author: DUNKLIN, J.

text:
    BLACKMON v. TEXAS SECURITIES CO.
    (No. 8614.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 5, 1917.
    On Motion for Rehearing, June 9, 1917.)
    1. Mortgages <&wkey;>116 — Future Advances— Building Contract — Completion by Another Than Contractor.
    The fact that improvements called for by a mechanic’s lien contract were completed by other workmen and not by the contractor himself would not affect the owner’s liability- to pay for the improvements or his liability by virtue of a deed of trust and secured note given to induce the payer to pay for such improvements, where defendant made no objection to the arrangement.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 382-392, 394-109.]
    2. Appeal and Error <&wkey;231(7) — Review-Admission oe Evidence.
    In an action on secured note and to foreclose vendor’s liens, where defendant’s counsel declined to state his purpose in asking defendant who had collected insurance money, defendant cannot on appeal predicate error on the court’s action in sustaining an objection to such question by showing that the witness would have testified that the insurance money had been used to pay the note, especially where the note was in possession of plaintiff and no explanation of that fact was offered.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 198.]
    3. Mortgages &wkey;>461 — Foreclosure — Evidence.
    Assignments of error to the admission in evidence of a .vendor’s lien note taken up by plaintiff' as part consideration of the secured note and deed of trust and also a judgment and deed thereunder to defendant’s vendor, introduced as muniments of her title to the property before she sold it to defendant, introduced in evidence over objections by the defendant, on the ground that there was a variance in the description of the property from the description contained in the deed of trust in controversy, will be overruled, where the proof without contradiction identified the property described in those documents as the same property described in the deed of trust; a part of such proof being statements and recitals contained in the defendant’s written application for the loan and also' in the deed of trust in controversy, which was executed by them.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1353-1360.]
    4. Mortgages <&wkey;460 — Foreclosure oe Trust Deed — Prooe.
    The taxes provided for in the deed of trust having been paid by plaintiff at the written request of the defendant contained in the application for the loan and under a stipulation in the deed of trust in effect that the same were valid liens, and that plaintiff would thereby be sub-rogated to such liens, the plaintiff was not required to prove a proper assessment and rendition, of the property for taxes as a prerequisite to its right of foreclosure of such tax lien.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1348-1352.]
    5. Appeal and Error <@=»731(5) — Assignment oe Errors — Verdict—Sufficiency oe Evidence.
    Assignments of error to the effect that the court erred in rendering judgment because the verdict of the jury was unsupported by the evidence, or contrary to the weight of the evidence, will be overruled, since the judgment must follow . the verdict, however erroneous the same may be, and even though the verdict may be subject to attack on the same grounds.
    [Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. § 3021.]
    6. Homestead t&wkey;96 — Charges Against Vendor’s Lien Note — Attorney’s Fees — Defenses.
    Where a. note secured by deed of trust contained a stipulation for attorney’s fees in an amount equal to 10 per cent, of the entire debt, and a vendor’s lien note taken up by the plaintiff provided for attorney’s fees at the same rate, and being a part of the consideration which the defendants agreed to pay for the lot when they purchased it, their homestead plea is not available against the collection of such attorney’s fees.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153.]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by the Texas Securities Company against Mrs. Robena C. Blackmon and another. Judgment for plaintiff, and named defendant appeals.
    Judgment reformed, and affirmed on rehearing.
    John L. Poulter and Graves & Houtchens, all of Ft. Worth, for appellant. Ross, Ross & Alexander, of Ft. Worth, for appellee.
   DUNKLIN, J.

The Texas Securities Company recovered a judgment against T. L. Blackmon and wife, Mrs. Robena C. Black-mon, upon a promissory note executed by those defendants in favor of the plaintiff, and also for a foreclosure of a lien evidenced by a deed of trust upon certain real estate situated in the city of Ft. Worth, and from that judgment the defendants have appealed.

At the time of the execution of the deed of trust which was foreclosed, the defendants had entered into a mechanic’s lien contract with J. F. Crenshaw to construct certain improvements upon the lot in controversy and had contracted to pay therefor the sum of $600. This contract was in due form and executed in the manner required by the statutes in order to fix a mechanic’s lien upon a homestead, and the property was at that time the homestead of the defendants; but the improvements had not then been made. There was also outstanding against the lot at the time a vendor’s lien note in the sum of $100, which had been executed by the defendants and unpaid taxes due the city, county, and state, aggregating approximately $167.65.

The deed of trust in controversy was ex-ecutecl for the purpose of inducing the plaintiff to pay off said vendor’s lien note and taxes, and also to pay to the contractor the price stipulated in the mechanic’s lien contract, and by the terms of the deed of trust the plaintiff was subrogated to all the rights of the holder of the vendor’s lien note, the state, county, and city for taxes, and of the contractor who held the mechanic’s lien contract.

A fire insurance policy upon the improvements was also taken out in plaintiff’s favor as further security for the money to be so advanced.

The defendants pleaded that the lot was the separate property of Mrs. Blackmon and was also the homestead of herself and husband. It was pleaded that the note subsequently had been paid out of the proceeds of the fire insurance policy which had been collected after the destruction of the improvements by fire. They pleaded further that the contractor had not complied with his contract for the erection of the improvements, and therefore they did not owe the full contract price therefor.

In answer to special issues the jury found that the improvements called for in the mechanic’s lien contract with Crenshaw were completed in accordance with the terms of the contract, and that the labor expended and material used in the erection and completion of said improvements were paid for out of the funds furnished by the plaintiff to the defendant. And such findings of the jury were amply supported by the evidence, which we deem it unnecessary to set out in this opinion, as the same would incumber the opinion to no useful purpose. We are of the opinion further that the court’s instructions submitting those issues were not upon the weight of the evidence, as insisted by appellant in other assignments.

The fact that Crenshaw, the contractor, did not himself complete the contract, but the same was completed by other workmen, would not make any material difference, especially in view of the fact that there is nothing in the evidence to show that the defendants made any objection to that arrange-' ment. Nor do we think there was any error in the court’s instruction to the jury to that effect. Walters v. Texas Building Ass’n, 8 Tex. Civ. App. 500, 29 S. W. 51; Pioneer Savings & Loan Co. v. Edwards, 12 Tex. Civ. App. 556, 34 S. W. 193; Downard v. National Loan & Investment Co., 22 Tex. Civ. App. 570, 55 S. W. 981.

An. assignment is presented to the action of the court in sustaining plaintiff’s objection to certain questions propounded to defendant Blackmon by his counsel. The bill of exception upon which the assignment is predicated states that the witness testified that plaintiff required him to take out a fire insurance policy on the building in favor of plaintiff, and that thereafter the property was destroyed by fire. He was then asked by his counsel, “Who collected the money from the insurance company on that policy?” Plaintiff objected to the question and answer thereto upon various grounds, one of which was that the testimony came too late if it was offered for the purpose of sustaining the plea of the defendants of payment of the debt out of the insurance money. Thereupon the court inquired of defendants’ counsel the purpose for which he offered the testimony, to which inquiry counsel replied at one time, “I merely desire to show what the facts are,” and at another time that counsel offered it for the purpose of showing “what became of the money that was received on the fire insurance policy.” The objection to the testimony was sustained. It is stated in the bill of exception that counsel expected to show by the witness, and the witness would have testified, that there was collected on the fire insurance policy the sum of $1,956.28, all of which was turned over to the plaintiff, who deducted therefrom sufficient amount to pay the debt upon which this suit was instituted, and the balance was turned over to the defendant Blackmon. Appended to the bill is the certificate of the trial judge as follows:

“Above bill of exception approved with the exception of that portion setting out what th( witness would have testified. Counsel when re quested to state the purpose of the testimony sought to be elicited declined to do so and had they stated that the testimony that they set out above would have been elicited same would have been admitted.”

Under the showing we are unable to sustain the assignment of error now under discussion. The rule is well settled that the trial judge has the right to be informed of the purpose for which testimony is offered under such circumstances as recited above, and as counsel declined to state that purpose they are in no position to complain of the ruling; especially in view of the fact that the note in suit was in the possession of the plaintiff, and its vice president and general manager testified directly and positively that nothing whatever had been paid thereon except the credits admitted in plaintiff’s pleadings; and as the proffered testimony of the witness shown in the bill of exception did not purport to give any explanation why the note was left in possession of the plaintiff after it had been paid, if such be true.

