author: PLEASANTS, C. J.

text:
    STATE v. INTERNATIONAL & G. N. RY. CO.
    (Court of Civil Appeals of Texas. Galveston.
    March 20, 1914.
    Rehearing Denied April 9, 1914.)
    Statutes (§ 47) — 'Validity—Uncertainty.
    In view of Const, art. 1, § 10, providing that in criminal prosecutions accused shall have the right to demand the nature and cause of action against him, and Penal Code 1911, art. 6, declaring that whenever a provision of the penal law is so indefinitely framed that it cannot be understood,_it shall be disregarded, Rev. St.. 1911, arts. 6581-6583, declaring that every one engaged in constructing or repairing railroad cars shall maintain a building or shed at every station where as many as five men are regularly employed for repair work, to shelter them from the elements, but excepting certain points where it is necessary to make “light repairs” only, is invalid, for while the Legislature has authority to make such regulation, the expression “light repairs” is so indefinite that an ordinary person cannot determine what repairs would constitute a violation.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. § 47.]
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Suit by the State, to. recover a penalty for the violation of Act 32d Leg. requiring those engaged in constructing or repairing railroad cars to furnish shelter for workmen. From an order sustaining the demurrer and dismissing the petition, the State appeals.
    Affirmed.
    B. F. Looney, Atty. Gen., Luther Nickels, Asst. Atty. Gen., and Charles Murphy, of Houston, for the State. Wilson, Dabney & King, of Houston, for appellee.

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

   PLEASANTS, C. J.

This suit was brought by the appellant against the appellee to recover penalties for the alleged violation by appellee of the provisions of an act of the Thirty-Second Legislature (articles 6581, 6582, and 6583, Revised Statutes 1911), requiring every person, corporation, or receiver engaged in constructing or repairing cars to erect and maintain a building or shed for the shelter and protection of the workmen employed in such work. The trial court sustained a general demurrer to the petition, and, plaintiff declining to amend the suit was dismissed.

The learned trial judge prepared in writing and filed his reasons for sustaining the demurrer, which we here copy from appel-lee’s brief:

