimony, and, there being no evidence of discovered peril, there should have been no recovery, and that the evidence was insufficient to support any allegation of negligence contained in the petition, directly challenged the trial I I court’s findings of facts in favor of the plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3074; Dec. Dig. <&wkey;750(7).]
    3. Negligence <@=>136(14) — Question for Jury.
    The general rule is that negligence is a question of fact for the jury, but the courts may declare some acts to be so obviously dangerous and reckless as to constitute negligence per se.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 305, 306, 316, 318, 320; Dec. Dig. &wkey;136(14).] .
    4. Bailroads <&wkey;328(6) — Accident at Crossing-Contributory Negligence.
    The driver of an automobile, who neither looked nor listened for the train that struck him, nor paid any attention to the warning given him, but ran his car on a track immediately behind a receding train without trying to ascertain whether there was another train to pass immediately in the other direction, was guilty of such negligence as to preclude a recovery for damages to the automobile.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 1063; Dec. Dig. <@=>328(6).]
    5. Bailroads <&wkey;348(l) — Accident at Crossing — Discovered Peril — Evidence.
    The admission of the driver of an automobile struck and damaged by defendant’s train that he saw the approaching train 20 feet away when ho was proceeding slowly and could have stopped in 3 feet, but that he did not reverse because he thought the quickest way was to go ahead, was, in effect, an assertion that there was no discovered peril.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1138, 1140, 1141; Dec. Dig. <&wkey; 348(1).]
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by H. A. Paine against the St. Louis, Brownsville & Mexico Bailway Company and Frank Andrews, receiver, and others. Judgment for plaintiff against the St. Louis, Brownsville & Mexico Bailway Company, and the receiver and the .railroad appeal.
    Beversed, and judgment rendered for defendants.
    Andrews, Streetman, Burns & Logue, W. L. Cook', and Coke K. Burns, all of Houston, for appellants. Love, Channell & Fouts, of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   HABPEB, C. J.

This is an appeal from a judgment for $800 damages to an automobile in favor of appellee against St. Louis, Brownsville & Mexico Bailway Company, and Frank Andrews, receiver; and in favor of the Houston Belt & Terminal Bailway Company, Gulf, Colorado & Santa Fé Bail-way Company, and Trinity & Brazos Yalley Bailway Company, and in favor of appellee. Tried without jury. St. Louis, Brownsville & Mexico Bailway Company, excepted to the judgment and gave notice of appeal.

Two- assignments are urged:

(1) The driver of the automobile being guilty of negligence, under the undisputed testimony, and there being no evidence of discovered peril, there should have been no recovery.

(2) The evidence is insufficient to support any allegation of negligence contained in plaintiff’s petition.

The appellee urges that, the case having been tried without jury and the court having filed conclusions of law and facts, such findings are binding upon appellant in the absence of challenge by assignments of error.

An exception to the judgment is sufficient to authorize challenge of findings of facts by trial court. This the record shows was taken. Voight v. Maekle, 71 Tex. 78, 8 S. W. 623. And we think the assignments here presented are a direct challenge of such'findings.

The acts of negligence charged to be the proximate cause or causes of the accident and injury to the automobile are, in substance, as follows: (1) Defective crossing; (2) failure to have a watchman; (3) operating the train at a speed in excess of that allowed by ordinance; (4) failure to blow whistle and ring bell; (5) failure to slacken speed of the train upon discovering the peril.

The defendants plead contributory negligence of the driver of the machine: (1) Because he failed to make proper lookout before going upon the track; (2) failed to note the approach of the train, warning of which was given by flash of headlight, by bell, and whistle; (3) and because of his failure to heed warnings given by persons in the vicinity of the crossing to stop.

Appellee, in answer to appellants’ charge of contributory negligence, pleads: (a) The nearness of certain alleged switch engines on an adjacent track, which engines it is claimed were making noises suggestive of probable movement; (b) the driver’s mistake or confusion as to the signals given, in that he associated said signals with an alleged expected movement of said engines; (c) the presence of a bright arc light at the crossing which counteracted the effect of * the headlight and prevented the driver from noting the approach of the train; (d) the passage of an inbound train just preceding the effort to cross, which it is claimed added to the confusion.