The vendor’s lien note in the sum of $100, in favor of Mrs. J. H. Leach, signed by the defendant T. L. Blackmon, which was taken up by the plaintiff and for which the deed of trust was in part executed, and also a judgment and deed thereunder to Mrs. Leach introduced as muniments of her title to the property before she sold it to defendants, were introduced in evidence over objections by the defendants, on the ground that there was a variance in the description of the property from the description contained in the deed of trust in controversy. Without further discussion, these assignments are overruled, in view of the fact that the proof without contradiction identified the property described in those documents as the same property described in the deed of trust; a part of such proof being statements and recitals contained in the defendant’s written application for the loan and also in the deed of trust in controversy, which was executed by them.

The taxes provided for in the deed of trust having been paid by plaintiff at the written request of the defendants contained in the application for the loan and under a stipulation in the deed of trust in effect that the same were valid liens, and that plaintiff would thereby be subrogated to such liens, the plaintiff was not required to prove a proper assessment and rendition of the property for taxes as a prerequisite to its right of foreclosure of such tax lien. Lufkin v. Galveston, 58 Tex. 545; McMickle v. Rochelle, 59 Tex. Civ. App. 91, 125 S. W. 74; Girardeau v. Perkins, 59 Tex. Civ. App. 552, 126 S. W. 633.

Several assignments of error to the effect that the court erred in rendering judgment because the verdict of the jury was unsupported by the evidence, or contrary to the weight of the evidence,- are overruled, since it is well settled that the judgment must follow the verdict, however erroneous the same may be, and even though the verdict may be subject to attack on the same grounds. Ablowich v. Greenville National Bank, 95 Tex. 429, 67 S. W. 79, 881; Armstrong v. Hix (Sup.) 175 S. W. 430.

The promissory note upon which suit was instituted contained a stipulation for attorney’s, fees in an amount equal to 10 per cent, of the entire debt. The vendor’s lien note taken up by the plaintiff provided for attorney’s fees at the same rate, and, being a part of the consideration which defendants agreed to pay for the lot when they purchased it, their homestead plea is not available against the collection of such attorney’s fees. But plaintiff admits that $82.39 of the judgment represents attorney’s fees over and above the attorney’s fees accrued on the vendor’s lien note, and in its brief plaintiff offers to remit and forego any right of foreclosure to the extent of that excess, and also to the extent of the further sum of $51.11, Which it is admitted represents principal and accrued interest of a sum included in the note sued on, which was not shown to have ■been used in the payment of valid lien against the property; but plaintiff does not remit its right to a personal judgment against defendant T. L. Blackmon, for the full amount awarded by the trial court

Accordingly, the judgment of the trial court will be reformed as to limit the amount for which the foreclosure of lien was decreed to the sum of $943.75, with interest on that amount from the date of the judgment at the rate specified in the judgment. In all other respects the judgment is affirmed.

On Motion for Rehearing.

Upon original hearing we made a clerical error in computing the amount for which the judgment of the trial court should be affirmed. The two amounts which appellee offered to remit were $82.39 and $51.11, aggregating $133.50. That amount deducted from $1,057.-25, which was the amount of the judgment in the -trial court, leaves a balance of $923.75 instead of $943.75, as stated in the ■ original opinion. Accordingly, our original opinion is so corrected as to reform the judgment of the trial court to the extent that the amount of appellee’s recovery shall be limited to $923.-75, with interest on that amount from the date of the judgment at the rate specified therein, and as so reformed the judgment is affirmed. Appellant’s motion for rehearing on other grounds stated is overruled.
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    GALLASPIE et al. v. HARDY et al.
    (No. 201.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 30, 1917.)
    1. Executors and Administrators &wkey;>33— Settlemi.nt oe Estate — Discharge.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3563, provides that when all the debts known to exist of every kind against the estate of a deceased person -have been paid, the executor or administrator shall present his account for final settlement. Article 3564 prescribes what such account shall show. Article 3565 allows reference to inventories and reports without the restatement of items. Article 3566 provides for the citation of the executor or administrator in case of neglect to file the account. Article 3567 provides that upon presentation of an account for final settlement, the clerk shall issue a citation requiring all persons interested to appear. Article 3568 provides that such citation shall be published for at least 20 days. Article 3569 provides that the county judge may, in addition, order such other notices as he shall deem expedient. Article 3570 provides that at the term of court named in such citation, upon return being made that it has been served in the manner required, the court shall examine the account, and, after hearing, settle the same. Adi administrator rendered his final account for the settlement of an estate, and was discharged by an order entered upon the same day. Held, the 20 days’ notice required by statute not having been given, the order of discharge was void.
    [Ed. Note. — For other cases, see Executors and Administrators, Gent. Dig. §§ 213-222.]
    2. Executors and Administrators <&wkey;314(8) —Settlement oe Estate — Distribution.
    Evidence, in a suit by a distributee of the estate of a decedent, for the delivery of her share brought against the administrator, held not to sustain a finding that a payment by the administrator was in full of plaintiff’s share, the utmost fullness heing required in a hearing for the settlement of the estate by Vernon’s Sayles’ Ann. Civ. St. 1914, art 3571, providing that upon the settlement of an estate, if there be any estate remaining in the hands of the representative, and the heirs or distributees are present or represented in court, the county judge shall order a partition and distribution among them; article 3572 providing that, in the absence of such estate, the personal representative may be discharged by oi-der entered upon the minutes, and article 3573 providing that when the executor or administrator has fully administered the estate, the court shall enter an order discharging him.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1285.]
    Appeal from District Court, Newton County; A. E. Davis, Judge..
    Action by M. J. Gallaspie and another against W. W. Hardy and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    A. L. Sliaw, of Newton, for appellants. Wightman & Hancock, of Newton, for ap-pellees.
   BROOKE, J.

The facts seem to he as follows: W. W. Hardy was duly and legally appointed administrator of the estate of G. J. P. Hardy, deceased, and that he gave bond as administrator in the sum of $5,000, with C. A. Woods, L. M. Autrey, E. O. Terry, and E. J. Newberry, as sureties; that the proceedings had partitioning the said estate were regular; that 17% acres of the William McMahon survey of land, valued at $214.50, also lot No. 2 in block No. 4 of the Hardy addition to the town of Newton, valued at $25, and one chifforobe, valued at $20, and $262.-79 in cash was allotted and decreed by said partition to Mrs. M. J. Gallaspie, as heir and distributee of said estate of G. J. P. Hardy, deceased; that on the 20th day of April, 1916, after the final decree of partition and distribution was entered by the probate court, directing said administrator to deliver the said property and money so allotted and decreed to the said Mrs. M. J. Gallaspie, the said administrator filed his application to be discharged as said administrator, and on the same day as shown by the record, said probate court entered an order and judgment discharging the administrator. The case was tried before the court on the 14th day of September, 1916, and the court rendered judgment for the defendants, from which judgment the plaintiff has perfected her appeal, and the court also filed its findings of fact and conclusions of law, as follows:

“Findings of Fact.
“(1) I find from the evidence and agreement of the parties that W. W. Hardy was duly and legally appointed administrator of the estate of G. J. P. Hardy, deceased, and that the sureties on the bond of said W. W. Hardy as said administrator were G. A. Woods, L. M. Autrey, E. O. Terry, and E. J. Newberry, which said bond was in the sum of $5,000.
“(2) I further find that the county probate court of Newton county, Tex., entered a valid order on the 4th day of April, 1916, directing a partition of the estate of G. J. P. Hardy, deceased, and that a proper writ was issued by the clerk, directing the partition in accordance with said decree; that said partition was properly made and returned into court; that the court entered a proper order approving- said report; that the said W. W. Hardy, administrator, was properly served with citation in the matter of said partition.
“(3) I further find that the property in controversy in this suit, or the value thereof, was set aside to Mrs. M. J. Gallaspie as her portion-of said estate of G. J. P. Hardy, deceased.
“(4) I further find that thereafter, to wit, on the 20th day of April, 1916, the said W. W. Hardy, as administrator, filed in said county court his application to be discharged as said administrator.
“(5) I further find that the county court entered its decree dated April 20, 1916, discharging the said W. W. Hardy, as administrator.
“(6) I further find that said judgment is a valid and subsisting judgment of said court, a court of record having all of the parties before it, and the recitals in said judgment, to the effect that the plaintiff, Mrs. M. J. Gallaspie had received her .share and portion of said estate, based on an attached deed from her and her husband, are valid and binding, and that the same cannot be attacked collaterally.
“(7) I find that the deed executed by the plaintiff, Mrs. M. J. Gallaspie and her husband, T. W. Gallaspie, to W. W. Hardy conveyed all of the right, title, and interest held by the said plaintiff in and to the estate of G. J. P. Hardy, deceased.
“(8) I further find that the said W. W. Hardy did not mislead, defraud, cheat, or in any manner deceive Mrs. M. J. Gallaspie when he procured the deed from her to her portion of said estate of G. J. P. Hardy, deceased, but that said deal was fairly and honestly made, and that it clearly purports the transaction between the parties; all of whom clearly understanding what was being done and agreeing thereto.
“(9) I further find that the consideration for the deed from Mrs. M. J. Gallaspie to W. W. Hardy was $100 in cash and the personal conditional obligation executed by the said W. W. Hardy to Mrs. M. J. Gallaspie, and that said obligation was executed and accepted as the individual act of the said W. W. Hardy, and not as administrator of said estate.
“CIO) I further find that when Mrs. M. J. Gallaspie accepted the personal conditional obligation of the said W. W. Hardy and the $100 and delivered her deed for her interest in said estate, that she parted with all her title to said estate, and had accepted the personal obligation of the said Hardy in lieu of her claim in said estate.
“Conclusions of Law.
“From the foregoing findings of fact, I conclude that the law is with the defendants.”

The contention seems to be that the administrator was improperly discharged among other things because notice was not given as required by law, and also that there was no delivery of the property partitioned to appellants in this case. Article 3563, Vernon’s Sayles’ Texas Civil Statutes of 1914, provides:

“When all the debts known to exist of every kind against the estate of a deceased person have been paid, or when they have been paid so far as the assets of the estate in the hands of the executor or administrator will permit, it shall be the duty of the executor or administrator of such estate to present to the court his account for final settlement of such estate verified by affidavit.”

Article 3564 of said statutes provides:

“Such accounts shall show:
“1. The property that has come into the hands of such executor or administrator belonging to the estate.
“2. The disposition that has been made of any such property.
“3. The debts that have been paid.
“4. The debts and expenses, if any, still owing ’by the estate.
“5. The property of the estate, if any, still remaining on hand.
“6. The persons entitled to receive any portion of such estate, and their residence, if known, and whether adults or minors, and if minors, the names of their guardians.
“7. Any advancements or payments that may have been made by the executor or administrator from such estate to any * * * person.
“8. Said account shall be accompanied by proper vouchers in support of each item thereof, and suc*h account and vouchers shall be filed with the clerk, either in term time or in vacation.”

It was held under the last-named article that an administrator’s account filed and allowed was an intermediate, and not a final, account. Thomas v. Hawpe, 35 Tex. Civ. App. 311, 80 S. W. 129. Article 3565 of said statutes provides:

“It shall be sufficient, under the preceding article, to refer to the inventory without giving each item in detail; also to refer to and adopt report of sales, exhibits and accounts of the executor or administrator, including vouchers which had previously been approved and filed according to law, without restating the items thereof.”

Article 3566 of said statutes provides:

“Should the executor or administrator neglect to present such account, it shall be the duty of the county judge, either of his own motion or upon the complaint of any person interested in the estate, to cause such executor or administrator to be cited to present such account within a time specified in such citation.”

It has been held under this article that after an administrator has filed his final exhibit and report of his administration, which is approved, and the estate is partitioned among those entitled, after being withdrawn from administration, no power exists in the probate court to require the administrator to file an additional inventory, and an order requiring this is void. If the administrator is indebted to the heirs after such final report and close of the administration, and for assets not formerly reported or not accounted for by him, their remedy is by direct proceeding against him. Davis v. Harwood, 70 Tex. 71, 8 S. W. 58. It has also been held under the last-named article that the executor can be compelled to make final settlement by the probate court upon the application of any person interested in the estate. The district court cannot take such jurisdiction when the probate court is open and qualified to act. McCorkle v. McCorkle, 60 S. W. 435. It has also been held that the mere lapse of time without action by the court in an administration will not relieve the administrator from being called to account in the probate court. Main v. Brown, 72 Tex. 505, 10 S. W. 571, 13 Am. St. Rep. 823. Article 3567 of said statutes provides:

“Upon the presentation of an account for final settlement, it shall be the duty of the clerk to issue a citation, which shall state the presentation of said account, the term of the court when it will be acted on, and shall require all persons interested to appear and contest the same if they see proper.”

Article 3568 Id., provides:

“Such citation shall be published for at least twenty days in a newspaper printed in the county, if there be one, if not then by posting such notice at the court house and at two other public places in the county, not in the same town or city for at least twenty days. . When the citation has been published, the affidavit of the publisher or printer attached to a copy thereof, that the same has been published for at least twenty days, shall accompany the return of the officer who executes such citation. When the citation has been posted, the original citation, with the return of the officer posting the same indorsed thereon or attached thereto, shall be filed.”

Article 3569 of said statutes provides:

“In addition to the citation required in the two preceding articles, the county judge may order such other notice to be given as he shall deem expedient, by an order entered upon the minutes of the court.”

Article 3570 Id., provides:

“At the term of court named in such citation, or at some subsequent term to which the same has been continued, upon return being made that citation has been served in the manner required, it _ shall be the duty of the court to examine said account and the vouchers accompanying the same, and after hearing all exceptions and objections thereto, and the evidence that may be offered in support of or against such account, to restate said account, if necessary, and audit and settle the same.”

The statutes being as above, the action of the court, as stated heretofore, being that the final account was filed and presented on the 20th day of April, and that on the same date, the order was entered by the probate court discharging the administrator. The said order is complained of by the first assignment, as follows:

“The court erred, in the first portion of its sixth finding of fact, to the effect that the decree dated April 20, 1916, discharging the said W. W. Hardy as administrator to be valid and subsisting judgment of said court, for the reason that the evidence adduced upon the trial was insufficient to warrant the finding of the court to that effect, because by the undisputed evidence it was shown that the judgment discharging the said W. W. Hardy as administrator to be void, for the failure of filing the application for final settlement and discharge, the issuance of citation by the county clerk, and return thereon within the statutory time before the hearing of said application and the judgment rendered thereon.”

The proposition is that the judgment was void which was entered under such circumstances by the probate court, and therefore that the order entered on the 20th day of April, 1916, discharging the said W. W. Hardy as administrator of the estate of G. J. P. Hardy, deceased, was void. The contention of appellant is sound. The articles heretofore set out require, in plain language, that upon the filing of the final account, notice be given for a specified time and in a specified way, and that after such notice, as required by law, has been given, that the administrator can then be discharged. It is contended with more or less candor that the fact that on the 20th day of April, 1916, the appellant was, in fact and in truth, in the courthouse and present in proper person before the court, such contention, cannot be made seriously, and, if made seriously, would be a monstrous proposition. To say a party was in the courthouse and therefore, within the purview of the law, present, and that a judgment under such circumstances, entered without objection being made by the party, would be binding, would be, to say the least of it, frivolous, and to contend that the party present in the courthouse and in actual view of the court was participating, or could be held to be so, when the party had not been cited ás required by law, and would be bound by the judgment of a court made and entered under such circumstances, is unthinkable. We are of opinion that the probate court in this case was without authority to enter such a judgment, discharging the administrator, and that the judgment so entered is void.