“This suit is brought by the state to recover penalties for alleged violation of a general statute passed at the called session of the Thirty-First Legislature. 4th Ex. Sess., c. 6.
“Section 1 of the act in question reads as follows: ‘That every person, corporation or receiver engaged in constructing or repairing railroad cars, trucks or other railroad equipment, shall erect and maintain a building or shed at every station or other point where as many as five men are regularly employed for such repair work, the building or shed to cover a sufficient portion of its track so- as to provide that all men regularly ‘ employed in the construction and repair of ears, trucks, or other railroad equipment, shall be sheltered from rain and protected from other inclement weather. The provisions of this act shall not apply to points where less than five men are regularly employed in the repair service, nor at division terminals, or other points where it is necessary to make light repairs only, on cars, nor to cars loaded with time or perishable freight, nor to cars when trains are being held for the movement of said cars.'
“Section 2 of said act reads as follows: ■“Any person, corporation or receiver, who shall violate the provisions of this act, shall be liable to the state of Texas for a penalty in any sum not less than fifty dollars nor more than one hundred dollars, and each ten days of such failure or refusal to comply with the provisions of this act shall be considered a separate infraction, authorizing the recovery of a separate penalty.’
“The defendant enters a general demurrer to the state's petition, and contends that this act is too .indefinite in its terms to be enforceable, as the term ‘light repairs’ is a relative term, and wholly unintelligible.
“Article 1, .§ 10, of the Constitution of Texas, provides that: ‘In all criminal prosecutions, the accused shall have the right to demand the nature and cause of the action against him.’
“Article 6 of the Penal Code of Texas provides that: ‘Whenever it appears that a provision of the penal law is so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed, or from ■some other written law of the state, such penal law shall be regarded as wholly inoperative.’
“In G., C. & S. P. Railway Co. v. Dwyer, 84 Tex. 200, 19 S. W. 471, the Supreme Court of this state says that: ‘Every man is presumed to know the law, and it would seem that before any one should be punished, either in a criminal or a civil action, for an act claimed to be penal, the offense should be clearly defined, and that any grave doubt as to the intention of the Legislature should ‘be resolved in favor of the defendant.’
“In Chicago & Northwestern Railway v. Dey (C. C. S. D. Iowa) 35 Fed. 876, 1 L. R. A. 744, a statute which attempted to penalize the railway company for charging ‘unreasonable rates’ was contended to be too indefinite for enforcement. In passing upon this question, Judge Brewer, later one of the judges of the Supreme Court of the United States, in rendering the decision, said: ‘If this were the construction to be placed upon this act as a whole, it would certainly be obnoxious to complainant’s criticism, for no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.’
“Later, in the case of Tozer v. United States (C. C. E. D. Mo., N. D., 1892) 52 Fed. 917, the same judge, in passing ■ upon the undue preference clause of the Interstate Commerce Act, speaking for the court, said: ‘In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty’ — and cites his opinion in the Dey Case, with other authorities, including Ex parte Jackson, 45 Ark. 158, and textbooks on statutory construction.
“In L. & N. R. R. Co. v. Commonwealth (1896) 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457, the court, in an exhaustive and thoroughly considered opinion, held that a statute of the state, providing that, ‘If any railroad corporation shall charge, or collect more than a just and reasonable rate of toll for the transportation of freight or passengers, it shall be guilty of extortion, and fixing a penalty therefor,’ was void for uncertainty, and in violation of both the state and federal Constitutions against the taking of property without due process of law, in that it fails to prescribe a standard as to what is just and reasonable, by which the carrier was to regulate its conduct. This cites with approval the Dey and Tozer Cases, decided at circuit by Judge Brewer, and also L. & N. Railway Co. v. Commissioners of Tennessee (C. C.) 19 Fed. 693, construing a like statute, and says that the Supreme Court of the United States, in Railway Commission Cases, 116 U. S. 336, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636, refers to the Tennessee case just cited; and substantially approves it, by distinguishing the cases before the court from the Tennessee case. In this case -the Kentucky court further says that: ‘No case can be found, we believe, where such indefinite legislation has been upheld by any court when a crime is sought to be imputed to the accused.’
“In Waters-Pierce Oil Co. v. Texas, 212 U. 8. 109, 29 Sup. Ct. 226, 53 L. Ed. 417, the United States Supreme Court distinguishes the Kentucky case just cited from the case in hand, and says that: In the Kentucky case, ‘it was held that the law was unconstitutional, for under such an. act it rests with the jury to say whether a rate is reasonable, and makes guilt depend, not upon standards fixed by law, but upon what a jury might think as to the reasonableness of the rate in controversy.’
“In Augustine v. State, 41 Tex. Cr. R. 72, 52 S. W. 81, 96 Am. St. Rep. 765, the Court of Criminal Appeals of Texas held, in passing upon a statute which provided that ‘whenever two or more persons shall combine together for the purpose of mob violence, and in pursuance of such combination shall unlawfully and willfully take the life of any reasonable creature in being, by such violence, such persons shall be deemed guilty of murder by mob violence, and upon conviction thereof, shall be punished,’ etc., that the statute was unenforceable because too indefinite. In discussing the ease the court says that a statute of this kind must be capable of intelligent construction and interpretation, otherwise it will be inoperative and void, and cites with approval the following from Black on Interpretation of Laws: ‘The court must use every authorized means to ascertain and give it an intelligible meaning; but if, after such effort, it is found to be impossible to solve the doubt and dispel the obscurity, and if no judicial certainty can be settled upon as to the meaning, the court is not at liberty to explain or make one. The court may not allow conjectural interpretation to usurp the place of judicial exposition. There must be a competent and efficient expression of the legislative will. * * * If the terms in which a statute is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inoperative.’
“In Cook v. State, 26 Ind. App. 278, 59 N. E. 489, the court held a statute of that state, making it an offense to haul over turnpikes and graveled roads, in specific weather, loads of more than 2,000 pounds, in narrow-tired wagons, or more than 2,500 pounds in broad-tired wagons, ‘void for uncertainty, because it fails to provide standard of comparison by which broad or narrow tires may be determined.’ In discussing this case, the court says: ‘The language of a criminal statute cannot be extended beyond its reasonable meaning; and, whenever the court entertains a reasonable doubt as to the meaning, the doubt must be resolved in favor of the accused. The court must expound what it finds written, and cannot import additional meaning without sufficient indication thereof in the words of the statute, with such aids thereto as the established rules of law authorize. * * * Where the terms of the statute are so uncertain as to their meaning that the court cannot discern with reasonable certainty what is intended, it will pronounce the enactment void’ — and quotes with approval the following language from State v. Partlow, 91 N. C. 550, 49 Am. Rep. 652: ‘Whatever may be the views and purposes of those who procure the enactment of a statute, the Legislature contemplates that its intention shall be ascertained from its words as embodied in it. And courts are not at liberty to accept the understanding of an individual as to the legislative intent.’ And the Indiana case further says: ‘There must be some certain standard by which to determine whether an act is a crime or not; otherwise, cases in all respects similar, tried before different juries, might rightly be decided differently, and •a person might properly be convicted in one county for hauling over a turnpike in that county, and acquitted in an adjoining county of a charge of hauling the same load, on the same wagon, over a turnpike in like condition in the latter county, because of the difference of conclusions of different judges and juries based on their individual views of what should be the standards of comparison of tires, derived from their varying experiences, or the opinions of witnesses as to what difference of width of tires' would constitute one wagon a narrow-tired wagon and another a broad-tired wagon. If it should be said that the question as to what is a narrow-tired wagon is one which may be determined in a particular case by the jury trying it, under proper instructions from the. court, can we hold that the court, in its instructions, could lay down any principle or rule which would obtain in all such cases throughout the state? If so, can this court indicate what should be the scope or tenor of such instructions?’
“In Baltimore & Ohio Railway Co. v. Railroad Commission (C. C.) 196 Fed. 690, the court held that an order of the Railroad Commission, requiring railroads to equip their road engines with lights of a certain candle power, was entirely too indefinite for enforcement, because it did not state that the candle power provided for should be at the initial source of light, or should refer to the light produced at the initial source, plus the increased light produced by the reflector.
“In the case of Chicago, I. & L. Railway v. Town of Salem, 166 Ind. 71, 76 N. E. 631, the court held that an ordinance requiring a railroad to provide lights of not to exceed 200 candle power, and give such light and service as the town maintain, is too indefinite in its description of the kind and degree of light required to be maintained, and is consequently invalid.
“In opposition to the contention made by counsel for the International & Great Northern Railroad in this ease, and as tending to support the act in question, I am cited to the case of the M., K. & T. Ry. Co. v. State (decided by the Dallas Court of Civil Appeals of Texas, October 20, 1906), reported in 97 S. W. 721, construing and holding valid an act of the Texas Legislature requiring railroads ‘to construct, maintain, and keep in reasonably clean and sanitary condition, suitable and separate water-closets or privies, for both male and female persons, at each passenger station on its line of railway, either within its passenger depot, or in connection therewith, or within a reasonable and convenient distance therefrom at such station,’ etc., penalizing the railroads for failure to comply therewith.
“In the case just cited, it was urged, as in the case at bar, that this statute was too •vague, indefinite, and uncertain in its provisions to entitle the state to recover the pen-alües sued for, the court saying: ‘If its provisions are so indefinitely framed or of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from some other written law of the state, it will be held inoperative’; also that ‘the statute is penal in its provisions, and, this being so, it is to be strictly construed.’
“The Court of Civil Appeals rendering this decision says that the terms ‘clean and sanitary’ are frequently used in ordinances and laws defining certain nuisances, and that they are usually held to be terms of such certain meaning, and so generally understood, that they can be safely submitted to a jury on an issue of fact, and cites with approval the case of Louisville & Nashville Railroad Company v. Commonwealth, 103 Ky. 605, 45 S. W. 880, construing a somewhat similar statute; and the same court again, in the ease of Railway v. Commonwealth, 103 Ky. 608, 46 S. W. 697, construing the Kentucky statute, quotes, among other things, the following from the Kentucky court: ‘What is a suitable and convenient waiting room and water-closet is a question about which there ordinarily can be no serious difference of opinion between persons of that class usually selected as jurymen. It is a question of fact, dependent upon the size of the city, town, or station where the railroad train stops, and the number of passengers arriving at and departing therefrom.’ The Texas court then says: ‘What is a clean, suitable water-closet is a question of fact, about which there can be no serious difference of opinion among jurymen, nor can they differ in what constitutes separate water-closets for male and female persons. It was also a fact for the jury to determine whether a water-closet was within a reasonable and convenient distance from the depot.’ It will bé noted from this decision and the Kentucky eases cited in its support that the statutes in question were sustained upon the theory that the meaning of the terms used therein was so generally known, and that no serious difference of opinion as to their meaning among jurymen could arise.
“This Texas ease and these two Kentucky cases construing the water-closet statutes are the only ones to which I have been referred by the state to support their contention as to the validity of the act in question. It will be noted that the Kentucky court holding valid the water-closet statutes is the same court that in L. & N. R. R- Co. v. Commonwealth, in an able and exhaustive opinion, held invalid a statute penalizing the railroads of that state for collecting more than a ‘just and reasonable rate of toll’ for transportation of freight and passengers. It is also worthy of note that in the case of State v. T. & N. O. Railroad, 103 S. W. 653, the San Antonio Court of Civil Appeals, with the opinion of the Dallas court before it, held the Texas water-closet statute invalid in the following language: ‘In addition, we think the terms, “suitable closet,’’ “reasonably clean and sanitary condition,” and “reasonable and convenient distance,” as used in the act (at least the first and last of those designations), fail to designate with sufficient certainty what was required, and therefore failed to apprise the railway companies in advance of what they must do in order to conform to the act. The penal statute was therefore invalid. This matter is also referred to in the opinion in the case above cited.’ The opinion just referred to, by the San Antonio court, is the opinion of the Supreme Court in M., K. & T. Railway Company v. State, reported in 109 Tex. 420, 100 S. W. 766, reversing the Dallas Court of Civil' Appeals in the water-closet case above mentioned, cited by counsel for the state. The Supreme Court, however, in reversing the Court of Civil Appeals, does not mention that portion of the decision of the Court of Civil Appeals which upholds the water-closet law as being sufficiently certain in its terms, but reverses the case upon another point. It will therefore be seen that the Supreme Court did not, in any way, give its sanction to the holding of the Court of Civil Appeals just referred to.
“It is clear in the court’s mind that the state has a perfect right under its police powers to pass and enforce a statute having the same object in view as the-present one, and the court also appreciates the importance of this law to the people it is designed to protect; but the question of the protection of the people against laws so indefinitely drawn that a reasonable person cannot know in advance of committing an act that he will be transgressing a law which may deprive him of his life, liberty, or property is of a still higher degree of importance to the average man.
“That the term ‘light repairs’, as used in the present act, is a relative one there can be no doubt, and it also seems clear that the average man or juror has no definite conception as to what it means, when applied to repairing general railroad equipment. Of course it does not mean heavy repairs, and that brings us back to the question of what are ‘light repairs.’ Do ‘light repairs’ mean those only in which the railway company’s outlay in dollars and cents for their accomplishment is small? If so, how small? Does it mean those repairs in which light materials only are used? If so, how light? Does it mean those repairs which can be quickly made? If so, how quickly? Or do all these elements in a greater or lesser degree enter into the definition of the term? Is it correct to say that reasonable minds and different juries, hearing minutely detailed by witnesses on the stand the ins and outs of the railway repair business, might not differ as to what ‘light repairs’ of a railroad equipment mean? Might not one jury penalize the railway to-day, and another hold it guiltless to-morrow for conducting exactly the same kind of repairs? Is the term ‘light repairs,’ when applied to the equipment of a railroad, less ambiguous than the term ‘narrow and broad tires’ when applied to a farmer’s or teamster’s wagon, held ambiguous in the Indiana case, or the terms held toó indefinite to support penal statutes mentioned in the other cases above cited? Does the statute under consideration in any sense meet the requirements of certainty laid down by Judge Gaines of our Supreme Court in G., C. & S. F. Railway Co. v. Dwyer, quoted above, or the requirements of any of the other courts or text-writers who have had occasion to consider the matter? It seems to me that there can be but one answer, and that in the negative.
“Holding the views I do as to the law of the case, it becomes my duty to sustain the defendant’s general demurrer to plaintiff’s petition, which is accordingly done.”

This opinion of the trial court presents and discusses the question raised by the demurrer so clearly and exhaustively that it is unnecessary to add anything thereto, and we adopt it as the opinion of this court.

It follows that the judgment of the court below should be affirmed and it has been so ordered.

Affirmed.


source: Caselaw Access Project

author: HARPER,. C. J.

license: Public Domain

text:
    JAMES et al. v. GOLSON.
    (Court of Civil Appeals of Texas. El Paso.
    April 9, 1914.)
    Appeal and Error (§ 387) — Appeal Bond-Time op Piling.
    Under Rev. St. 1911, art. 2084, providing that an appeal may be taken by filing a bond, etc., within 20 days after the expiration of the term, but that if the term may by law continue more than eight weeks, the bond shall be filed within 20 days after the notice of appeal if plaintiff resides in the county, and within 30 days if he resides out of the county, the bond must be filed within 20 days after the adjournment of the trial court, where appellant is a nonresident and the record does not show that the judgment term could have continued for more than eight weeks, and the appeal will be dismissed where the bond was not filed within that time.
    [Ed. Note.- — For other cases, see Appeal and Error, Cent Dig. §§ 2064r-2070; Dec. Dig. § 3S7.]
    Appeal^ from District Court, Culberson County; Dan M. Jackson, Judge.
    Action between Myrtle B. James and another and B. A. Golson. Prom an adverse judgment, the first-named parties appeal.
    Appeal dismissed.
    Hudspeth, Dale & McDonald, of El Paso, for appellants. Joe Irby, of Van I-Iorn, and R. M. Reed, of El Paso, for appellee.

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

   HARPER,. C. J.

The term of the court at which the judgment was rendered from which this appeal is prosecuted adjourned on the 10th day of July, 1913. The appeal bond was filed on the 5th day of August, 1913. The bond not having been filed within 20 days after the adjournment of the trial court, as required by the statute, this court has no jurisdiction to hear and determine the case, and the appeal must be dismissed. Article 2084, Rev. Civ. Stat. 1911.

The record discloses .that the appellant is a nonresident of the county in which the judgment appealed from was rendered, but, under the statute above referred to, such nonresident did not have 30 days after the notice of appeal within which to file his appeal bond, because there is nothing in the record to show that the term of court at which the judgment was rendered could have continued in session for more than eight weeks, in which latter case only does the appellant have 30 days after notice of appeal is given in which to file his appeal bond. Nash v. Noble, 52 Tex. Civ. App. 425, 114 S. W. 848; Simpson v. Baker, 57 Tex. Civ. App. 460, 122 S. W. 959. Por ‘the reasons given the cause is dismissed.

Dismissed.


author: RICE, J.

text:
    CARTER v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS.
    (Court of Civil Appeals of Texas. Austin.
    March 18, 1914.
    Rehearing Denied April 22,1914.)
    Railroads (§ 282) — Injuries to Licensees.
    A petition alleged that defendant railway company, negligently and in violation of an ordinance, permitted a fire to remain on its right of way; that plaintiff, an employe of a consignee, was unloading a freight car near the fire, and because of the heat was made sick and fell into the fire; and also that defendant was negligent in placing the car so near the fire and inviting plaintiff upon the premises to unload it. Held, that it stated a good cause of action.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. § 282.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by J. R. Carter against the St. Louis Southwestern Railway Company of Texas. From a judgment on demurrer for defendant, plaintiff appeals.
    Reversed and remanded.
    J. E. Yeager, of Waco, for appellant. Scott & Ross, of Waco, for appellee.

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

   RICE, J.

The only question involved in this appeal is whether or not appellee’s general demurrer to appellant’s petition should have been sustained. This necessitates setting out, in substance, the allegations of said petition, which charged that plaintiff had been injured by reason of defendant’s negligence in violating an ordinance of the city of Waco prohibiting any person from making or leaving' any fire in any public place in said city without safeguarding the same against accidents, etc., alleging that defendant violated said ordinance on the 5th of July, 1912, by building and permitting a fire to remain on its premises near its depot in the city of Waco, at a place set apart for the public to load and unload cars; that on said occasion he, as an employs of the Herrick Hardware Company, a mercantile establishment, had been sent by it to unload a freight car left at said place by defendant; that he began to unload said car without noticing the fire that defendant had built and allowed to remain near its right of way at said point, which had burned into a dangerous bed of coals, so covered with ashes as to be unobservable, and which was not so safeguarded as to prevent an accident to any one who might be working at or near the same; that while so engaged in unloading said freight from said ear to his wagon in the sun he suddenly felt the heat of said fire, which was near him, and for the first time he then saw said fire near him under said bed of coals, and he immediately began to feel sick, and got down off of the wagon and attempted to get away far enough to cool off; that he became faint and sick and unconscious, and fell into said fire and became injured; that said fire had been built of heavy wood, unknown to plaintiff, and allowed to remain there in a bed of coals on defendant’s right of way and in violation of said ordinance, and was dangerous to any person so engaged in unloading defendant’s trains; and plaintiff alleges that defeiidant’s negligence in building, permitting to be built, and allowing said fire to remain so near said car was the proximate cause of his unconsciousness and injuries, and that he would not have become so injured but for defendant’s negligence in building said fire and not safeguarding it against accidents; that the fact of plaintiff’s becoming unconscious would not have caused said injuries, but for defendant’s negligence; that, if the court should hold otherwise,' then plaintiff shows that defendant’s negligence was the proximate concurrent cause of said injuries; that plaintiff was seriously burned about the hands and body by reason of said fire, which produced painful and permanent wounds, leaving his hand disfigured and his fingers permanently stiffened, causing great suffering and pain. He further alleged that defendant was negligent in placing said car of freight so near such fire as above described, and then inviting plaintiff on said premises to unload said car, without calling his attention thereto, which he alleged was unknown to him, and that the building and maintaining of sueh fire, and the placing of the car so near to it, was the proximate cause of plaintiff’s injuries, or was the proximate concurrent cause thereof, and, but for such negligence on the part of defendant, plaintiff would not have been injured, as aforesaid.

We think the petition states a good cause of action, and that the court erred in sustaining the demurrer. See St. Louis, B. & M. Ry. Co. v. Maddox, 152 S. W. 225; Lynch v. T. & P. Ry. Co., 133 S. W. 524; Pecos & N. T. Ry. Co. v. Maxwell, 156 S. W. 550; Strayer v. Quincy, O. & K. C. Ry. Co. (Mo. App.) 156 S. W. 735; M., K. & T. Ry. Co. of Tex. v. Thomas, 48 Tex. Civ. App. 646, 107 S. W. 868; Hamilton v. T. & P. Ry. Co., 64 Tex. 251, 53 Am. Rep. 756; T. & P. Ry. Co. v. Best, 66 Tex. 116; 18 S. W. 224; S. A & A. P. Ry. Co. v. Turney, 33 Tex. Civ. App. 626, 78 S. W. 260. Believing that the court erred as above indicated, the judgment herein is reversed, and the cause remanded..

Reversed and remanded.


author: MOURSUND, J.

text:
    CARLA LAND & IRRIGATION CO. v. DIMMIT COUNTY STATE BANK et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 25, 1914.
    Rehearing Denied April 22,1914.)
    Pleading (§ 148) — Cross-Action—Different Cause of Action.
    Plaintiff shed Y. and another on a note and to foreclose a chattel mortgage, executed by Y. to secure the note, on certain mules and farm implements, and alleged that the property was in the possession of an irrigation company, which company denied that the chattels were owned by V. when he executed the mortgage, and alleged that they belonged to it, and Y. alleged that when he executed the mortgage he acted as a representative of the irrigation company, and that the money was procured for its benefit, and further alleged by way of cross-bill thai before the above transaction he made a contract with the company which it breached, necessitating the expenditure of a certain sum by cross-complainant, and that it also contracted to clear certain land, but failed to do sd, that it contracted to construct a flume and failed to do so, and also alleged that cross-fcomplainant was put to certain other expenses by the company’s breach of its contract, and prayed damages in the aggregate of such sums. Meld, that the matters alleged in the cross-bill were extraneous to the cause of action alleged in the petition, so that exceptions should have been sustained to the cross-bill.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 299; Dec. Dig. § 148.]
    Appeal from Dimmit County Court; J. O. Rouse, Judge.
    Action by the Dimmit County State Bank against G. W. Yaughn, the Carla Land & Irrigation Company, and another, in which Vaughn and another, filed a cross-bill against the company. From a judgment for plaintiff, and in favor of Yaughn against the company, the latter appeals.
    Judgment on cross-bill reversed, and judgment rendered dismissing the cross-action, and judgment for plaintiff against Vaughn and another affirmed.
    A. L. Matlock and Butler L. Knight, both of San Antonio, for appellant. Vandervoort & Johnson, of Carrizo Springs, for appellee.

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

   MOURSUND, J.

The Dimmit County State Bank sued G. W. Vaughn and Arthur Ivy for a balance due upon a promissory note, dated February 13, 1912, and to foreclose a chattel mortgage, executed by Yaughn to said bank, for the purpose of securing the payment of the note, on four mules, one Jersey cow, two Studebaker wagons, and an entire stock of farming implements and accoutrements of every kind in the possession of Yaughn in Dimmit county at the date of the mortgage. Plaintiff alleged that Vaughn failed and refused to déliver the property to plaintiff when demanded for the purpose of selling the same, and that said property was in the possession of the Carla Land & Irrigation Company, which was withholding possession thereof. Plaintiff prayed for judgment on the note against Vaughn and Ivy, and for foreclosure of the chattel mortgage against Yaughn and the Carla Land & Irrigation Company. The Carla Land & Irrigation Company answered by general demurrer, general denial, and a special answer, denying that the property described in the chattel mortgage was owned by Vaughn when he executed such instrument, and alleging that the mules, wagóns, hack, and farming implements, tools and accoutrements, except one turning plow and one disc harrow were then and are now the property of said company, and never belonged to Vaughn; that Vaughn had no right or authority from the company to execute said mortgage. Vaughn and Ivy answered with a general denial and a special answer in which Vaughn admitted the execution of the mortgage, but claimed that he was the sole representative of the said Carla Land & Irrigation Company at that time in Texas, and that the money was procured and used for the benefit of the said company. He alleged further, by way of cross-bill against said company, that about October 24, 1911, he entered into a contract with said company, acting by C. A. Albrecht, treasurer, who was acting within the scope of his authority, by the terms of which agreement said company bound itself to do and perform certain things and to furnish certain moneys, but violated its contract, necessitating the expenditure of $500 by Vaughn, which he would not have expended if said company had not violated its contract; that said company contracted to clear additional land, but failed to do so, and Vaughn had the same cleared at his own expense, in order to have enough land to plant his onions, paying therefor $67; that the company contracted to build a flume, but failed to do so, and Vaughn had such flume constructed at a cost of $122; that under said contract he was to pay for feed when he used the mules, but during four months he did not use them, and was compelled to feed them during said time at an expense of $240, for the benefit of said company; that in feeding guests of the company he was forced to expend $116; that the company owed him $121, one-fourth of the cost of delivering 4,866 crates of onions at Asherton and $15 for three days’ work in replacing and repairing windmills; that during the term of his contract the company rented its entire premises, including the part rented to him, to pasture a large number of cattle, and the fence around the 30 acres cultivated by him was in bad condition, so that the cattle broke the same and damaged him in the sum of $450 by destroying his crop and preventing him from planting and raising crops; further that in order to get out of the farm, he was forced to make a mile of road which the company agreed to build, which road cost him $37; that by reason of such wrongful acts and breach of contract by the company he was damaged in excess of $1,000. The Carla Land & Irrigation Company, in answer to Vaughn’s pleading, filed a general demurrer, a special exception, a general denial, and a special answer, denying that Vaughn executed the mortgage as the representative of said company, or that he got the money from plaintiff for the benefit of said company, or used same, or any part thereof, for the benefit of said company, and alleged • that it did not know, at the time Vaughn executed the mortgage and borrowed the money, that he had done so. Said company further denied that Yaughn was its sole agent in 'Dimmit county at the time the mortgage was executed, and that Vaughn had any right or authority to bind it by the’ execution of any such mortgage or note, and alleged that if Vaughn executed such mortgage and note, he exceeded his authority, and was acting outside of the apparent scope of his authority, and such acts, if performed as agent of said company, were ultra vires and not authorized, ratified, or confirmed by the company; that said company is a corporation formed under the laws of Texas for the purpose of the erection or repair of any building or improvements and the accumulation and loaning of money for such purposes, and for .the purchase, sale, and subdivision of real property in towns, cities, and villages and their suburbs, not exceeding two miles beyond their limits, and for the accumulation and loaning of money for that purpose, and the alleged mortgaging of the company’s property to plaintiff by Vaughn to secure the payment of the note sued on was beyond the scope of the power conferred by said company’s charter, and therefore void. A verdict was returned in favor of the bank for $358.38 and foreclosure of lien on one cow, one disc harrow and two turning plows, and in favor of Vaughn as follows: Clearing land, $83.50, building flume, $122, feeding mules, $120, feeding prospectors, $111, hauling windmill, $15, hauling onions, $72.84, and damage by cattle, $450, aggregating $924.34, from which the jury deducted a credit of $450.34, due the company for supplies and interest, although no such credit was pleaded, leaving $474.34. Judgment was entered in accordance with the verdict, from which the company appealed.

By the first assignment of error complaint is made because the court overruled appellant’s special exception to Vaughn’s answer and cross-bill, by which each item of said cross-bill is attacked as an attempt to set up a new and distinct cause of action against the company, not in any way connected -with the cause of action set forth in plaintiff’s petition, and it is further urged that if Vaughn has any cause of action against the company on account of the matters alleged in said cross-bill, such cause of action is altogether of different and distinct transactions between the company and Vaughn, which have no- connection with the cause of action sued upon by plaintiff, and said answer and cross-bill shows a misjoinder of actions. No cause of action is asserted by Vaughn as to the property mortgaged, nor is any asserted against him by the company because he mortgaged the property. No contention was made by Vaughn that the property mortgaged by him had been unlawfully taken from his possession, or that he was, at the time of the suit, entitled to the possession thereof. The mortgaged property belonging to appellant had come into the possession of Vaughn under a lease contract, but he made no contention that such contract gave him the right to keep possession after his tenancy expired, or that such contract created the relation of principal and agent between him and the company, or authorized him to mortgage the property. He undertakes to sue the company for various items of damages arising from its alleged failure to perform the obligations imposed upon it by the lease contract, and for other claims, none of which are connected with the plaintiff’s cause of action, and if his suit against appellant can be permitted, we see no reason why in all eases co-defendants should not be permitted to litigate between themselves all their claims against each other. Certainly the plaintiff can object to such a proceeding, and a defendant can also object thereto. Appellant was entitled to have his ease, as made by plaintiff’s pleadings, his answer and Vaughn’s answer, determined without the extraneous matters asserted in the cross-bill being injected into the case. The joinder of the cross-bill by Vaughn with that of plaintiff “was calculated to disturb the orderly course of procedure and to occasion delay,” and the court should have sustained the exception. Coutlett v. Mortg. Co., 60 S. W. 817; Keel & Son v. Grain Co., 143 S. W. 238; Frey v. Ry. Co., 86 Tex. 465, 25 S. W. 609; Stewart v. Gordon, 65 Tex. 344; Johnson v. Davis, 7 Tex. 173. The assignment is sustained.

All the remaining assignments of error, except the sixth, are based upon the admission of evidence in support of the cross-bill, charges with reference thereto, and the sufficiency of the evidence to sustain certain items thereof. As all these matters should have been eliminated from the case, by sustaining the exception to the cross-bill, we need not consider such assignments.

The sixth assignment complains of the admission of evidence prejudicial to appellant, upon the issues made by the cross-action, and not authorized by any pleadings in the case. Such assignment is, however, also immaterial, in view of the disposition we make of the cross-action. The judgment of the county court overruling the exception and rendering judgment in favor of Vaughn against appellant will be reversed, and judgment here rendered dismissing the cross-action by Vaughn against appellant, but without prejudice to the right of Vaughn to bring an independent suit for the damages claimed. The judgment in favor of the Dimmit County State Bank against Vaughn and Ivy and for foreclosure of its lien upon the property adjudged subject thereto is not disturbed. The costs of this appeal will be assessed against Vaughn.


author: HENDRICKS, J.

text:
    JOHNSON v. HOOVER & LYONS.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.
    Rehearing Denied April 11, 1914.)
    1. Appeal and Error (§ 499) — Record—Objections to Charge. '
    The record must show objections to the charge were made before it was read to the jury; objections not so presented being, by provision of Acts 33d Leg. c. 59, deemed waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§2295-2298; Dec. § 499.]
    2. Appeal and Error (§ 501) — Record—Exceptions — Overruling Objections to Charge.
    The record must show that exceptions were reserved to the overruling of objections to the charge.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300 — 2305; Dec. Dig. § 501.]
    3. Appeal and Error (§ 501) — Record—Ex- ' ceptions — Refusal op Instructions.
    Acts 33d Leg. c. 59, providing that the ruling refusing instructions shall be regarded as approved, unless excepted to, the record must show the reservation of the exception.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    4. Accord and Satisfaction (§ 11) —Compromise and Settlement — Part Payment
    | op Undisputed Claim.
    Where plaintiffs sold wheat to defendant, and there was no controversy as to the amount due, -the sending by him to them of a check of another for a less amount, though indorsed as balance thereon, and their acceptance thereof, does not defeat their claim for the balance; there being no consideration for surrender thereof.
    [Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 75-82; Dec. Dig. § 11.]
    5. Principal and Agent (§ 142) —Undisclosed Agency — Notice. _
    _ The sending by defendant to plaintiffs of the check of another for part of the price, after sale by plaintiffs to defendant, personally, of wheat had been consummated by delivery, could not operate as notice that he was buying for such other.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 501; Dec. Dig. § 142.]
    Appeal from District Court, Hemphill County; F. P. Greever, Judge.
    Action by Hooyer & Lyons against J. F. Johnson. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    N. P. Willis and Frank Willis, both of Canadian, for appellant. Hoover & Hoover, of Canadian, for appellees.

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

   HENDRICKS, J.

This controversy arose over the sale and delivery of wheat by the appellees to the appellant, and the payment by the appellant with a check of the Johnson Mercantile Company, for said wheat, with a recitation upon said check, “Balance on Lyon wheat.” Appellees claim to have sold the wheat to appellant individually. Appellant alleges that he purchased the wheat as agent for the Johnson Mercantile Company, of which appellees had notice, and that the execution and delivery of the check with the indorsement upon the same was a full settlement as a consideration for the wheat.

The appellant’s brief embodies assignments of error leveled at the action of the trial court, by either complaining of some phase of the general charge of the court, or of the refusal of the trial court in failing to give some special instruction requested by him, except the last assignment, which is a complaint that the verdict and judgment is contrary to the law and the evidence.

As to the objections to the general charge and the attempted complaint of the action of the court in refusing the special charges, the condition of the record is such that, under the Acts of the Thirty-Third Legislature with reference to the trial of causes and the submission of general and specially requested instructions to the jury, he is unable to complain on . account of the inadequacy or total lack of exceptions. General Laws of Texas, Session Acts, p. 113.

We find objections to the charge in the record, purported to have been mhde by the recitations in the pleading before the charge of the court was read to the jury. However, there is no preservation of exceptions to the action of the court in this respect, nor any approved record showing when the objections were made. The statute imperatively prescribed that the objections shall, in every instance, be presented to the court before the charge is read to the jury, and all objections not so made and presented shall be considered as waived, necessarily requiring the incorporation of the fact of the presentation to the court of the objections before the charge was read to the jury into the record; and exceptions should be reserved thereto not exhibited in this record. The recitation in the pleading is insufficient — the court must act and exceptions be properly preserved. As to the refusal of special charges, the statute also states that the ruling of the court in refusing instructions to the jury shall be regarded as approved, unless excepted to, which is likewise omitted in this record. Quanah, Acme & Pacific Ry. Co. et al., Appellants, v. W. W. Galloway, Appellee, No. 575, 165 S. W. 546, March 14, 1914; Mutual Life Insurance Association of Donley County, Tex., v. Mrs. S. F. Rhoderick, 164 S. W. 1067, March 14, 1914.

The tenth ground of the motion for new trial, brought forward in the brief, is substantially as follows: The verdict is contrary to the evidence, in that the testimony discloses that the matters in controversy, as between the plaintiffs and the Johnson Mercantile Company, were finally closed by settlement between J. F. Johnson as president of the corporation and Reese Johnson, acting in the scope, or apparent scope, of his authority as agent for the plaintiffs. As stated, appellees claim they sold the wheat to J. F. Johnson individually, and not to the corporation. The jury evidently found in their favor upon that issue, and concluded the question. Even if J. F. Johnson was buying the wheat for the Mercantile Company, the appellees had no notice of that fact; the jury said J. F. Johnson was buying it for himself; hence if that be true, the amount as between appellees and J. F. Johnson is an undisputed liquidated demand for the wheat purchased, without the semblance of a bona fide controversy between him as an individual and the appellees as the vendors as to the amount actually owing. Consequently, if J. F. Johnson, as an individual, purchased the wheat, and the trade was a consummated transaction, though afterwards he gave the Johnson Mercantile Company’s check in payment of same, and indorsed that it was a balance on wheat, and if it were a less amount paid by J. F. Johnson, in attempted payment for a greater liquidated debt, there is no consideration, and the debt was unpaid. In the case of Bergman Produce Co. v. Brown, 156 S. W. 1104, we quoted with approval .the case of Cunningham v. Construction Co., 134 Ky. 198, 119 S. W. 765, as follows: “The payment or tender of a sum less than the amount of the debt, even though accompanied with a statement that it is in full, though accepted by the creditor, does not operate to defeat the creditor from collecting the balance of the debt, for the reason that there is no consideration for the surrender of the unpaid portion.” This we think is settled law, and all the cases cited by appellant are clearly distinguishable from the case made.

We infer from the record that the cheek, though apparently given by the Mercantile Company, was accepted after the consummation of the sale and delivery of the wheat, and could not then afford notice; under the jury’s verdict the trade was made with Johnson individually.

The judgment is affirmed.


author: HUFF, C. J.

text:
    FIRE ASS’N OF PHILADELPHIA v. STRAYHORN.
    (Court of Civil Appeals of Texas. Amarillo.
    March 21, 1914.
    Rehearing Denied April 18, 1914.)
    1. Appeal and Error (§ 938) — Presumptions — Extension op Time poe Filing Bill op Exceptions — Existence op Good Cause.
    Where the trial court, authorized on good cause shown to extend the time for the filing of bills of exception, extended the time, the court on appeal, in the absence of a contrary showing, will presume that good cause was shown, and bills of exception, filed within the time as extended, must be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3795-3803; Dec. Dig. § 938.)
    2. Pleading (§ 279) — Supplemental Petition-New Cause op Action.
    Where insured, in a fire policy, sought a recovery only for the destruction of a concrete building covered by the policy, and made no claim for injury by fire .to an iron building, and insured sought to avoid liability by reason of additional insurance on the iron building, a supplemental petition, alleging that the policy was intended not to cover the iron building, and that, if it did cover it, it was a fraud, did not set up a new cause of action, but was an answer which, if supported by evidence, prevented insurer from defeating a recovery by setting up a contract which was never made, or, if made, was fraudulent.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.]
    3. INSUEANCE (§ 669) — FlEE INSURANCE — EVIDENCE — INSTRUCTIONS.
    Where, in an action on a fire policy covering a concrete building, insured’s evidence showed that the standing walls could not be utilized for reconstruction, and insurer showed that certain portions could be used, but did not show what it would cost to put them in a condition on which to place a building, or the value of the walls, or the extent of the depreciation in the building, a charge that a building is not a total loss so long as its identity is left, and so long as the remnant may be reasonably adapted for use on which to restore the building, but a building is a total loss unless the remnant is of that substantial character that, if the same was restored or repaired, it would be considered the old structure and not a new building, was sufficiently favorable to insurer in defining total loss.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.]
    4. Insurance (§ 598) — Fire Insurance — Liability — Interest.
    Where an insured building is destroyed, the amount of the policy is due when the loss occurred, and it will bear interest from that date, though the policy provides that any sum for which insurer may be liable will not be due until 60 days after proof of loss.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1494; Dec. Dig. § 598.]
    Appeal from District Court, Scurry County; Jno. B. Thomas, Judge.
    Action by Joe Strayhorn against the Fire Association of Philadelphia. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. Beall & Beall, of Sweetwater, and Perkins & Perkins, of Snyder, for appellee.

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

   HUFF, C. J.

The appellee, Joe Strayhorn, sued the appellant, the Fire Association of Philadelphia, on a fire insurance policy, alleging that appellant insured him from loss by fire, not to exceed $4,500, on his gravel-roof, concrete building located on lot 2, block 3, in the Blankenship addition to the town of Snyder, and alleged the destruction of the building by fire on the 19th day of December, 1911.

The appellant, by answer, replied: That it agreed to insure the appellee against all direct loss by fire to his one-story gravel-roof, concrete building and the ironclad warehouse adjoining on the side and the rear thereof; the same being located 117.21,117.21, rear 113.17 on the north side of West street, in block No. 3 in Blankenship addition to the town of Snyder, subject to certain conditions and warranties contained in tlie policy, which, is as follows: “This entire policy unless otherwise provided by agreement and indorsed hereon, or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in the whole or in part by this policy.” That, under the terms of the policy sued on, appel-lee was authorized to procure other additional insurance on the property in an amount not to exceed $3,600. That the policy was void because appellee had procured additional insurance, covering in whole or in part the property described in the policy in excéss of the amount authorized. And appellant further denied by allegation that the building was a total loss. By supplemental petition appellee alleged that it was untrue that he had taken out additional concurrent insurance upon the concrete building described in his original petition in excess of the amount as provided in the policy, and that in that connection, if appellant contended that the policy sued on covered other of appellee’s property than that of the concrete building, appellant’s local agent, in writing said policy, had no agreement, authority, or instructions from appellee to so incorporate any building other than the concrete building in the policy, and that he had no knowledge whatever of any other building being included at the time of writing the policy or subsequent thereto; that, prior to writing the policy in question, the local agent of appellant had been writing appellee’s policies on the concrete building to keep the policies renewed thereon, which was the only instructions he had given to such agents, and, if the policy included other property than the concrete building, then the act in so including such property was a fraud on appellee’s understanding, instructions, and rights. He set out fully the reason for his failure to discover the additional property in the policy, and asked, if it should develop that the ironclad buildings were so included in the policy, then that the policy sued on be reformed and amended so as to cover the concrete building alone, according to the agreement, understanding and instructions given to the local agents of appellant.

By supplemental answer, appellant excepted specially to the supplemental petition of appellee to reform the policy on the ground that said allegations were not in replication of any matter that could be pleaded in his supplemental petition. This exception was overruled by the trial court.

The facts show that appellant issued the policy described in appellee’s petition covering the property described therein, and that the building was burned on the 19th of December, 1911. The building was a one-story concrete building of the kind called slush wall building; the walls were some 21 or 22 feet high, and plastered on the inside, and had a double deck about one-third of the building. It had a plank flooring, and the double deck also had a plank flooring. From the ceiling up to the top it was well built and braced for, the purpose of carrying a tar and gravel roof, or a heavy roof; that there were two lines of stringers'across, one for the ceiling and one for the roof to lie on, and it sloped back towards the north or the rear. There were two rows of posts through the building to hold up the roof. At the time the fire occurred, it was occupied by a stock of merchandise, consisting of wagons, buggies, etc. All the stock inside was consumed in the fire.

The appellee’s testimony is to the effect that he found the walls were decaying rapidly, caused by the fire. That immediately after the fire the walls had begun to slough off, and that they had a number of cracks in them, and that they did not have one before the fire. The east wall had three cracks in it that it did not have before, and that it was out of line a good deal more than it was before the fire. It was shown that this wall, when the building was constructed, was built out of line and a little bit crooked. Each of the walls were 11 inches thick. The south front wall fell to the ground. There were some cracks in the west wall. The north wall was badly cracked. There were no openings in the said wall except some small openings about 10 or 12 inches near the top of the walls. The walls were made out of gravel and concrete. After the fire, the witnesses for appellee state that the texture of those walls, especially inside, was very soft and sloughed off and was rotten. The walls were of solid.concrete; were not hollow blocks. The testimony offered by ap-pellee was to the effect that no part of the wall left standing could be utilized in rebuilding or as a basis to rebuild.

The appellant offered one witness, who gave his experience as a contractor and builder and knowledge of such matters, as well as the effect of fire on walls of this character. He testified that he, at the instance of the insurance company, went over the remains of the building and measured the walls and took an inventory of what he considered damaged and would be called a total loss and what might be used to build back again; that he found the front or south wall collapsed and fallen into the street; that the rear wall was in bad shape around where the window openings had been; that in his opinion the north or rear wall ought to come down; that, as to the west wall, the inside plaster was intact on about half of the wall; that the exterior of this wall had the finish coat of cement and was in good shape up to those little diamond-shaped windows in the wall; that in general over that west wall the plaster had not come off. He found that on the inside surface of the west wall the sand and cement had come apart and had disintegrated, some to a slight depth and' scaled off on the surface, he should say not over an inch in depth in any place, and in many places not. at all; that up to a height of 12 feet, or up to the bottom of those little diamond-shaped windows, the west wall waTs true, straight, and clean; that the east wall had a cement coat on the outside, and is as nice and clean a wall as he ever saw; that the cement work is not even cracked and is in good condition; that about the windows it leans out a little, and he would recommend taking it down to the bottom of those little diamond-shaped windows, which were about 12 feet from the ground. He further stated that he noticed on the outside of the wall a perpendicular crack through the outer side of the cement, but this crack did not run through the wall; that there were no cracks through the wall; that on the inside of the wall he noticed three small perpendicular cracks; that these three cracks that he found on the inside of the wall did not appear on the outside; that there is one small crack in the west wall, hut it does not go through the wall at all; that he made the measurement of the height of the walls and found them to be 21 or 22 feet from the ground. He further stated that he had examined the walls on the morning that he testified, and that they were just the same then as they w,ere when he was there on the first trip. The witness stated in his opinion that the north and south walls in the building should not be utilized in rebuilding, but that the east and west walls could be used up to a certain height of some 8, 10, or 12 feet. The testimony is conflicting as to whether or not the east and west wails could be used as a basis for rebuilding and in placing the building back in the condition it was before the fire.

The first question presented for our consideration is appellee’s motion to strike out the bills of exception filed in this case. By agreement of the parties hereto, the appellee’s motion to strike out the bills of exception was submitted to be considered with the main case upon the merits of the appeal. The district court, in which the case was tried, convened September 5th and adjourned September 24, 1913. In the order overruling the motion for new trial, exception was taken to the action of the court, and notice of appeal was given and noted in the order. The following order was also added: “It is further ordered that the parties hereto do have 60 days from and after adjournment of this term of the court within which to prepare and file statements of facts and bills of exception.” It is asserted that such order is without authority of law in that there was no good cause shown granting 60 days in which to file bills of exception. The act of the Legislature in question is as follows: “When an appeal is taken from the judgment rendered in any district or county court, the parties to the suit shall be entitled to, and they are hereby granted, 30 flays after the day of adjournment of court in which to prepare or cause to be prepared and to file a statement of facts and bills of exception; and, upon good cause shown, the judge trying the cause may extend the time in which to file the statement of facts and bills of exception.” Acts 31st Leg. (1st Ex. Sess.) c. 39, § 7. The bill of exception in this case was not filed within 30 days, but was filed within 60 days. The court had the right to extend the time to file the bill of exceptions upon good cause shown. Having made the order extending the time, we think the presumption is that such cause was shown or the order would not have been granted. Railway Co. v. Cox, 105 Tex. 40, 143 S. W. 606; Id., 104 Tex. 556, 140 S. W. 1078. The motion of appellee is therefore overruled.

Appellant, by his first assignment, complains of the action of the court in overruling its special exception above set out. Under this assignment, it presents the following proposition: “The allegations in plaintiff’s supplemental petition, found in paragraph 3 thereof, to the effect, in substance, that, if the policy sued on covered other buildings than plaintiff’s concrete building, the inclusion in said policy of the other property was in violation of instructions given to defendant’s local agent by the plaintiff, and that the policy therefore should be reformed so that it should cover upon the concrete building alone, were matters which should not have been pleaded in the supplemental petition, because the said allegations stated a new cause of action, and the special exceptions of the defendant thereto that the same should be stricken out, because the matters pleaded were not in replication to any matter pleaded by the defendant, should have been sustained.”

Appellee having instituted his suit upon the policy as he claimed it to be, and which in any event covered the concrete building, there was no necessity to allege that it did not in fact cover the iron building in order to plead his cause of action. There was no claim made by him for injury to the iron building by fire, and, until appellant sought to show that it was void by reason of additional insurance having been obtained on the iron building, there was no necessity to allege other facts not material to his recovery. Unless the additional insurance plea was met by some reply showing that it did not or ought not apply, appellee could not have introduced proof to that effect. Until appellant’s answer was filed, appellee was not called upon to show that the iron building was not included in the contract insurance. The policy declared on was not void. It could he made so only by proof aliunde. To meet the plea made as a predicate for such proof, we think it was proper for ap-pellee to reply, setting up the facts which would defeat the forfeiture of the contract. And the fact that the supplement set up there was in fact no contract of insurance covering the iron, building, and that, if such policy was made to read so as to cover that building, it was a fraud, did not set up a new and different cause of action, but was an answer which, if true, prevented appellant from defeating appellee’s cause of action by setting up a contract of insurance which was never made but, if made, was made to cover other property inserted by the fraudulent acts of its agent. We understand under the rules the plaintiff may allege new facts by supplemental petition in addition to those set out in the original petition in reply to the defendant’s answer. Bond v. Hdw. Co., 94 S. W. 144; Townes on Pleading, p. 307; Cotulla v. Baslow, 115 S. W. 294. The first assignment is overruled.

By the second, third, and fourth assignments, the appellant assigns error to the action of the court in giving his charge and submitting questions for the consideration of the jury, and in refusing certain specially requested charges. The court instructed: “You are charged that a building is not considered a total loss by fire so long as its identity as a building is left, and so long as the remnant may be reasonably adapted to use as a basis upon which to restore the building to the condition in which it was before the injury. But it is a total loss unless the remnant after the fire is of that substantial character that, if the same was restored or repaired, it would be considered the old structure and not a new building.” The following question was asked the jury: “Was the concrete building owned by plaintiff, covered by the policy of insurance in this case, a total loss by fire of December 19, 1911?” To which the jury answered, “Yes.”

The court refused the following requested charge by appellant: “In considering question No. 1 of the court’s charge, you are instructed that there can be no total loss so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury. Whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant as such basis.”

The appellant also requested the court to submit the following question, which was refused: “Would a reasonably prudent owner, uninsured, desiring such a structure as the concrete building was before the fire, in proceeding to restore it to its original condition, utilize any part of either the east or west walls? If so, what portion of either or both, giving dimensions.”

The appellant presents as propositions that the charge of the court did not correctly define a total loss; and further “the charge was erroneous in that, before the jury could find that the building was not a total loss, they would have to find: First, that the identity of the structure as a building was left; and, second, that the remnant, if any, might be reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury.” Second proposition: “A building is not considered a total'loss by fire as long as the remnant, if any, is such that a reasonably prudent owner, uninsured, desiring such a structure as the building was before the fire, in proceeding to restore it to its original condition, would utilize it as a basis upon which to rebuild.” We should add as a part of our findings in this case that the roof and all the woodwork in the building was totally destroyed and only the walls left standing, as heretofore described. The witnesses described the fire as having been very hot and the heat intense. The walls standing are described as disintegrating at least to the depth of about one inch, except in some portions, in which it is claimed, by appellant’s testimony, it appears to be intact. There is no evidence as to what it would cost to put the walls left standing in a condition for a basis to place the building in the condition it was before the fire, or the value of the walls standing or the extent of the depreciation in the building injured by the fire. There is no estimate made of the cost of this necessary work to take the walls down to 8, 10, or 12 feet in height and to put cement plaster over the outside. There is no testimony of the cost of the work or the value of the walls shown in the record. Nothing shown except as to their condition.

Appellant relies upon Insurance Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797, for the proposition that the trial court, in his main charge, did not correctly define “total loss,” and erred in refusing to give appellant’s requested instruction. It is asserted that whether the remnant of a building is reasonably adapted for use as a basis upon which to restore the building, and whether so adapted, depends upon the question of whether a prudent owner, uninsured, desiring a structure like the one in question was before the injury, would, in proceeding to restore the building to its original condition, utilize such remnant for such basis. The McIntyre Case supports the proposition and lays that down as the proper rule, especially in the kind of case then under consideration. It should be noted, however, that the building in that case had been only partially damaged, and the evidence indicates the greater per cent, of the building was uninjured by the fire and was standing practically intact. The particular question there under consideration was the admissibility of testimony of several expert witnesses that “the cost of repairing and restoring said building to its original usefulness, strength, and utility; that this could be done at a cost of from $1,200 to $1,800, the value of tlie material still uninjured in said house, and that the same was worth about $2,500; that the value of the house after the fire was $2,500; that about 90 per cent, of the material still in the house after the fire was uninjured, and that the remnant of said building could be used for reconstructing said building; that only about 20 per cent, of the building had been destroyed; that it could be renewed without tearing down.” This evidence was excluded by the trial court in that case. The issue from the opinion of the Supreme Court appears to be whether the value of the building and the remnant or the cost of restoration was admissible on the question of total loss. That court then proceeded to examine the question in the light of adjudicated cases, and concluded by holding the testimony admissible, and announced the rule for determining when a building was a total loss, as above set out. The rule there determined especially applied to the facts of that ease, upon the admission of the testimony excluded. In order to ascertain the particular question discussed by the court, and how and when the rule announced is applicable, we believe it can best be determined by taking excerpts from the opinion itself and part of some of the quotations _ from other decisions discussed therein. The case of Insurance Co. v. Fogarty, 19 Wall. 640, 22 L. Ed. 216,. is discussed and quoted. The quotation concludes: “If no piece recovered was of any use, or could be applied to any use connected with the machine of which it was a part, without more expense on it than its original cost, then there was no part of the machinery-saved, however much of rusty iron may have been taken from the wreck.” The case which is mainly relied upon for the rule is an English case, Irving v. Manning. This case the court discussed at length, and the facts of that case from the opinion of the Supreme Court appear to be that the suit therein was based upon a policy for £3,000, claiming a total loss of the ship insured, valued in'the policy at £17,500. During the voyage the vessel was so damaged as to be incompetent to proceed without repairs. The necessary expenditures to have so repaired the vessel would have amounted to £10,500, and the ship would then have been worth only £9,000, which was then, and at the time of the policy, her marketable value. After discussing this case and quoting from it, our Supreme Court said: “This and other English authorities heretofore cited, in this opinion, show that the rule is settled in English practice; that the test by which it must be determined whether there has been a total loss of the ship is whether she has received such extensive damage that it would not be reasonably practical to so repair her. The true inquiry is: ‘What a prudent uninsured owner would have done in the state in which the vessel was placed by the peril insured against.’ That question being answered, m .most cases at least, 6y a determination of the comparative cost of such repairs with the actual value of the ship after repair. [Underscoring is ours.] That it appears under the English rule testimony as to costs of repairs is of very material character, and no question could be made as to its admissibility.” After reviewing a number of American authorities, the conclusion is reached By the court that the cost of repairs, removing dé-bris, and the like, under both English and American authorities, is admissible as testimony, and, as seen, the costs of repairs is the determining question for the rule whether a reasonably prudent uninsured owner would utilize the remnant. Such fact must be the determining question with any owner who wishes to restore his building. If it will cost as much or-more to utilize the remnant as to use the new basis, certainly a prudent owner would not use it. If there is no evidence as to what the cost would be, a jury will not be able, we think, to say what a prudent owner would do in such a case. There being no evidence in this case presenting the issue, the court is not required to charge on it, and should not do so.

In this case each party confines the testimony to the question whether any portion of the east and west walls could be utilized as a basis for reconstructing the building. Ap-pellee showed by several witnesses that in their opinion the walls could not be so used. Appellant, by its testimony, that they could be used. This evidence would not have called upon a reasonably prudent owner to determine whether the remnant of the building could be utilized, but he would have to determine only which opinion was the correct one, as to the use of the remnant. That was all the jury, under the evidence, was required to do, and that was the issue submitted to them by the court. The definition given by the trial court went as far as the facts authorized him to go, and it appears to us was correct, as applicable to the facts before the jury. The court told the jury if the identity of the building was left it was not a total loss. Appellant doubtless' will assent to that proposition. “And so long as the remnant may be reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the injury,” it was not a total loss. Appellant’s testimony is that the remnant was in that condition, and, if the jury had accepted its testimony, they would have found there was not a total loss. The court, after telling the jury what would “not be a total loss,” defined what “would be a total loss.” This latter part of the definition does not appear to have been criticised. The only error urged is that the jury were not told that, if a prudent owner would have utilized the remnant as a basis, then it would not be a total loss. We do not think, under the facts of this case, such a charge was required or applicable. From aught that appears in the testimony, the costs of preparing these walls as a basis for a reconstruction may be more than erecting a new wall, or than what they originally cost, or their value at the time of the Are. If that is true, as said in the case of Insurance Co. v. Fogarty, 19 Wall. 640, 22 L. Ed. 216, supra, then there is no part of the walls saved. A prudent owner takes out an insurance policy for indemnity against loss, and, if the cost in repairing the remnant equals or exceeds the value of the wall, then there is no part of it saved. It therefore becomes necessary to show something of its value, the cost of repairing, etc., in order to determine what a reasonably prudent owner would do. In this case appellee made a prima facie case by showing that the standing walls could not be utilized for reconstructing the building, and that there was a total loss. Appellant sought to rebut the prima facie case showing certain portions could be used, but failed to show, if used, that the loss which it had insured against would not be sustained by using the walls. The naked question was therefore presented by the evidence, for the consideration of the jury, whether the walls could be utilized.

The case of Northwest Mutual Ins. Co. v. Rochester German Ins. Co., 85 Minn. 48, 88 N. W.- 265, 56 L. R. A. 108, cited by appellant, cites and comments upon the McIntyre Case, approving it. In that case the proof showed the value of the walls remaining. It will be observed also that the charge of the trial court was subject to criticism in other parts than that urged in this case. That court, in the course of the opinion, said: “If, then, as a reasonably prudent business proposition, the remaining portion of the building could be utilized, in place, for the purpose of construction or repairing, the insurer must be permitted to exercise its option to either reconstruct or pay the reasonable cost thereof, as found by the board of arbitrators.” The value enters into the consideration as a business proposition, and, unless the testimony shows its value, it is not a business proposition. The fact that the wall could be used as a basis does not show that it would be a “prudent business proposition,” either on the part of the insured or the insurer. It might be the height of folly to so use it from the standpoint of business, and may cost more than its value to so utilize it.

The facts of this case are nearer like the facts in the case of Insurance Co. v. Garlington, 66 Tex. 103, 18 S. W. 337, 59 Am. Rep. 613, in which Judge Stayton, for the Supreme Court, declared that the rule announced in the case of Williams v. Insurance Co., 54 Cal. 450, 35 Am. Rep. 77, is the “true rule,” and quotes the rule, which is as follows : “A total loss does not mean an absolute extinction. The question is not whether all the parts and materials composing the building are absolutely or physically destroyed, but whether, after the Are, the thing insured still exists as a building. Although you may And the fact that after the Are a large portion of the four walls were left standing, and some of the iron work still attached thereto, still, if you And that the fact is that the building has lost its identity and speeiAc character as a building, you may And that the property was totally destroyed, within the meaning of the policy.”

In the case of Murphy v. Insurance Co., 25 Tex. Civ. App. 241, 54 S. W. 407, Judge Raney laid down the rule, the language of which is substantially that given by the trial court in this case in the charge to the jury, who evidently followed the rule announced in that case. The facts in that case are in many of their features similar to this, and we believe the charge of the court in this case sufficiently accurate, so that a jury of ordinary understanding would be able to determine whether the building was a total loss. Insurance Co. v. Meyer, 9 Tex. Civ. App. 7, 29 S. W. 93; 19 Cyc. 833.

We believe, under the facts of this case, the instruction given by the trial court did not prejudice the rights of appellant and was as favorable to it as the facts would permit. We do not believe the charge given or refused on this point should reverse the case, and therefore the second, third, and fourth assignments are overruled.

The Afth assignment of error is as follows: “The court erred in rendering judgment, with interest from the date of the Are, because, under the terms of the policies sued on, any money that defendant was liable for was not payable until 60 days after the receipt of proof of loss by defendant. The undisputed evidence shows that a proof of loss was delivered to defendant by plaintiff on February 6, 1912, and plaintiff could only be entitled to interest from April 7, 1912. The judgment should therefore be for $4,890.75, with interest thereon from the date of the judgment.” It is contended that the judgment is excessive to the amount of $81 interest, and that, under the terms of the contract sued on, plaintiff was required to furnish a proof of loss. The policy provided that any sum for which the company might be liable to the plaintiff would not be due and payable until 60 days after the receipt of the proof of loss, and the proof of loss was Aled with the company February 6, 1912. Sixty days thereafter* would have fallen on April 6, 1912. The Are occurred in this case on the 19th day of December, 1911. The court rendered judgment for interest from that date.

It appears to be the holding of' the Courts of Civil Appeals that, where a building is destroyed, the amount is due when the loss occurred, and it will bear interest from that date. We shall not discuss any doubt that may be suggested by the interpretation of the policy, but shall regard the rule as settled by the courts until the Supreme Court shall hold otherwise, if the holding of the Courts oí Civil Appeals is not correct. Insurance Co. v. Chase, 33 S. W. 602; Insurance Co. v. Leverton, 33 S. W. 579; Insurance Co. v. Ruddell, 37 Tex. Civ. App. 30, 82 S. W. 826; Insurance Co. v. Ice Co., 6.4 Tex. 578; Insurance Co. v. Morrison, 162 S. W. 411. The fifth assignment is therefore overruled.

We believe the case should be affirmed; and it is accordingly so ordered.