Findings of Facts.
“I. On the 8th day of August, 1912, the appellants owned and maintained railroad tracks upon which they operated their locomotives and trains across a public street and thoroughfare in the city of Houston, and which was then, and had been for a long time prior thereto, constantly used by the public in said city of Houston as a public street and thoroughfare for the purposes of travel.
“II. At the point where defendants’ line of railroad crosses said street, it maintained four railroad tracks, two tracks known "as main line tracks, and two known as switch tracks or side tracks. The two main line tracks were located south of the switch tracks, the main line track known as the outbound track being south of and approximately 8 feet from the other main line track known as the inbound main line track. The tracks or roadbed at the point where the same crossed said street was about 2^4 or 3 feet higher than the street on either side of it, there being quite an abrupt approach. There were depressions between the rails of the railroad tracks of from 6 to 12 inches, the surface of the street between the tracks being lower than the top of the rails, which rendered the crossing over the tracks rough and difficult to travel over with an automobile or other vehicle.
“III. On said day, about 9 o’clock in the evening, George E. Ayers was driving the automobile for damages to which this suit is brought along said street, going from the north to the south.”

He described the accident as having occurred in the following manner:

“In the car was myself, and wife, my wife’s sister, and Otis Paine. As I approached that Sampson street crossing on the occasion in question, I saw a passenger train coming into town ; it hadn’t got to the crossing when I first saw it. When I saw it, I stopped. That train was coming in very slowly. I pulled up a little closer to the train, and just after it passed, as I was going across, another train coming in the opposite direction hit us. The other train was also a passenger train coming in the opposite direction from the one I first saw coming into town. I suppose that train was coming over the same railroad as the first one was. There are four tracks at the place of the accident, and the inbound train was on the third track, and the outbound train on the fourth track. It was the outbound train that collided with us.
“After the inbound train crossed, I did not see any other train going out; the reason I didn’t was there were two switch engines standing on the two other tracks with their headlights lighted and steam blowing off. The street light, too, was lighted, and with all this noise and light I couldn’t see this other headlight; and they were all ringing their bells. I judge those two switch engines I have mentioned were standing about 60 feet from where I was, on the left side of me as I was going out. I was going from town out to my home. > In other words, these switch engines were standing east of the Sampson street crossing and were apparently standing there waiting for this train that was pulling in. When I started across, I was watching for those switch engines to come up on that track.
“When I first discovered the train that struck us it was about 20 feet away from us. When I saw it at first, I had my car in low gear, and I tried to get across, but I did not get across. The reason I didn’t stop and reverse and try to back is because I didn’t have time. I thought the quickest way was to go ahead.
“The condition of that crossing there with reference to getting over it quickly or otherwise was it was - or would have been impossible to have gone over the track in high gear; I couldn’t have done it, and in fact we always changed the gear to make the crossing. There were no boards on the track. It was just merely filled with shell, and oftentimes where it would be down at the bottom of the rail you would have to raise entirely over the rail.
“Low gear gives the car more power and enables you to make it over rough ground. If the street there had been comparatively smooth and the railroad tracks had been on a practical level with the surface of the street, I could have escaped that train and not been struck.
“I stated that in approaching this crossing on Sampson street I noticed the inbound train. When I first noticed that train, it was, I should say, about 200 or 300 feet from the crossing, while I was about 75 feet from the crossing. I stopped before I got to the crossing. In other words, I got to where I stopped and waited for that train before it got there. The train covered a distance of possibly 150 feet after I came to a stop before it ran in front of me, or perhaps 100 feet. I guess I stopped within 25 feet of the track that train ran upon. As to whether I said, before tbe train got entirely off the crossing, I pulled up closer, why, I stopped on the other side of the tracks first before I got on the railroad. There are four tracks at that crossing, and there were two of those tracks between me and this inbound