It seems in this case that the appellant is complaining that, although the property was partitioned to her, the administrator failed and refused to deliver her the property, for the reason that soifie sort of a written agreement in shape of deed had been entered into by which the. administrator had paid $100 to the appellant, and by some further written agreement it had been stipulated that upon certain events the administrator was to pay the appellant certain other sums. We desire to say that this court will not look, with any degree of complacency, upon a settlement, or proposed settlement, had between an administrator and a distributee, without the same has been fully gone into, without there is a full and complete understanding between the parties as to what shall be received, without the distributee fully understands the nature and extent of the act and of the agreement or contract entered into, and the court, in this case, before there should be a discharge of the administrator, should fully inquire into the circumstances surrounding the alleged settlement between the administrator and the appellant. It should be ascertained by the court that the appellant fully understood and agreed to any alleged settlement, and that the settlement was agreed to with a full understanding as to the rights of appellant in the premises. The appellant, as shown by the record, testified:

“My name is M. J. Gallaspie. I am married. My husband is T. W. Gallaspie. I am one of the surviving heirs'of G. J. P. Hardy, Jr., deceased. My husband and I are the plaintiffs in this suit, and brought the suit to force W. W. Hardy, administrator of the estate of G. J. P. Hardy, Jr., deceased, to pay over to me my portion of the estate, partitioned to me, by the commissioners of partition. I was in the probate court the day the partition and distribution was made, and the other heirs received their portion of the said estate. On same date I gave A. L. Shaw a written order on W. W. Hardy, administrator of the estate of G. J. P. Hardy, Jr., deceased, for my 'portion of the estate. This is the order I gave Mr. Shaw, dated April 20, 1016: ‘April 20, 1916. W. W. Hardy, Administrator of the Estate of G. J. P. Hardy, Jr., Deceased, as Appointed by the Probate Court of Newton County, Texas: Pay to A. L. Shaw, my attorney, in the above matter, the sum of $262.79, two hundred and sixty-two dollars and seventy-nine cents, less the amount heretofore paid to me by you, being $100, making due me the sum of $162.79, as my portion of the money belonging to the estate of G. J. P. Hardy, Jr., deceased, with the real and personal property allotted me as a distributee of said estate, as is fully shown by the decree of the district court certified to the probate court for observance as well as the report of the commissioners appointed to partition said estate, and other papers filed in the probate court in said cause. You may hold this as a receipt for the authority of paying said amount to the said A. L. Shaw. [Signed] M. J. Gallaspie.’ I have not received anything from W. W. Hardy, administrator' of the estate of G. J. P. Hardy, Jr., deceased, since giving Mr. Shaw the order on W. W. Hardy. I have not received anything since the first time, the $100. The $100 he gave me at the time I signed the papers up for him, understanding if the rest of the heirs of G. J. P. Hardy got more than that he was giving me, then I was to have what the rest got. He gave me the $100 and told me to sign the paper for him. I don’t know what kind of instrument it was, and said he would give me that much then, and if the rest of the heirs got any more than he was giving me then, I was to have as much as them, no matter how much it was. I received $100, is what I received under the agreement, that I should have what the rest got, which was put in writing. I haven’t received anything since the order was made on W. W. Hardy, administrator of said estate, and delivered to Mr. A. L. Shaw. Yes, I executed a deed to W. W. Hardy, and at the execution of the deed he gave me a writing, as an agreement. Yes, this is the instrument, it was delivered to me at the time the deed was made, at the house of defendant, W. W. Hardy.”

The instrument introduced in evidence was as follows:

“Newton, Texas, Apr. 3, 1913.
“The undersigned agrees, if there is a suit entered in the estate of G. J. P: Hardy, Jr., and the other heirs gain any sore than the said M. J. Gallaspie is now receiving, she is to have as much as they get after the expense of obtaining same, and if no suit is entered this is void and finished.
“[Signed] W. W. Hardy.
“Witness:
“Mary R. Hardy.”

Witness continued:

“This agreement was delivered to me at the time the deed was made, and delivered to me by W. W. Hardy at his house in the presence of his wife and two daughters. Yes, Hugh Hardy talked to me a right smart about the deed and agreement at the time I received the $100. He understood the conditions of the transaction between W. W. Hardy and I.”

A. L. Shaw testified:

“I was employed by Mrs. M. J. Gallaspie to recover her interest in the estate of G. J. P. Hardy, Jr., deceased, as decreed to her in the partition of said estate by the probate court, and on the 20th day of April, A. D. 1916, Mrs. Gallaspie delivered to me the order identified by her on W. W. Hardy, administrator of the estate of G. J. P. Hardy, Jr., deceased, for her portion of the estate, as described in the partition to the said M. J. Gallaspie, and on the 20th, day of April, A.- D. 1916, in person, presented to W. W. Hardy, the said administrator, the written order for the property or value thereof, which was after final decree of partition and distribution of the said estate in the probate court, and he said that he would not settle, and that he did not want to hear another damned thing about it.”

Mrs. Gallaspie further testified:

“Tes, I delivered the deed to W. W. Hardy at the time X received the agreement executed by him. Yes, it was the same day. I do not know how much the other heirs received of the estate of G. J. P. Hardy, Jr., deceased, that were entitled to receive the same amount. I saw a check of a sister of mine, Mrs. McWil-liams, for $174. I do not know how much they received.”

And further:

“W. W. Hardy said he would give to me the '$100 then to sign the deed, and. later if any of the other heirs received any more from the estate of G. J. P. Hardy, Jr., deceased, than he gave me at that time, I was to have as much as any of them. I don’t think he, told me that my portion of the estate would be worth $100, or practically worthless. I think he said it would not be worth any more than $100, but he said I was to have as much as any of the heirs. Yes, he assured me that I should have as much as any of the other heirs. Yes, he was administrator of the estate of G. J. P. Hardy, Jr., deceased, at the time I received the $100, and delivered to him the deed, and he delivered to me the agreement. I don’t remember what was said by W. W. Ha-rdy about the estate being worthless, or practically worthless. I think maybe he did, I don’t know; he said I should have as much as the rest of the heirs;' that is the best of my recollection; that is all he promised. He was at my house, and Xlugh Hardy was with him, and not at his home, when he promised me that he would sell his home place and everything, or I would be paid as much as the rest of the heirs out of the estate of G. J. IP. Hardy, Jr., deceased, and I came to his home in Newton, Tex., and signed the papers for him. Yes, I believed the representations he made to be true. I thought W. W. Hardy and Hugh Hardy would do exactly what they said they would. Why, certainly, I acted upon the representation made me by W. W. IXardy. I believed every word he told me. X thought he would do what he said he would. I have always bad the utmost confidence in him. Up to this time he has not carried out his agreement'; he hasn’t given me more than the $100 I received at the date'I executed the deed to W. W. Hardy. Yes, I stated this morning that the agreement is the instrument W. W. Hardy gave me at the time I signed the deed. Why, I never read it over ; I hoard what he said. This reads (by attorney): ‘The undersigned agrees, if there is a suit entered in the estate of G. J. P. Hardy, Jr., and the other heirs gain any more than the said M. J. Gallaspie is now receiving.’ (That is you? By Mrs. M. J. Gallaspie: Yes, sir.) ‘She is to have as much as they get after the expense of obtaining same, and if no suit is entered this is void and finished. [Signed] W. W. Hardy.’ it is witnessed by Mary R. Hardy, Yes, that is the instrument he gave me that day. Yes, sir; his wife signed it. I understood it. He told his wife and girls I was to get as much as the other heirs, and, if they didn’t get any more, I have that much; that is the truth, and nothing but the truth. I suppose that the suit to be brought, mentioned in the agreement, was the suit brought by the other heirs, my brothers and sister; they were going to bring suit against W. W. Hardy, administrator of the said estate, for their portion of the G. J. P. Hardy, Jr., estate. They would not sign a paper of $100; they brought suit against W. W. Hardy, administrator of the estate of G. J. P. Hardy, Jr., deceased. They certainly brought suit against him.. I do not know how much they recovered, but they recovered more than I received. The suit was brought here, in Newton. Yes, it was brought after the deed and the agreement was signed and delivered.. Suit was brought by Mrs. McWilliams. I really don’t know whether a brother of mine, T. C. Hardy, had anything to do with bringing the suit or not. X know my sister did. I think she was the one that entered suit; that was my understanding, while I know very little about it.”

There seems to have been an instrument in the form of a warranty deed conveying to the said administrator whatever interest the appellant had in said estate. Article 3571, Vernon’s Say les’ Tex. Oiv. St. provides:

“Upon a settlement of an estate, if there is any of the estate remaining in the hands of the executor and administrator, and the heirs, dev-isees, or legatees of the estate, or their assignee, or either of them, are present or represented in court, it shall be the duty of the county judge to order a partition and distribution of the es--tate to be made among them, upon satisfactory proof being made that they are entitled to receive it.”

Of course this article follows after and is based upon the fact.that notice has been given, as theretofore required in the preceding articles. Article 3572 provides:

“If, upon such settlement, there [shall] be none of the estate remaining in the hands of the executor or administrator, he shall be discharged from his trust by an order of the court entered upon the minutes, and such order shall declare said estate closed.”

And article 3573 provides:

“Whenever in any case the executor or administrator has fully administered the estate in accordance with the provisions of this title, and in accordance with the order of the court, and has filed proper vouchers, it shall be the duty of the court to enter upon the minutes an order discharging said executor or administrator from his trust and declaring said estate to be closed.”

As heretofore stated, the utmost fullness should be had in the hearing of the testimony with reference, in this and all other cases, to the winding up of an estate, and the discharge of the administrator, and we may say that the utmost liberality and fairness must be shown on the part of the administrator with reference to his dealings with the distributees of the estate. In the present case, as has been hereinbefore stated, there seems at least to have been and to now be a misunderstanding as to what was the real intent of the parties, and what was the agreement between the parties with reference to what should be paid and what should be received on a final settlement of said administration.

From what has been said, it will be seen that upon proper and legal notice having been given, as required by the law, the probate court should go into the matters stated fully, and determine whether or not there was, at the time of the alleged settlement, a full understanding of the whole matter by all parties concerned, and, if not, that before the administrator be discharged, there be had a full and fair adjustment and settlement between appellant and the said administrator.

Erom what has been said, the case will necessarily have to be reversed and remanded, and certified to the probate court of Newton county for observance, in accordance with this opinion. As stated above, the judgment of tlie probate court was void, because not based upon notice, as required by tbe statute.

Reversed and remanded.
      <§=s>For other cases see same topic and KEY-NUMBER in all Key-Nunibered Digests and Indexes'


author: CONNER, C. J.

text:
    FT. WORTH & R. G. RY. CO. v. BIRD.

    (No. 8590.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 21, 1917.
    Rehearing Denial May 26, 1917.)
    1. Master and Servant <&wkey;259(4) — Action eor Injuries — Statute.
    A petition in an action for death of a railroad engine inspector due to the negligence of a fellow servant to the defendant’s knowledge in leaving explosive oil in a receptacle to which deceased had resorted in order to fill a lamp or torch stated a cause of action under Rev. St. 1911, art. 4694, stating when actions for injury resulting in death may be brought.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 840.]
    2. Limitation oe Actions &wkey;>127(15) — Tbial Amendment — Consteugtion—Statement oe New Cause oe Action.
    In an action under Rev. St. 1911, art. 4694, for the death of a railroad engine inspector due to the negligence of a fellow servant in storing explosive oil in receptacles to which deceased had resort, a trial amendment filed more than two years after the commencement of the cause of action, seeking for the first time to recover under Employers’ Liability Act, April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, § 8657), and alleging that prior to such time plaintiff had not known that the deceased was engaged in interstate commerce, set up a new cause of action which was barred by the two-year statute of limitations, under the federal Employers’ Liability Act and the Texas statute, since under the Texas statute plaintiff would not have been entitled to recover for injuries proximately caused by the negligence of a fellow servant, but under the federal Employers’ Liability Act such defense was not available, and hence the defense in the two causes of action were not the same, and there was a clear departure from the differing laws of one sovereignty to those of another.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 545.1
    3. Couets <&wkey;97(5) — Decisions oe Otheb COUBTS AS CONTROLLING — FEDERAL EMPLOYERS’ Liability Act.
    In an action brought under the federal Employers’ Liability Act, constructions given the act and proceedings thereunder by the federal court are controlling.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 332.]
    4. Master and Servant &wkey;>256(l) — Injuries to Servant — Petition—Construction.
    In an action for death of a railroad engine inspector, allegation of the petition that the defendant company “was a part of the F. system” was not sufficient to point out the fact that the deceased was employed in interstate commerce, in the absence of allegations that the engines which defendant was under duty to inspect were engaged or about to be engaged^ or had just been engaged in the transportation of commerce to or from the state of Texas, or that such engines had at any time been engaged in interstate commerce or were intended for such use in the future.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 809.]
    5. Master and Servant <&wkey;256(l) — Injuries to Servant — Petition—Construction.
    In an action for death of a railroad engine inspector, allegation that, the defendant was a part of the Frisco System didi not sufficiently point out the fact that deceased was employed in interstate commerce, where the allegations showed that the defendant was a distinct legal entity, without showing the details of its connection with the Frisco System or that its function in such system is to furnish instrumentalities or transportation in interstate commerce, or that the deceased was at the time of the injury resulting in his death actually engaged in interstate commerce.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 809.]
    Error from District Court, Tarrant County; Marvin H. Brown, Judge.
    Action by Mary Bird against tbe Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    Lockett & Rowe, of Ft. Worth, for plaintiff in error. McLean, Scott & McLean and Odell & Turner, all of Ft. Worth, for defendant in error.

      Application for writ of error pending in Supreme Court.

   CONNER, C. J.

Appellee, as executrix, recovered a judgment for the sum of $3,500 as damages for the death of her husband, Joseph Bird. The trial and judgment was under the federal Employers’ Liability Act of April 22, 1908 (35 Stat. at L. 65, c. 149 [Comp. Stat. 1916, § 8657]). Both by exception to the petition upon which the trial proceeded and by plea, the appellant presented the two-year statute of limitation prescribed by the act referred to, and whether this plea was well taken is the vital question presented on this appeal.

Upon the original institution of the suit, which was on March 21, 1913, the plaintiff sued in her individual capacity for herself an'd for the use and benefit of Walter G. Bird and Mrs. Joe B. Hines, children of the plaintiff and the said Joseph Bird. In the original petition as then instituted the allegations, omitting all averments not necessary to an understanding of our conclusions, were that:

“The defendant is a railway corporation, duly incorporated under the laws of the state of Texas, and constitutes part ot the system of railway lines known and designated as the St. Louis & San Francisco Railway Company of Texas, and also as the Frisco System, which said Ft. Worth & Rio Grande Railway Company owns and operates a line of road into and through the county of Tarrant.”

It was further alleged:

That Joseph Bird was an employ é of the defendant company, and that while “engaged as an engine inspector and in the work of getting engines in proper condition to be carried out of said yards, and in the performance of said work, it was necessary for him to use a torch for the proper performance of his work, and in order that he might be able to thoroughly inspect all parts of the engines under his care.”

It was further charged:

That while engaged in the performance of his duty of inspecting engines in the yards of the defendant, and while using a lamp or torch provided for his use by the defendant, “said lamp * * * exploded, and by said explosion he was terribly burned about the head, face, body, and limbs, internally and externally, and from the effects of- which, he died soon after said explosion.”

It was further alleged:

That the “said explosion was occasioned by reason of improper oil, or other liquid, being put in said lamp for the purpose of furnishing light, and that said improper material so placed in said lamp or torch was put there and was there without the knowledge of Joseph Bird; that said lamp, or vessel in which said material was placed should have been filled with what is known in the railroad service as signal oil, that being a nonexplosive oil; that, instead of said quality of oil being put in said lamp or vessel, an explosive oil had been put there, through the negligence of defendants and some of its em-ployés, without the knowledge of said Joseph Bird, and which said improper explosive oil caused the explosion which was the proximate and direct cause of Joseph Bird’s death.”

Plaintiff further alleged:

That she was not “informed or advised as to what particular kind of explosive oil was in said lamp at the time of said explosion, but she alleges that it was an explosive oil and dangerous and improper for said use, and its presence in said lamp or vessel was the result of gross negligence upon the part of defendant and its employés who caused and permitted said explosive oil to be put in said lamp or vessel.”

The negligence alleged was charged to have been the proximate cause of the death of Joseph Bird.

On April 15, 1914, the plaintiff filed her “first trial amendment,” amending her “original petition.” The trial amendment purported to set forth with greater particularity than had theretofore been done the manner in which the alleged injuries arose. It was charged:

That while in the discharge of his duty, it “became and was necessary for the deceased * * * to refill” the lamp he was using with oil, to the end that he might have light, and that in refilling the torch it “was the custom, and customary with the deceased and others, to go to lockers kept in the roundhouse of the defendant for its various employés, and in said lockers it was and had been the custom, for a long period of time to keep coal, kerosene, or signal oil for the purpose of being used in refilling torches to afford light,” which oil “was always of a nonexplosive character, such as coal, kerosene, and signal oil”; that, while in the exercise of ordinary care and, prudence for his own safety, it was the custom of the deceased when the oil in his torch became low or exhausted to go to the locker to refill his torch, and that on the occasion in question, his torch became so exhausted, and thereupon, as he was accustomed to do, he “went to one of the lockers kept by the defendant and by its employés for that purpose, where was a can of oil, and where such can of oil and oil to replenish torches was usually and ordinarily kept, and while undertaking to fill his torch from said can of oil so kept, and while in the belief that same was coal, kerosene, or signal oil and oil of a nonexplosive character, he, the deceased, undertook to refill his torch, and did refill the same, wholly or in part, from said can of oil so kept.”

It was then alleged:

That the can of oil out of which deceased was undertaking to fill his torch “was an explosive oil of an exceedingly dangerous character, wholly improper for use in connection with torches, lanterns, or lights, being as these plaintiffs believe, gasoline, or some other equally dangerous and highly explosive character of oil.”

It was accordingly charged:

“That the defendant, its servants and em-ployés, were guilty of negligence and gross negligence in placing or causing to be placed in said oil can kept in said lockers, as aforesaid, said gasoline or other highly explosive or dangerous character of oil, and that this negligence on the part of the defendant, its servants and employés, in keeping, or permitting to be kept, said oil can in said lockers containing said dangerous and explosive oil as aforesaid, was the direct and proximate cause of the injuries resulting in the death of deceased, but for which said accident would not have happened, and the damages herein sued for have been occasioned to plaintiffs.”

The record discloses no further action in the case necessary to notice until on April 17, 1915, when the plaintiff filed an amended petition for the first time asserting the right of recovery as administratrix of the estate of Joseph Bird, deceased. In this amendment it is alleged:

“That plaintiff filed this suit, as shown by her original petition, on the 21st day of March, 1913; that in the defendant’s first amended original answer filed in this cause on the 15th day of April, 1914, it was suggested; by defendant, and by the pleadings for the first time, and for the first time known to plaintiff, that the deceased, Joseph Bird, was engaged in interstate commerce at the time of his injury; that said facts were no't known to plaintiff prior to said time, but the same were and had all of the time been well known to the defendant.”

It was then further alleged that thereafter the plaintiff had made application to the county court of Tarrant county, and on the 3d day of June, 1914, had been appointed ad-ministratrix of the estate of Joseph Bird, and that the plaintiff bad in all things qualified as such. The further allegations of the amended petition, which was the one upon which the trial proceeded, were substantially as in previous pleadings of the plaintiff, except that it was further alleged:

That at the time of the accident and injury to Joseph Bird the deceased “was engaged, as was also the railway company, in interstate commerce,” wherefore “plaintiff brings this suit under and in conformity with an act of Congress of April 22, 1908, and the amendments thereto, commonly known, and referred to as the federal Employers’ Liability Act.”

The irresistible conclusion, as it seems to us, to be drawn from the pleading of the plaintiff filed prior to her amendment of April 17, 1915, is that her action was brought under the Texas Statute (Revised Statutes 1911, art. 4694) as it existed and was construed prior to the amendment by act approved April 7, 1913 (General Laws 1913, p. 288). If, therefore the amended petition of the plaintiff filed April 17, 1915, amounted to an abandonment of her original cause of action, and to the setting up of a new and distinct cause or right of recovery, it is clear that the defendant’s plea of limitation was well taken. For in such case, under the.federal Employer’s Liability Act, the plaintiff’s cause was barred two years from the death of deceased, which was, as alleged and shown, on October 11, 1911, and this in effect is conceded by appellee. By statute our courts' are permitted to authorize the amendment of pleadings upon such terms as the court may prescribe, hut it is not always easy to determine just when an amendment sets up a new cause of action. On this subject our Supreme Court, in the case of Lumber Co. v. Water Co., 94 Tex. 456, 61 S. W. 707, says:

“Four tests are laid down by which to determine the identity of causes of action: (1) Would' a recovery had upon the original bar a recovery under the amended petition? (2) Would the same evidence support both of the pleadings? (3) Is the measure of damages the same in ■each ease? (4) Are the allegations of each subject to the same defenses? - 1 Am. & Eng. Enc. of Pleading and Practice, p. 556. We are of •opinion that the second and last furnish the best tests by which to determine tne matter before us, and we can safely say that, if the same testimony would not support the allegations in each -of these pleas, and if the same defenses could not be interposed to each of them, they are not identical, and therefore the amended petition presents a new cause of action” — citing McLane v. Belvin, 47 Tex. 493; Bigham v. Talbot, 63 Tex. 271; Railway v. Pape, 73 Tex. 502, 11 S. W. 526; Railway v. Scott, 75 Tex. 84, 12 S. W. 995; Boyd v. Beville, 91 Tex. 439, 44 S. W. 287; Cotton v. Rand, 93 Tex. 24, 51 S. W. 838, 53 S. W. 343; Whalen v. Gordon, 95 Fed. 314, 37 C. C. A. 70; Scovill v. Glasner, 79 Mo. 449.

In the case of Union Pacific Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, the Supreme Court of the United States in considering whether an amended petition presented a new cause of action, said:

“The legal principles by which this question must be solved are those which belong to the law of departure, since the rules which govern this subject afford the true criterion by which to determine the question whether there is a new cause of action in case of an amendment. In many of the states which have adopted the Code System great latitude has been allowed in regard to amendment; but even in those states it is held that the question of what constitutes a departure in an amended pleading is nevertheless to be determined by the rules of common law, which thus furnish the test for ascertaining whether a given amendment presents a new cause of action even although it be permissible to advance such new cause, by way of an amendment.”

The court thereupon quotes from Coke upon Littleton, Comyn’s Digest, Stephen, Gould, Sanders, and Chitty on Pleading, all giving definitions or illustrations of what constitutes a departure in pleading. The following quotations from Chitty and Stephen on Pleading will illustrate the authorities cited by the court: Thus Chitty says:

“A departure may be either in the substance of the action or defense or the law on which it is founded; as if a declaration be founded on the -common-law, and the replication attempt to -maintain it by a special custom, or act of Parliament.”

Stephen thus states the principle:

“These, it will be observed, are cases in which the party, deserts the ground, in point of fact, that he had first taken. But it is also a'departure, if he puts the same facts on a new ground in point of law; as if he relies on the effect of the common law, in his declarations, and on a custom in his replication, or on the effect of the common law in his plea, and a statute in his rejoinder.”

A consideration of the cases cited constrains us to hold that the amended pleading of the appellee in this case filed on April 17, 1915, set up a new cause of action which was barred by the two-year statute of limitation, not only, as stated, by the federal Employers’ Liability Act, but also under the Texas statute on the • subject. Considering the plaintiff’s original petition and all amendments prior to the one upon which the trial proceeded, it seems evident that the plaintiff sought to maintain her action under the Texas statute as it existed prior to the amendment of 1913; for in all previous pleadings the negligence of the appellant company in permitting the storage of explosive oil in receptacles to which the deceased resorted id relied upon. It was alleged, in substance, that the negligent storing of such oil was known to the appellant company, and that it constituted negligence to so permit the explosive oil to be stored, and the plaintiff particularly alleges in the amended petition, as we have shown by the quotation .therefrom, that prior thereto she had been without knowledge of the fact that the deceased was engaged in interstate commerce. This allegation makes it evident that the pleader in framing the original pleadings did not rely upon, nor have in mind a resort to, the federal Employers’ Liability Act. Unquestionably, therefore, both by the test as given by our own Supreme Court and by the rule as applied and illustrated by the Supreme Court of the United States in the decision that we have cited, the plaintiff’s amended petition upon which the recovery was had set up a new cause of action. Upon the? trial of the case it was distinctly shown by the evidence that the can of explosive oil, sufficiently shown to be gasoline, out of which the deceased was attempting to replenish his lamp at the time of the explosion, was placed in the locker to which the deceased repaired for the purpose by a fellow servant. There was and is no evidence sufficient to support the conclusion that such can of gasoline had been placed in the locker by any agent or employé of the railway company having control and whose negligence, could be said to be the negligence of the master, nor is there any evidence that suc-h can of gasoline after having been placed in the locker by a fellow servant of deceased had remained there for such tíme and under such circumstances as to authorize the conclusion that the defendant company, or any alter ego thereof, either knew, or in the exercise of ordinary care ought to have known, the fact that the gasoline had been so stored. The evidence also wholly fails to show any other occasion upon which gasoline had been found In the lockers to which the inspectors or employes were in the habit of resorting for the purpose of replenishing their lamps. On the contrary, the evidence stows that the particular can used by the deceased at the time was seen for the first time, and that only by another fellow servant of Joseph Bird’s, so far as the record shows, on the evening of the day before and on the morning preceding the accident. In brief, the evidence wholly fails to show negligence chargeable to appellant under the Texas statute and decisions. It thus appears that under our statute and the original allegations and the evidence the defendant would have had a perfect defense, to wit, that the negligence which proximately caused the injury and resulting death of Joseph Bird was not that of the defendant, but of fellow servants. Under such pleadings and evidence the plaintiff would not have been entitled to recover, but this defense of negligence on the part of the fellow servant was not available under the federal Employers’ Liability Act; that act specifically creating a liability for injuries caused by the negligence of a servant as well as for those caused by the negligence of the master. It thus clearly appears that the amended pleadings and the previous pleadings were not subject to the same defenses, and that there was a clear departure of pleading from the differing laws of one sovereignty, the state, to those of another, the United States.

We are not unmindful of the cases of M., K. & T. Ry. Co. v. Sallie C. Wulf, 226 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134, and Seaboard A. L. R. Co. v. Renn, 241 U. S. 290, 36 Sup. Ct. 567, 60 L. Ed. 1007. In the. first of these cases it was held, in substance, that a mere change of capacity on the part of plaintiff to 'sue would not bar the plaintiff’s right to recover, the plaintiff having first sued in her individual capacity, and more than two years thereafter having by amendment attempted to prosecute her suit under the federal Employers’ Liability Act as executrix. It was held, as stated, that the amendment was permissible ; that it related back to the time of the institution of the original suit so as to prevent the toll of the statute. In so ruling, however, the court, among other things, said:

“ * * * Aside from the capacity in which the plaintiff assumed to bring her action, there is no substantial difference between the original and the amended petitions. In the former, as in the latter, it was sufficiently averred that the deceased came to his death through injuries suffered while he was employed by the defendant railroad company in interstate commerce, that his death resulted from the negligence of the company and by reason of defects in one of its locomotive engines, due to its negligence, and that, since the deceased died unmarried and childless, the plaintiff, as his sole surviving parent, was the sole beneficiary of the action. It is true the original petition asserted a right of action under the laws of Kansas, without making reference to the act of Congress. But the court was presumed to be cognizant of the enactment of the Employers’ Liability Act, and to know that, with respect to the responsibility of interstate carriers by railroad to their employes injured in such commerce after its enactment, it had the effect of superseding state laws, upon the subject [citing cases]. Therefore the pleader was not required to refer to the federal act, and the reference actually made to the Kansas statute no more vitiated the pleading than a reference to any other repealed statute would have done.”

The court further observed that:

The change in pleading was “in form rather than in substance [citing cases]. It introduced no new or different cause of action, nor did it set up any different state of facts as the ground of action, and therefore it related back to the beginning of the suit [citing cases].”

The case of Seaboard A. L. R. Co. v. Renn,. supra, was an action of an employs of a railroad company to recover from the latter for personal injuries suffered through its negligence. The court, in the statement of the case says that:

“The original complaint was exceedingly brief, and did not sufficiently allege that at the time of the injury the defendant was engaged and the plaintiff employed in interstate commerce.”

After the expiration of two years, the plaintiff was permitted to amend his petition so as to state distinctly the defendant’s engagement and the plaintiff’s employment in such commerce. The court says:

“If the amendment merely expanded or amplified what was alleged in support of the cause of action already asserted, it related back to the commencement of the action, and was not affected by the intervening lapse of time [citing cases]. But if it introduced a new or different cause of action, it was the equivalent of a new suit, as to which the running of the limitation was not theretofore arrested.”

As to this the court then saysc

The “original complaint set forth that the defendant was operating a line of railroad in Virginia, North Carolina, and elsewhere; that the plaintiff was in its employ; that when he was injured he was in the line of duty and was proceeding to get aboard one of the defendant’s trains; and that thei injury was sustained at Cochran, Va., through the defendant’s negligence in permitting a part of its right of way at that place to get and remain in a dangerous condition.”

As to this the court then says:

“Of course, the right of action could not arise under the laws of North Carolina when the causal negligence and the injury occurred in Virginia; and the absence of any mention of the laws of the latter state was at least consistent with their inapplicability. Besides, the allegation that the defendant was operating a railroad in states other than Virginia was superfluous if the right of action arose under the laws of that state, and was pertinent only if it arose in interstate commerce, and therefore under the act of Congress. In these circumstances, while the question is not free from difficulty, we cannot say that the court erred in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of Congress. And, this being so, it must be taken that the amendment merely expanded or amplified what was alleged in support of that cause of action, and related back to the commencement of the suit, which was before the' limitation had expired.”

We should, also perhaps notice one of our own cases, viz. that of the Ft. Worth Belt Ry. v. Jones, 182 S. W. 1185, not cited by any of the parties herein. That case as originally instituted arose under Revised Statutes, art.. 4694, requiring allegation and proof of negligence on the part of the master, as contra-distinguished from that of a fellow servant, and more than two years thereafter an amended petition was filed for the first time setting up negligence on the part of a fellow servant, because of which, under another Texas statute (Revised Statutes, art. 6640), the master was liable. With much difficulty we held that the amendment did not set up a new cause of action. But by a reading of the opinion it will be seen that it was established ■by the verdict that the cause of action did not arise under the federal Liability Act, and that in our ruling we merely and hesitatingly followed Texas decisions, which could only involve a construction of Texas statutes and procedure.

The case now before us, however, without dispute, is one founded on the act of Congress, and constructions given the act, and of proceedings thereunder, by the federal courts, are controlling.

We have referred with perhaps- unnecessary particularity to the strongest cases upon which reliance can be had in support of the judgment, but, as it seems to us, these cases are all distinguishable from the one we now have under consideration. It will be observed that in our conclusions we place no reliance upon the mere fact that the appellee in this case, by her amendment, merely changed the capacity in which she sued. The only expressions in appellee’s original pleadings relied upon as “pointing out” what she alleged in her amended petition, and which upon the trial was conceded to be the fact, that the deceased was engaged in interstate commerce, are the allegations of the character of the deceased’s employment, and that the defendant company, the Et. Worth & Rio Grande Railway Company, incorporated under the laws of the state of Texas, constituted a “part of the system of railway lines known and designated as the St. Louis San Francisco Railway Company of Texas, and also known as the Frisco System-.” There is no allegation that the engines, to inspect which it was the duty of the deceased to do, were engaged or about to be engaged, or had just been engaged, in the transportation of commerce to or from the state of Texas, or that at any time such engines ever had been engaged in interstate commerce, or were intended for such use in the future. Nor is it alleged that the railway line of the defendant company extended beyond the limits of the state of Texas. The allegations that the defendant company was part of the Frisco System by no liberality of construction, as it seems to us, can be held to sufficiently “point” to the fact that the deceased was employed in interstate commerce. It was certainly not so intended, as we have before mentioned, and the allegations as a whole are consistent with a right to recover under the state law, and-inconsistent with the right to recover in the capacity sought under the federal Employers’ Liability Act, 'and fully sufficient to anticipate and defeat the defense arising from the facts as developed on the trial that the death of deceased was caused by the negligence of a fellow servant.