train at the time I stopped. The train was on the third track. The distance from us, when we were standing there, to the track this train was running on, was about 75 feet the first time I stopped, but I stopped again before making the crossing. I stopped on the second track then. When I stopped the second time, I should say I was then 25 or 30 feet from the track this inbound train was on. I stood there when I made that second stop until the train had passed, and that train was running very slowly, so I judge I stood there 3 or 4 minutes before I started again. The train, as I said, was on the third track, and after it had passed I started again. I did not start like that (counsel snaps finger) after the train had gotten away from the crossing, but I expect 30 or 40 seconds elapsed before I did start. The train had gotten about 30 or 40 feet away from me when I started the second time.
“The train which struck us was on_the_ track just beyond the third track. My opinion is that train was running about 25 or 30 miles an hour, and it hit me just as I got on the fourth track it was on; it struck me just as I got on that track. Certainly I had seen that train before it hit me;' I am positive of that.
“There were two engines standing down to my left, but I don’t know whether they were switch engines or not. Those engines were on tracks Nos. 1 and 2. In designating these tracks by numbers I am numbering from the north side of Sampson street, i. e., from the side I approached. There were several tracks that branched off from that, and there might have been some switch engines there, but these two engines I have spoken about were on tracks 1 and 2, and I should say 75 to 100 feet to my left, approximately.
“The inbound train came in on track No. 3, numbering those tracks from the direction I approached, and the outbound train went out on track No. 4. The switch engine on either track 1 or 2 did not interfere with our crossing tracks 3 or 4. As to whether I told the court a while ago I was afraid one of those engines would bear down on us, why, they were ringing their bells and blowing their whistles, the steam, and the men were halloaing. It is a fact that what they were trying to do was to keep us from going across there and getting hit by that train; that is what they were doing, but they attracted my attention. There was not a man there at the crossing trying to stop me; there was no one right in the street trying to stop me. It is not a fact that I came mighty near running over a man to get by there.
“It is not a fact that I saw this outbound train and thought I could make it and tried to get across. I do insist that I got on the track before I realized that that train was coming. It is certainly not a fact that I didn’t stop at all, and that I just kept going from the time I got anywhere near that crossing until I got hit.
“I stated that I had my car in low gear when I went to make that crossing. I do not make railroad crossings on high gear unless the road is in condition. My general practice about that is I make all roads that are in good condition on high gear; all that are not, in low gear. I don’t mean them on high speed, but I mean on high gear; there is a difference between the two. On the occasion in question, however, I made that crossing on low gear. It was about an hour before this accident that I had made it on high gear. I did it frequently, about three times a day. I knew the condition of this Sampson street crossing, and knew that I had to make it on low gear. I knew that when I first went on the track. I knew all the time T was going to have to use low gear. ' I was going from 4 to 6 miles an hour when I made that; I mean when I made it in low gear. I do claim to be an expert automobile driver. You could stop a car going from 4 to 6 miles an hour in the space of about 3 feet.
“The brakes were in good condition on this brand new Paige car. You couldn’t stop a car instantly by just planting your foot on the brake; you can’t stop any moving object instantly. But, as I have said, you could stop a car going from 4 to 6 miles an hour in the space of about 3 feet.
“In going on that crossing, Waddell’s warehouse was to my right. I cannot say whether that warehouse was on the property line, but I know substantially where it was. I couldn’t say whether it was on the railroad right of way,. because I don’t know where the right of way is. It is not a fact that after I got even past track No. 1 or on track No. 1, going across, that the Waddell warehouse obstructed my view, but the box cars did. In fact, I did not get across track No. 1 until I was hit. I was standing on track No. 1 before I started the second time. I do not remember whether there were any box cars after I passed track No. 1. I won’t say that there were. The box cars I am talking about were on track No. 1. I won’t say there were any on the other tracks. I do not know that there is anything that I can recall between tracks 1 and 4 that deprived me from seeing the inbound train.”