Moreover, the allegations show that the defendant railway company has a distinct legal entity of its -own. In what way or under what circumstances, or agreements, if any, it operates ais a part of the Frisco System, is not suggested iu the pleadings. We cannot, therefore, say from the allegations that its function in the system is to furnish instrumentalities or transportation in interstate commerce, and certainly cannot say that the deceased at the time, of the injuries resulting in his death was then actually- engaged in interstate commerce so as to entitle his legal representatives to recover under the federal Employers’ Liability Act. That it must be so shown even in oases where it is affirmatively pleaded that the carrier is engaged in interstate commerce must be conceded toy a consideration -of the authorities relating to the subject See Richey’s Federal Employers’ Liability, Safety Appliance Acts (2d Ed). § 34 et seq., and the recent case of Raymond v. Chicago, M. & St. P. R. Co. by the Supreme Court of the United States, and published in the Advance Sheets of April 1, 1917, 243 U. S. 43, 37 Sup. Ct. 268, 61 L. Ed. -, with the United States cases therein cited.

On the whole, therefore, we conclude, as before indicated, that the defendant’s plea of limitation is sustained by the record, and that accordingly the judgment below must be reversed, and here rendered tor appellant. This conclusion renders it wholly unnecessary for us to consider other questions presented in the record.

Judgment reversed, 'and here rendered for appellant.
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text:
    WOOTEN v. TEXAS BITULITHIC CO. et al.
    (No. 8640.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 12, 1917.)
    1. Municipal Cobpobations <&wkey;567(l)—Action ON IMPKOVEMENT CeBTIPICATE—PLEAD-ING—Petition—Statute.
    Charter of City of Ft. Worth, c. 12, § 15 (Special Acts 31st Leg. c. 31), providing that the recital in improvement certificates authorized by the charter that the improvements have been made in compliance with the terms thereof, and that all prerequisites to the fixing of the lien and charge of personal liability evidenced by such certificates have been performed, shall be prima facie evidence of the facts so recited, and no other proof thereof shall be required, but in all courts the said proceedings and prerequisites shall, without further proof, be presumed to have been had and performed, relates to proof only, and does not relieve the owner of a certificate from proper pleadings to show liability on the part of the owner of the property.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1276.]
    2. Pleading <&wkey;433 (2) — Verdict as Cure oe Defect in Petition.
    In an action on an improvement certificate, failure of the petition to make necessary allegations of compliance with charter requirements made necessary to fix the certificate lien validly upon the property and as a personal liability of its owner was not cured by a verdict for plaintiff, since a strict compliance with such special statutory proceedings is a necessary prerequisite of a recovery based thereon, and a verdict cannot cure or supply a failure in a petition to state a cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1454, 1455.]
    Error from District Court, Tarrant County; J. W. Swayne, Judge.
    Suit by the Texas Bitulithie Company against Mrs. H. G. Wooten and others. Judgment for plaintiff, and named defendant brings error.
    Reversed, and remanded for a new trial as to all parties.
    Robert G. Johnson and Wade & Smith, all of Ft. Worth, for plaintiff in error. T. A. Altman and W. W. Wilkinson, both of Ft. Worth, and L. M. Dabney, of Dallas, for defendants in error.
   DUNKLIN, J.

The Texas Bitulithie Company, having paved one of the streets of the city of Ft. Worth under and by virtue of a contract awarded by the city, instituted this suit against Mrs. E. C. Florence, the owner of a lot abutting on the street, for the amount assessed against her as the owner of the lot, and to foreclose the lien on the lot provided by the special charter of the city for such paving work. R. I. Cra'ig and Mrs. H. G. Wooten also were made defendants upon allegations in plaintiff’s petition that after said-assessments by the city Craig had purchased the property from Mrs. Florence, and that Mrs. Wooten held a lien on the lot.

Plaintiff recovered a judgment against all the defendants for the relief prayed for in its petition; and Mrs. Wooten has prosecuted this writ of error.

The only question presented is whether or not plaintiff’s petition was good as against a general demurrer, and that question is answered by us in the negative.

The city was operating under a special charter granted by the Legislature and contained in the Special Acts of the Thirty-First Legislature of 1909. The charter provides for the improvement of the public streets of the city and for fixing a lien upon the property abutting on any street so improved, and for the assessment of the amount so fixed as a personal liability of the property owner. It provides that such improvements shall be done under contract to be let by the board of commissioners of the city, and by section 15 of the act the board of commissioners are authorized to issue to the contractor certificates for the work when completed,, .which certificates are to become a lien upon the abutting property, and shall also impose-personal liability upon the owners of the respective lots. Section 15 also provides that:

“The recital in such certificates that proceedings with reference to such improvements have-been made in compliance with the terms thereof, and that all prerequisites to the fixing of the lien and charge of personal liability evidenced by such certificates have been performed, shall be-prima facie evidence of the facts so recited and no other proof thereof shall be required, but in all courts the said proceedings and prerequisites shall, without further proof, be presumed to have been had and performed.”

The charter also provides that various-steps shall be taken by the board of commissioners before the issuance of such certificates as prerequisites to their validity.

The recovery sought in the present suit was for the amount of a certificate issued by the board of commissioners of the city for paving work done by the plaintiff. In the petition the execution and delivery of the certificate to the plaintiff by the city was duly alleged. The petition sets out the recitals in the certificate to the effect that all prerequisites as to its validity had been performed, but there are no allegations in the .petition that such prerequisites had in fact been performed. The provisions in the charter that the certificates should be accepted as prima facie proof that all statutory .prerequisites to the fixing of the lien upon the property and the liability of its owner had been complied with related to proof only, and could not be given the effect to relieve the owner of the certificate from proper pleadings to show liability on the part of the owner of the property; in other words, that provision merely announced a special rule of evidence, and did not purport to be a rule of pleading.

The defendants in the trial court filed a general demurrer to plaintiff’s petition, but the demurrer seems never to have been called to the attention of the trial judge, as the record does not show any ruling thereon; and defendant in error insists that under such circumstances the judgment can be looked to in aid of the pleadings. Defendant in error cites Grant v. Whittlesey, 42 Tex. 320, and Schuster v. Frendenthal, 74 Tex. 53, 11 S. W. 1051. In the case first cited the rule is announced as follows:

“A verdict cannot cure or supply the failure in a petition to state a cause of action; an omission to act, or rely on a demurrer to a petition fatally defective, will not prevent a party from availing himself of such defect on appeal or writ of error to this court.”

That was a suit upon a promissory note, and the judgment of the trial court in favor of the plaintiff was reversed because of the fact that the petition did not state a cause of action, in that it contained no allegation that the defendant had failed and refused to pay the note.

In the second case also it .was held that a verdict will not cure the omission of a necessary substantive allegation in the plaintiff’s petition.

As the petition in the present suit failed to contain even general allegations of a compliance with the charter requirements made necessary to fix the certificate as a valid lien upon the property and as a personal liability of its owner, and as it is a well-settled rule that a strict compliance with such special statutory proceedings is a necessary prerequisite of a recovery based thereon, we think it clear that plaintiff’s petition upon which the judgment was predicated was wholly insufficient to support the judgment. Moseley v. Bradford, 190 S. W. 824, and authorities there cited.

For the reasons noted, the judgment is reversed, and the cause remanded for a new trial as to all parties.
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