Mrs. Geo. E. Ayers testified in substance and in part as follows: Witness was in the automobile with Mr. Ayers at the time it was damaged at the Sampson street crossing on the night of August 8, 1912. As they approached the Sampson street crossing, they stopped on the first switch and waited until the inbound passenger train passed. After that incoming train had passed they started again;. started slowly; after that incoming train had passed, they started in low gear, or, as some people call it, “first speed.” Witness saw two switch engines standing over to their left, and supposed that there were two men with each of those, engines, as there usually is. The steam was coming from those engines. She did not see anybody say anything or do anything as they started to go on across the track; saw no one making a signal; did not see a man with a lantern; did not see them down there by those switch engines to their left with lanterns, and saw no signals given; did not hear any one say, “Hal-loa,” to them to stop, or to look out, or anything of that kind. Witness did not hear the train that strucIT the automobile; the first she knew about its coming was just as the first wheels of the automobile were on the track, and the engine then hit it. Of course,, as witness states, they saw it before it hit, but there was nothing they could do; it was just in an instant; it hit just the minute they saw it. Witness estimates the speed of the train at about 25 or 30 miles an hour. Witness heard no bell- ring or whistle blow, except by the inbound train. Those switch engines were making a noise with the exhaust.

On cross-examination witness further testified as follows:

“We were in low gear at the time we got on this track that night. We had stopped on one of the switch tracks to wait for the Santa Eé train to pass. We stopped on the first switch track we got to. We did not stop again then before going on the main line. When we stopped on the switch that was our second stop, and, immediately after the Santa Fé train passed, we started up and kept going until the accident. I couldn’t see the Brownsville train which struck us before we got on the track. We looked down the track to see just as soon as we could; we always do that, look both ways. We looked both ways that time before letting on this second track. We looked just as soon as we could. We looked to the left. We looked both ways as soon as we could.
“I did know there were two tracks there, and I suppose I also knew that if a train were coming on that far track this train coming in would obstruct the view; I suppose that is obvious. We were standing on the switch track when the inbound train was coming in. We had crossed the inbound track, or rather I mean to say we had to cross the inbound track before we got to the outbound track, but if I would look up that inbound track I could see nothing but the back end of the , train that passed even after we got on the same track with it. I don’t see how I could see anything on the other track at all. (Hands her white sketch.) This is Sampson street, and this is north, and we were coming in this direction. You say there is a distance of 7 feet and 8 inches between the rails of the inbound and the outb.ound tracks, main line tracks, and your question is whether or not I looked, after the automobile got on the inbound main line, to determine whether or not a train was coming down the outbound main line. Well, you see when we were on this track, just as our engine was past that track, we couldn’t see up here until we got almost on this track, but we had to keep coming, and every inch we came further gave us a better opportunity to see.
“I do not see how it could be a fact that, just as our front wheels got on the outer rail of the inbound track, we would have been bound to see this outbound train coming; I don’t see how we could have seen it. I suppose what would prevent us from seeing it is distance.
“We were standing on the switch track waiting for that Santa Fé train to pass; that was the train we were waiting to get by. As the back coach of that Santa Fé train began to cross the street, we started, but we had another track to cross, you see, to get to this place.
“That Santa Fé train wasn’t going so fast, not as fast as the one going out. Oh, my, no, we were not going as fast as the Santa Fé train. We were going very slow. I couldn’t tell you how far the Santa Fé train had gone past us when we got upon that track, because it kept on going, you know. It was some distance, and it kept on going. It was not anywhere near the length of a coach down the track by the time we got behind it.
“We did stop on the first switch track, and we started just as the Santa Fé train cleared the crossing. We were running much slower than the Santa Fé train, and I still think, notwithstanding we had to cover that distance, that that Santa Fé train was not a car length from us when we got behind it.”

Witnesses testified that a man stood in the street in front of the approaching antomo-bile and waved a lantern prior to its reaching the place of danger and halloing for it to stop, and further positive testimony that the bell of the train that struck the automobile was being rung and the whistle had blown, and it had a bright headlight. There is no contradiction of this evidence, except that the driver and other occupants of the car did not see nor hear anything of the sort.

The courts say that the general rule is that negligence is a question of fact for the jury, but the courts can and do declare some acts to be so obviously dangerous and reckless as to constitute negligence per se. The facts show clearly that the driver of this automobile neither looked nor listened for the train which struck him, nor did he pay any attention to the warning indisputably given him, but ran his car upon the track immediately behind the receding train, when its rear end had gone 40 or 50 feet, not more than 'two car lengths from him without in any way trying to ascertain whether there was another train to pass immediately in the other direction, and such acts upon his part constitute such negligence as to preclude a recovery in this action. Railway v. Bracken, 59 Tex. 73; Railroad Co. v. Houston, 95 U. S. 702, 24 L. Ed. 542; Railway Co. v. Edwards, 100 Tex. 23, 93 S. W. 106.

Again, the driver admits that he saw the approaching train, which struck his machine, approximately 20 feet away, that he was proceeding slowly, the brakes were in good order, and that he could have stopped in three feet; and yet he says that he did not reverse and go back “because I didn’t have time. I thought the quickest way was to go ahead.” This is in effect an assertion that there was no discovered peril, and there is no evidence in the record that appellants’ employés discovered the automobile in time to have stopped the train.

The judgment will be reversed, and as the facts appear to be fully developed, and show so clearly that plaintiff is not entitled to recover, it will be rendered for defendants.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes