author: CARD, J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. THOMAS.
    (No. 5631.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 15, 1916.
    Rehearing Denied April 26, 1916.)
    Telegraphs and Telephones <s=»66(4) — Action eor Negligence — Proximate Cause.
    A complaint alleged that plaintiff was a subscriber to defendant’s telephone system; that defendant agreed to furnish him telephone communication, especially to the fire station and the residence of the fire chief; that after plaintiff’s residence was discovered to be on fire and beyond plaintiff’s control, he was unable to get a response to his telephone calí for about 15 minutes; and that a neighbor tried to get the central office, but could not, whereby the fire department was delayed 20 or 30 minutes, in consequence of which the residence was partly destroyed, to plaintiffs damage. The evidence tended to show that the delay might have been caused 'by the failure of the alarm bell at the fire station to work, and also that the water pressure was weak and the hose defective. Held, insufficient to show that the negligence of the defendant was the “proximate cause” of the loss.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 63; Dec. Dig. <§=> 66(4).]
    Appeal from Guadalupe County Court; J. B. Williams, Judge.
    Action by W. C. Thomas against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered that plaintiff take nothing.
    A. P. Wozencraft, S. P. English, E. W. Wozencraft, and J. D. Prank, all of Dallas, for appellant. Greenwood & Short, of Se-guin, for appellee.
   CARD, J.

Appellee sued the Southwestern Telegraph & Telephone Company for damages, and alleged substantially that the telephone company owned and operated a telephone system in the city of Seguin, under a franchise from the city, and maintained a central office or exchange, where connections were made with its various telephones; that appellee was a regular subscriber, or patron, and had a telephone in his residence, for which he paid appellant $1.50 per month as rent, and for this consideration “defendant agreed to furnish to the plaintiff at all times telephonic communication over the telephone in plaintiff’s house with all other telephones in said city of Seguin operated by the defendant, and especially the ones at the fire station and at the place where the fire chief lived, as well as the long-distance services to other places outside of Seguin”; that about 2:30 in the morning the plaintiff’s private residence was discovered to be on fire, and the fire had gotten under considerable headway when discovered, and. it was impossible for plaintiff and his family to extinguish the same; that he went to the telephone in his residence and rang the phone bell five or six times, trying t'o get in communication with the central office, but failed to get a response, and then his daughter made several attempts to get a response from “Central,” but failed 'to do so until she had spent about 15 minutes; that H. E. Short, another subscriber, saw the fire consuming plaintiff’s residence, and he tried to get the central office, but likewise failed. It is alleged that a volunteer fire department is maintained in Seguin, and George J. Hempen is the chief, who was to be notified by the company in case of fire, and if the central office had responded to the calls of plaintiff and his daughter or of H. E. Short, who was acting for plaintiff, at the time the fire was discovered, the members 'of the fire department would have been notified, and would have responded, together with friends and neighbors, who would also have been notified, and the two-story part of his house would have been saved. The house was composed of a one-story part where there was a store room, kitchen, and dining room, and a six-room two-story part of the residence adjoined the three one-story rooms where the fire originated. It is contended that the two-story part would have been saved if the plaintiff had been able to get central, and thereby have notified the fire- department, but on account of the delay 30 minutes were lost, during which time the fire reached the two-story part of the house and got beyond control; that if the calls had been put through promptly, the fire department would have arrived 20 or 30 minutes earlier than it did, and would have saved the two-story part, but on account of the delay, the fire had reached the two-story part, and the water pressure was not strong enough to throw water on this part of the house, but was strong enough t'o reach the one-story part. The value of the two-story part, for which the suit was brought, is laid at $995. The petition alleges that the company ought to keep its lines in such condition that when a residence phone rings, a large alarm bell would ring at the central station or exchange, and given an alarm so as to awake the night operator, and the company was negligent in not so providing alarm bells. On answers to special issues judgment was entered in favor of appellee for $475, from which this appeal is prosecuted.

We will not state in detail the matters of defense pleaded, since all that will be necessary will appear in the following discussion: The judgment in this cause cannot stand because it is based upon speculation and acts of negligence too remote. In other words, the negligence of the appellant is not shown to have been the proximate cause of the injury. The whole case is predicated upon the theory that if the call had been answered promptly by the exchange operator, the fire would have been extinguished before it reached the two-story part. This presupposes that the fire department would have responded promptly, and there would have been no other mishap of any kind; that the water pressure would have been ample, and the fire apparatus in good working order, no adverse winds, etc. Appellee says he relied on the telephone company to get in communication with the fire station. He says he had a contract with the telephone company to furnish him telephonic communication with the other phones, including the fire chief’s. Tiffs seems to have been the ordinary subscriber’s contract. Hempen, the fire chief, testified as to the equipment for fire fighting, etc. There is testimony which indicates that the delay may have been caused by the- failure of the alarm bell at the fire station to work. This was installed and maintained by the city of Seguin. The fireman who slept there could not hear an ordinary telephone bell from where he slept, but could hear the large bell. If it failed to work, he would not awaken. Some testimony indicates that the water pressure was weak, and that the fire could, not be put out on that account; but one witness thought it was on account of defective hose; same having holes or leaks so as to lower the pressure. But whether it was for want of a proper alarm bell at the fire station that the house was lost, or defective hose or low-water pressure, the appellant would be responsible in neither event. In order to hold the failure of central to take and transmit the call to be the proximate cause of the loss, we must indulge the presumption that everything else would have turned out to perfection; that the fire station bell would have worked, and the fireman would have been awakened; that the department would have been called and would have responded promptly; that the apparatus would have been in good working order, and that nothing would have occurred to pi'event the prompt arrival of the firemen; and then, after they had gotten to the fire, everything else necessary to be done in order successfully to combat the fire would have taken place. It presupposes that the water pressure would have been sufficient, and that the leaky hose would have been sufficient. No adverse wind would have sprung up. In fact, it must be presumed that everything except this failure of the sleeping girl to answer would have moved with clocklike precision. And after all this, how much of the building would have been saved? What man can say?' Indulging all these suppositions, at last we wind up in mere conjecture as to what damage would have been done. To say that the damage is remote and speculative to a high degree, is stating it mildly. In Lebanon, Louisville & Lexington Telephone Co. et al. v. Lanham Lumber Co., 131 Ky. 718, 115 S. W. 824-828, 21 L. R. A. (N. S.) 115, 18 Ann. Cas. 1066, discussing a similar case, it was said:

“The petition does not charge that defendants were under any contract with the city of Lebanon to maintain a fire alarm system in the city, and hence their liability must be determined under their general contract with their patrons. They agree to furnish connection between the patrons, upon request and subject to such reasonable rules as might properly be adopted and enforced in a town the size of Lebanon. Plaintiff, evidently knowing that there was no contract obligation on the part of the defendant companies, which made them liable as though operating a fire alarm system, and, no doubt, realizing that the contract which it did have could hardly be construed so as to charge that the liability sought to be imposed was within the reasonable contemplation of the contracting parties, has sued in tort. The primary question to be determined is: Was the failure of the operator, at the central office of the defendant companies, to furnish promptly the connection between plaintiff’s watchman and the fire engine house the proximate cause of the loss? If it was, the petition states a cause-of action; otherwise, not. The mere facts that the defendant company’s operator was negligent in the discharge of her duty — and, for the purposes of the demurrer it is admitted that she was — and plaintiff suffered a loss are not sufficient to create a liability; but there must to-negligence and loss be added a state of -facts showing that the negligent act was the proximate cause of the loss. The negligence and loss being admitted, do the facts stated as to how the loss was brought about show that but for the negligence it would not have occurred? The defendant companies are not charged with having started the fire, or with having anything to do with .its origin, nor are they asked to respond in damages for the loss of the boiler house; but the _ charge against them is that they are responsible for the spread of the fire to the main building, because they failed to promptly furnish connection with the city fire department. This is the gravamen of defendant's offense.
“An analysis of the petition shows that it charges that, if connection had been promptly established between the watchman and the fire department, the man in charge there would have promptly answered his call, and would have promptly sounded the alarm by ringing the fire bell; that the members of the fire department would have heard the fire bell, when rung, and would have promptly answered the call, and would have reached the fire at least 30 minutes sooner than they did, and before it had spread from the boiler house to the main building; that, after having reached the fire, the fire department would have put it out before it had communicated to the main buildings, and the plaintiff would have suffered comparatively no loss. Each of these five independent links must be forged into a chain in order to connect the negligence of the defendant’s operator with, plaintiff’s loss. It must be presumed that the watchman in the engine house was awake and at his post of duty, ready to answer the call immediately upon receipt of the notice of the fire; that he would at once have sounded the alarm by ringing the bell; that upon the ringing of the bell the members of the fire department, whether paid or volunteers, would have heard the alarm and promptly responded to the call, and would have reached the scene of the fire before it had spread to the main buildings. The fire-fighting apparatus must have been in perfect working order, and the fire department must have succeeded in confining the fire to the - boiler house, and put it out before it had spread to the other buildings. Now, when it is considered that each of these separate agencies is wholly independent of the other, and none of' them under the direction or subject to .the control of the defendants, it is readily seen that, in order to hold that the negligence complained of' was the proximate cause of the injury or loss,, a series of presumptions must be indulged in. Just how far the fire had progressed when first discovered is not shown, but it may be fairly presumed that it had made such headway as to be beyond the control of the watchman. It was past 2 o’clock in the night — a time when most of the inhabitants of the town were probably asleep. As to the extent to which the fire would' have spread before the fire department reached there, if it had been promptly notified, is a matter of pure conjecture, and the same may be said as to whether or not the fire department would have been able to subdue the flames and prevent the spread of the fire to the main buildings if they had been promptly called. We know that fire fighting, under the most favorable circumstances, and with the most approved appliances and modern machinery, is an uncertain and frequently disastrous business. No two fires are alike, and it is indulging in the purest speculation to try to figure what, could have been done under other conditions and dif- - ferent circumstances. Had the fire department been notified and arrived promptly, they might have reached the fire while it was still confined to the boiler house, and they might not, so they might have succeeded in confining it to that building and prevented its spread, and again they might not. * * *
“If everything had worked out as plaintiff figures it should and would, had there been no delay in effecting the connection, the most that can be said is that the main buildings could probably have been saved. This is not sufficient. Plaintiff, in order to hold defendants liable, must show more than a possible responsibility, or even a probable responsibility. It must show that but for the negligence the loss would not have occurred, and tbe facts necessary to establish this connection between negligence and loss must not rest upon uncertain or indeterminate premises. If the inference that the acts complained of are the proximate cause of the loss is to be reliable, the premises from which it is drawn must be fixed and certain. The loss in this case was due to the fire. This was the primary cause, and, in order to make the negligence of defendants intervene and become the efficient cause, it must be established with certainty that but for their negligence the fire would have been confined to the boiler room. Now, does the petition state such facts as warrant the inference that but for the negligence complained of the fire would not have spread V We think not. The petition proceeds upon the hypothesis that all of the independent intervening agencies would have worked together harmoniously, promptly, and efficiently. This is a mere conclusion of the pleader. If the agent of defendant companies had acted promptly, the watchman in the fire tower would have likewise done so, and so on down through the list of the different agencies called into play. Theoretically this is all right, but, as a legal proposition, it is unsound.”

Practically to the same effect is the case of Volquardsen v. Iowa Telephone Co., 148 Iowa, 77, 126 N. W. 930, 28 L. R. A. (N. S.) 554, and the same court later, in the case of Providence Washington Ins. Co. v. Iowa Telephone Co. (Iowa) 154 N. W. 876. In the Volquardsen Case, supra, the court said:

“The fire was the primary cause of the loss. Tho defendant did not start it, or have aught to do with its origin. The charge against it is that the negligence intervened as the efficient cause in the omission to do that which would have resulted in the extinction of the fire. Of course, if the failure to put out the fire was the direct and natural consequence of the unreasonable delay in making the connection, then there could be no doubt as to defendant’s liability. But several links in the chain of sequences are involved in doubt and speculation. The fire was burning, not only before plaintiff reached the receiver, but before he was awakened by his wife, who had heard the crackling of fiames. Conceding that he was at the telephone 9 or 10 minutes, though minutes seem hours at such times, and that connection was made at the central office within two minutes thereafter, yet, as the hose company had been notified by another, there could not have been a delay of over more than 10 or 12 minutes, and, when the firemen arrived, the fire was beyond control. At what time must they have been on the ground to have saved the property? No one can answer save from conjecture. All realize that in such emergencies time is precious, but who cau say from the situation as presented in this ease how many minutes meant the loss of the plaintiff's property? Suppose the connection at the central office had Seen made promptly, would the fireman in charge of the fire station have responded promptly, and promptly have rung the fire bell? Would the members of the department have heard and promptly have repaired to the scene? Was the apparatus for extinguishing the fire in working order and the water supply accessible and sufficient? Would all of these intervening agencies have operated harmoniously and efficiently and with such promptness as to have put out the flames in time to have avoided a total loss? Manifestly these are matters of speculation, and yet all this must be assumed if the loss is to be traced to defendant’s negligence. Each of these independent agencies necessarily must be linked together in a line of causation in order to connect it with the loss. None of them were under the direction or control of the telephone company. Moreover, how far the fire had spread at the time the firemen would have been likely to have reached the scene had the connection been promptly made is left by the evidence a matter of speculation merely. And then there are the weather conditions and the character of the material to be taken into account. After the experience of ages, fighting fire_, even with modem machinery and apparatus, is precarious business, and uncertain in its results. Had everything worked out as calculated, after the fire was over probably some of the building and machinery might have been saved. But the basis for a legal inference of this kind was not furnished by the evidence. The negligence of the telephone company may be ascertained, but that falls short of connecting it with the loss, which is only possible through agencies entirely independent. If it, as the dominating force, acted through the intervening agencies, as mere instruments or vehicles in a natural line of causation, to the loss, there would be ground for saying defendant was liable. But the intervening agencies were independent, and what might have happened pure matter of speculation.”

See, also, Feille v. San Antonio Traction Co., 48 Tex. Civ. App. 541, 107 S. W. 368, 13 Cyc. pp. 25, 26 & 27.

The judgment is reversed, and judgment is here rendered that appellee take nothing.
      <§r=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    STOCKWELL v. MELBERN et al.
    (No. 7142.)
    (Court of Civil Appeals of Texas. Galveston.
    March 16, 1916.
    Rehearing Denied April 13, 1916.)
    1. Pleading <§=>349 — Judgment—Admission of Cause of Action.
    In a suit by the seller of land against his own agent and the buyer for debt due on the written contract, where the buyer answered in the nature of confession and avoidance, asking affirmative relief on the ground of fraud, and the seller’s agent did neither, but, in effect, admitted his liability on the cause of action against him, the court should have entered judgment for the plaintiff against the agent.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 1067-1069; Dec. Dig. <§=>349.]
    2. Pleading <§=>228 — Exception—Admission.
    An exception to a portion of a cross-bill admits the truth of the allegations excepted to.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584^-590; Dec. Dig. <§=>22SJ
    3. Vendor and Purchaser <§=>337 — Remedies of Buyer — Fraudulent Representation-Lien for Purchase Money.
    A buyer of land induced to contract by the seller’s claim that he owned good title, which he cid not have, the claim being fraudulently made to induce the buyer to part with his money, was entitled to a Hen upon the land for the purchase money paid.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 985-990; Dec. Dig. <®==>337.]
    4. Judgment <§=>256<2) — Support by Findings.
    In a suit by the seller of land against the buyer and the seller’s agent on the contract, the buyer defending by asking affirmative relief on the ground that the contract was procured by the joint fraud of the seller and Ms agent, where the jury found that the seller and his agent concealed from the buyer that there had been claims of vacancy filed against the land, that the buyer would not have contracted had such claims of vacancy been known to him, that the seller knew the fact, that when the buyer contracted he did not know that the seller was going to hold up the check in the seller’s favor given him by the agent, and that the concealments and acts on the part of the agent were willfully made and, done with the intent to deceive the buyer, the court’s refusal to render judgment for the seller on the jury’s response to a special issue that the contract was a bona fide contract was proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 447; Dec. Dig. <⅜=>256(2).]
    Error from District Court, Brazoria County; Samuel J. Styles, Judge.
    Suit by Elmer P. Stockwell against Charles W. Melbern and another. To review a judgment for the named defendant on his cross-bill, plaintiff brings error.
    Affirmed in part; reversed and rendered in part.
    See, also, 168 S. W. 405.
    Elmer P. Stockwell, of Angleton, for plaintiff in error. W. J. Johnson and Edward S. Boyles, both of Houston, for defendant in error.
   McMEANS, J.

Elmer P. Stockwell brought this suit against Charles W. Mel-bern and J. J. West for debt in the sum of $1,000, and 7 per cent, interest thereon from December 24, 1912, alleged to be due upon a written contract.

Charles W. Melbern answered, admitting that according to the apparent tenor of .the contract he was indebted to Stockwell for said sum, and admitted plaintiff’s cause of action, except in so far as the same should be defeated by the subsequent allegations of his answer. He then pleaded a failure of consideration for the execution of the contract, and that the contract was procured by the joint fraud of Stockwell and the defendant J. J. West, setting out with particularity the facts constituting the alleged fraud and failure of consideration, which need not be here repeated. He also filed a cross-bill against both Stockwell and West in which he sought a recovery of $850 as actual damages, with 6 per cent, interest thereon from September 24, 1912, and for cancellation of said contract, and for the cancellation of a due-bill of $150 theretofore executed by him to Stockwell, and for the establishment and foreclosure of a vendee’s lien upon certain land, the ■ subject-matter of the contract, in part payment for which the $850 and the due-bill for $150 had been given, and for exemplary damages in the sum of $10,000.

J. J. West filed an answer in which he, in effect, admitted as true the allegations of Stockwell’s petition, and denied the allegations of Melbern’s cross-bill.

Stockwell filed a general demurrer and a special exception to Melbern’s cross-bill, which were overruled, and he duly preserved his exceptions.

The case was tried before a jury upon special issues, and upon the coming in of the verdict a judgment was rendered thereon in favor of Melbern on his cross-bill against Stockwell for $850, and interest, and canceling of the contract between Stockwell and Melbern and West for the purchase of lands, and canceling the duebill for $150 executed by Melbern and West to Stockwell, and adjudging all costs against Stockwell, and foreclosing a lien in favor of Melbern as against Stockwell on certain lands and ordering its sale as under execution. From this judgment Stockwell has brought the case to this court for review by writ of error.

The first assignment of error complains that the court erred in overruling Stockwell’s general demurrer to Melbern’s answer and cross-bill. The cross-bill is too lengthy to be copied in this opinion, and it must suffice, therefore, to say that after a careful consideration of the assignment and inspection of the answer we have concluded that it is without merit, and is overruled.

The second assignment complains that the court erred in not rendering judgment for plaintiff in error on the admission in the pleadings of West and Melbern.

Melbern’s answer was in the nature of a confession and avoidance. The matters alleged in avoidance were submitted to the jury, and under their findings a judgment was properly entered in his favor. But this is not true as to West. He did not plead in avoidance of the cause of action asserted by Stockwell, or ask for affirmative relief against him, but the effect of his answer was to admit his liability on the cause of action assorted against him by Stockwell. This being true, the court should have entered judgment for Stockwell against West for the amount sued for; and this court proceeding now to enter such judgment as the court below should have entered now renders judgment for Stockwell against West for $1,000, with 7 per cent, per annum interest thereon from September 24, 1912.

Stockwell specially excepted to that portion of Melbern’s cross-bill in which the latter sought to have established a lien on the land, the subject-matter of the contract, for part of the purchase money of which he had paid to Stockwell the sum of $850, alleging that he was induced to make the payment through the fraudulent representations of Stockwell and West. The third assignment complains of the action of the court in refusing to sustain this exception.

The effect of an exception is to admit the truth of the allegations excepted to. Viewed in this light, Stockwell had procured from Melbern $850 as a payment upon land which Stockwell claimed he owned by a good title which he did not have, and the claim was fraudulently made to induce Mel-bern to part with his money. If Melbern, under his pleadings and proof, was entitled to a rescission of the contract of sale and a return of the purchase money he had paid to Stockwell, ,we see no reason why an implied lien upon the land did not exist in his favor as security therefor. 2 Jones, Liens, §§ 1105, 1106, lays down the rule that:.

“Where a purchaser properly declines to complete a contract of sale, it seems there should be a lien for the purchase money paid upon it, wherever a vendor’s implied lien exists.” Morris v. Holland, 10 Tex. civ. App. 474, 31 S. W. 690 ; 3 Pom. Eq. par. 1263.

The fourth assignment complains that the court erred in not disposing of all the' parties and all the issues by the judgment appealed from. We had occasion to pass upon this exact question upon an appeal prosecuted by Stockwell from a judgment refusing to grant his application for a temporary injunction restraining the enforcement of the judgment upon the ground upon which this assignment of error is based, and there overruled his contention in that regard. Stockwell v. Mel-bern, 168 S. W. 405. We are satisfied with the ruling there made, and see no reason for receding from it. The assignment is overruled.

The fifth assignment complains that the court erred in not rendering judgment for Stockwell upon the answer of the jury to special issue No. 2. We think the assignment is not well taken. In order to a clear understanding of the assignment and our ruling upon it, we here set out all the special issues submitted to the jury, and the answer of the jury to each, viz.:

“Question No. 1: Was the cross-defendant J. J. West on the 28th day of September, 1912, and at the time of the entering into the contract which has been presented in evidence, the agent of the said Elmer P. Stockwell for the sale of said land in question to the said O. W. Melbern? Answer: Yes.
“Question No. 2: At the time of the entering into the contract in evidence by and between the various parties to this suit-was the cross-defendant West a bona fide purchaser with the said Melbern, or was the sale to him without consideration? Answer: The contract was a bona fide contract.
“Question No. 3: Hid the cross-defendants, Stockwell and West, or either of them, with the other’s knowledge, conceal from the cross-plaintiff, O. W. Melbern, the fact that there had been claims of vacancy filed against this particular land, or any part thereof? Answer: Yes.
“Question No. 4: If you answer the foregoing question in the affirmative, then answer the following question: Would the cross-plaintiff, Melbern, have entered into said contract had such filings and claims of vacancy against said land been made known to him? Answer: No.
“Question No. 5: Did the cross-defendant Stockwell know, or would he reasonably have known, that the said cross-plaintiff, Melbern, would not have entered into said contract had the claims of vacancy, if any, been known to the said Melbern? Answer: Yes.
“Question No. 6: If you answer question No. 3 in the affirmative and question No. 4 in the neg-ative and question No. 5 in the affirmative, then you will answer the following question: Did the defendant Melbern, after acquiring knowledge of the alleged fraud, if any, ratify the contract entered into on the 26th day of September, 1912, and placed in evidence in this case? Answer: Yes.
“Question No. 7: Did the defendant Mel-bern know that the plaintiff Stockwell was going to hold up the check in his favor given him by the defendant West? Answer: No.
“Qiiestion No. 8: If you answer the foregoing question in the negative, then would the defend'ant Melbern have entered into said contract had he known that said cheek was to be held up ? Answer: No.
“Question No. 9: If you answer interrogatory No. 3 in the affirmative and interrogatory No. 7 in the negative, and interrogatory No.' 8 in the negative, then were such concealments and acts on the part of the cross-defendants Stockwell and West, willfully made nnd done with the intent to deceive the said Melburn? Answer: Yes.
“Question No. 10: If you answer the foregoing question in the affirmative, then, how much, if any, punitive-or exemplary damages should the cross-plaintiff, Melbern, receive against the said Stockwell and West? Answer: Not any.”
Plaintiff’s requested charge No. 2:
“Did or did not cross-plaintiff, Melbern, after he was apprised of the vacancy claim and after he had an opportunity to investigate same, either by writing or by actions, or both, reaffirm or ratify the contract from Stockwell? Answer: In first letter defendant ratified, but after further investigation he did not.”
Plaintiff’s requested charge No. 6:
“Did the defendant Melbern, after acquiring knowledge of the alleged fraud, if any, promptly disaffirm the said contract? Answer: Yes.”

While it is true that the jury answered.interrogatory No. 2 that the contract was a bona fide contract, it will be clearly seen from the answers to the other questions that the jury meant simply that the contract .was entered into by Melbern with West in good faith and without any knowledge of any of the fraudulent matters which afterwards came to his attention. This is shown by the finding of the jury that Stockwell and West concealed from Melbern the'fact that there had been claims of vacancy filed against the land, and the finding by the jury that Mel-bern would not have entered into said contract had such findings and claims of vacancy against said land been made known to him; and the further finding that Stockwell knew that Melbern would not have entered into said contract had the claims of vacancy been made known to him, and the further finding by the jury that at the time Melbern entered into the contract he did not know that Stockwell .was going to hold up the cheek in his (Stockwell’s) favor given him by the defendant West, and the further finding by the jury that the concealments and acts on the part of the. said Stockwell and West were willfully made and done with the intent to deceive said Melbern.

In this view we think it was not error for the court to refuse to render a judgment for Stockwell upon the answer of the jury to the second special issue. This assignment is overruled.

We think -the sixth and seventh assignments are without merit, and they are overruled.

We are of the opinion that the judgment in favor of Melbern against Stockwell should he affirmed, and, in view of the admission in West’s answer, that the judgment in favor of West should be reversed, and judgment rendered in Stockwell’s favor against him, and it has been so ordered.

Affirmed in part; reversed and rendered in part.
      <&soFor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©^>Por other eases see same'topie and KEY-NUMBER in. all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. EDMUNDSON.
    (No. 5598.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 8, 1916.
    Rehearing Denied April 26, 1916.)
    1. Libel and Slandek @=>45(2) — Privileged Communication.
    Letter from the superintendent of a railroad to the superintendent of an express company, asking discharge, for stated reason, of one employed by the express company as express messenger, but who also handled the baggage of the railroad company, which repaid the express company part of his salary, was a privileged communication.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 139; Dec. Dig. @=45(2).]
    2. Libel and Slandeb <§=*112(2) — Proof oe Malice.
    Malice, as an essential ingredient of libel, may be proven directly, or by inference from the character of the libelous document, or by circumstantial evidence.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 329; Dee. Dig. @=>112(2).
    3. Libel and Slandeb @=>51(1) — Privileged Communication — Express Malice.
    To make a libel actionable, in case of a privileged communication, express malice must be shown.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 149; Dec. Dig. @=>51(1).]
    4. Libel and Slandeb @=>112(2) — Express Malice — Evidence.
    While express malice, necessary in case of a privileged communication, cannot be inferred from the letter being false and injurious, it can be shown by circumstantial evidence.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §329; Dec. Dig. @=>112(2) J
    5. Libel and Slandeb @=>112(2) — Express Malice — Reckless Statement.
    That a false statement was made with reckless disregard of whether it was true or false would authorize a jury finding express malice.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 329; Dec. Dig. @=>112(2).j
    6. Libel and Slandeb @=>123(6) — Express Malice — Peo oe.
    In case of a privileged communication, slight evidence of malice entitles plaintiff to have his case submitted to the jury.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §363; Dec. Dig. @=>123(6).]
    7. Libel and Slandeb @=>123(6) — Express Malice — Reckless Statement — Evidence.
    Evidence of the making of a charge against plaintiff, constituting a privileged communication, with a reckless disregard or whether it was true or false, held sufficient to go to the jury on the question of express malice.
    [Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. § 363 ; Dee. Dig. @=>123(6).]
    8. Railroads @=>258 — Liabilities Assumed by Purchaser — '“Personal Injury.”
    Injury to character or good name, through libel, is “personal injury” within Rev. St. 1911, arts. 6624, 6625, whereby the purchaser of a railway is charged with payment of subsisting liabilities and claims for death and personal injuries sustained in the operation of the road (citing Words and Phrases, Personal Injury).
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 799-801; Dec. Dig. @=>258.]
    9. Railroads @=>258 — Liabilities Assumed by Purchaser — Injury Sustained in “Operation oe Railroad.”
    The injury sustained by an express messenger employed by an express company, but who also handled baggage of the railroad company, which paid the express company part of his salary, when on a false accusation by the superintendent of the railroad to the superintendent of the express company that he carried a passenger in the baggage car he was discharged, .was “sustained in the operation of the railroad,” within Rev. St. 1911, arts- 6624, 6625, so as to make the purchaser of the railroad take it subject to liability therefor.
    [lid. Note. — For other cases, see Railroads, Cent. Dig. §§ 799-801; Dec. Dig. @=>258.
    For other definitions, see Words and Phrases, First and Second Series, Operate.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by O. O. Edmundson against the International '& Great Northern Railway Company and another. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    Wilson, Dabney & King, of Houston, and F. C. Davis, J. M. Eskridge, and Cobbs, Esk-ridge & Cobbs, all of San Antonio, for appellant. Ernest Fellbaum, Claud J. Carter, Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for appellee.

       Application for writ of error pending in Supreme Court.

   CARL, J.

Appellee, Edmundson, sued T. J. Freeman, receiver of the International & Great Northern Railroad Company, and the International & Great Northern Railway Company, successor in ownership to the properties of the first-named railroad company, for damages on account of an alleged lihelous letter written by one HI. Martin, superintendent of the railroad under Freeman, receiver, to T. N. Edgell, superintendent of the Pacific Express Company, by which last-named company Edmundson was employed. Appellee was employed by the express company as express messenger, and he also handled the baggage of the railroad company; and, while he was employed by the express company and paid by it, he performed a joint service for the express and railroad companies, and the railroad company repaid to the express company a part of Ms salary. While so employed, a negro detective, one Arthur Parrish, working for the George A. Fields Detective Agency of St. Louis, Mo., sent in a report on July 26, 1910, to D. P. Peterson, an officer of the detective agency at St. Louis, in which it was charged that Edmundson had permitted Parrish to ride on baggage car No. 30, International & Great' Northern train No. 6 on that date after Parrish had told appellee he had paid the porter. When this report was made, the following correspondence took place, as a result of which Edmundson was discharged from the express company’s service, and which is made the basis for this suit for libel:

“International & Great Northern Railroad Company.
“H. Martin, Superintendent.
“Palestine, Texas, Oct. 22, 1910.
“Mr. T. N. Edgell, Superintendent Pacific Express Co., Dallas, Texas — Dear Sir: Will you please relieve joint express and baggageman, W. V. Butrell, from service on this line, on account of carrying passenger in baggage car on train 9 July 21, and relieve 0. O. Edmundson [meaning plaintiff] from joint service on account of carrying passenger in baggage car on No. 6, arriving Palestine July 26th.
“Please favor me with your reply.
“Yours truly, [Signed] H. Martin.”
“The Pacific Express Company.
“Superintendent’s Office, Texas Division.
“T. N. Edgell, Superintendent.
“Dallas, Texas, November 15, 1910.
“Mr. 0. O. Edmundson, % X. M. C. A., San Antonio, Texas — Dear Sir: This is to acknowledge receipt of your letter of November 14th. You were relieved from the service because you carried a man in your car without authority.
“Yours truly,
“[Signed] T. M. Edgell, Superintendent.”
“The Pacific Express Company.
“Superintendent’s Office, Texas Division.
“T. N. Edgell, Superintendent.
“Dallas, Texas, December 20, 1910.
“Mr. O. O. Edmundson, % Pacific Express Co., San Antonio, Texas — Dear Sir: Kef erring to your letter of December 15th, I inclose you a copy of a letter written me by H. Martin, superintendent of the I. & G. N. Railroad, on October 22d.
“Yours very truly,
“[Signed] T. N. Edgell, Superintendent.”
“The Pacific Express Company.
“Superintendent’s Office, Texas Division.
“T. N. Edgell, Superintendent.
“Dallas, Texas, January 17, 1911.
“Mr. O. O. Edmundson, San Antonio, Texas— Dear Sir: This is to acknowledge receipt of your letter of January 14th, and, as I have advised you, you were relieved from the service of this company because it was reported that you carried a man in your car without authority, which is a violation of the rules of the railway as well as this company.
“Yours truly,
“[Signed] T. N. Edgell, Superintendent.”

When Superintendent Edgell, of the express company, received Martin’s letter, he communicated the same to Beatty, who was immediately in charge of such employós as appellee, and directed his discharge, which was forthwith carried out by Beatty.

It was alleged that the carrying of a passenger in a baggage car was a serious breach of discipline and a serious charge against the messenger’s character for honesty and fidelity to duty, it being equivalent to saying that he had permitted such passenger to ride there for pay, which the messenger retained, and that express companies and railway companies, as well as other large industrial concerns, operated under a system whereby a man was required to furnish a certificate as to his last employment before he would be given work with a new concern, and, if that report were bad, he could not obtain employment from any of the companies or industrial enterprises operating under said system,- and that all such concerns for which appellee was suited by training to work did operate under that system, which put employment for which he was suited beyond his reach, on account of the bad report which would be given him.

The appellant answered and interposed various exceptions and pleas, but we think we need only confine ourselves largely to the two controlling questions in the case, that is to say: (1) Whether the letter written by Martin was a privileged communication, and, if so, was there express malice shown; (2) Whether this cause of action comes within the terms of what is known as the I. & G. N. Bill (Rev. Stats. 1911, arts. 6624 and 6625). The portion of article 6624 applicable to this cause is, when a railway shall be sold, the purchaser shall take the same “charged with and subject to the payment of all subsisting liabilities and claims for death and personal injuries sustained in the operation of the railroad by the sold-out company and by any receiver thereof.” Article 6625, giving new railway corporations the right to buy and take over such sold-out railways, carries with it the same proviso as that above quoted.

Let us then consider first whether this communication is privileged; and in following this order of investigation we are not attempting to follow that set forth in the briefs. If this letter comes within the class of privileged communications, it would fall under that head called a qualified privilege, unless it was done with malice; that is, to “communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.” Newell on Slander and Libel, § 493. This letter was written by Martin, of the railroad company, to Edgell, who held a similar position with the express company, and not only one, but both, of them, were interested in Edmundson’s employment. There is no doubt in our minds that the communication was privileged.

While malice is an essential ingredient of libel, there are different ways of showing this element. It may be proven directly, or may be inferred from the character of the libelous document, or may be proven by circumstantial evidence. Indeed, direct positive proof 'is rarely obtainable. But, where the subject-matter of the libel is privileged, express malice must be shown before the libel is actionable.

In Behee v. Railway Co., 71 Tex. 428, 9 S. W. 449, Judge Collard said:

“Malice is a necessary ingredient ofÉ libel. When a defamatory and false publication is made by one person of another, malice will be imputed to the act; but, where the publication is privileged and is believed to be true, the prima facie ease of libel so made is deemed to have been fully met; and then to sustain the action malice must be shown to exist by other evidence as by the style or manner of the writing or by extraneous facts. These principles were clearly announced by Associate Justice Roberts in the well considered case of Holt v. Parsons, 23 Tex. 21 [76 Am. Dec. 49].”

Further oh, in the same case, it is said:

“Such questions of malice should be left to the jury. If a privileged communication, though false, is believed to be true by the publisher, and the language used to express the communication is not unnecessarily disparaging, and it is not shown by extraneous evidence to have been actuated by a malicious intent to injure, there can be no recovery; but if one whose duty or privilege it is to give information concerning the character of another defames his character or states facts not actionable per se, but which become actionable from the injurious consequences resulting therefrom, knowing the same to be false, the bad intent or motive necessary to sustain the action may be inferred. A master does not have the right to libel his servant simply because the relation of master and servant exists, or had existed, by making false and injurious publications concerning his character. The jury may infer bad motive from the fact that the publication was false and injurious.”

The last statement in the quotation, that the jury nmy infer bad motive from the fact that the publication was false and injurious, does not obtain where the communication is privileged; but there express malice must be shown. And, as we have said, of this the jury shall judge, and the evidence to support such a verdict may be circumstantial. The mere proving the falsity of the libelous statement, however, would not be sufficient to .sustain a finding of express malice. If a false statement is made with a reckless disregard of whether it be true or false, that would be sufficient evidence upon which a jury could find express malice.

Let us, then, see what the evidence is in this case as to the existence of malice, ■and in this connection it will be borne in mind that in ease of a privileged communication slight evidence of malice entitles the plaintiff to have his case submitted to the jury. 25 Cyc. 524; Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609.

The reason appellee was discharged was that a negro detective from St. Eouis claimed to have paid the porter $2 to ride on the bag,gage car from San Antonio to Palestine, which fact of payment the negro says he told Edmundson, and was permitted to ride. Apparently without any investigation whatever as to whether the negro’s statement was true or false, Martin wrote the letter to Edgell peremptorily ordering appellee’s discharge for the reason, as stated, that he had carried a passenger in his car. The only inference was that he not only was breaking the rules of the companies, and was therefore unfaithful to his trust, but was so carrying a passenger for pay — a charge of dishonesty — a charge which could mean nothing else, notwithstanding all the testimony that it was not a reflection on his honesty. When a man is called a thief, all the testimony in Christendom to the contrary would not show the man’s honesty was not brought in question. Edmundson says he' did not carry a passenger in his car. He knew Martin, and saw him every few days in Palestine; sometimes Martin would speak, and sometimes he would not. His attitude was cool and distant towards appellee. After the discharge appellee wrote Martin about it and received no answer. He then went to see Martin twice to get him to investigate the charge. And what was the result? He treated Edmundson cool, and said he could not do anything for him. He would not discuss it at all. This was the first time appel-lee went. Two weeks later appellee went back and begged Martin to investigate, and told him the charge was false.

“He just told me that that was all there was to it; he wouldn’t have anything more to do. I told him I was innocent, didn’t know anything about it, didn’t carry this party, that there was a mistake somewhere, and that I would like for him to investigate the charge. He said he was through with it, didn’t have any time to talk to me anything about it, and waved me out. He never at any time gave me an investigation. ⅜ * * He told me he would not touch the matter, would not investigate it, and waved me out.”

Beatty had told appellee that, if he would go and straighten the matter up with Martin, he would put him back on his run. This he tried to do, with the result above shown. He says he never did anything to incur Martin’s displeasure. Another man discharged about the same time and for a similar offense was put back to work.

So here we have a young man who had always enjoyed a good reputation, and who had worked himself up in Ms business from a salary of $45 per month to $90 per month, with a reasonable hope of further advancement, absolutely destroyed in his chosen avocation by a letter of Martin, based upon nothing more substantial than a detective’s report. His honesty is attacked, his reputation blasted and destroyed, and he is kicked out of service with this libelous record perpetuated against him to forever preclude — at least seriously hamper' him — from obtaining similar service; for it is shown that in these matters of public service corporations letters of service from the last' preceding employer are almost, if not entirely, a prerequisite to obtaining a new employment. And the wails of the damned are not more unavailing than were the demands of this young man to have his character vindicated at the hands of this man Martin, who waved him aside and closed the door of hope in his face. Was there a reckless disregard of whether this charge was true or false? Undoubtedly the jury was warranted in concluding that there was. Petty officials are sometimes prone to get such an exalted idea of their own importance that the character of those below them weighs as naught against those ideas; but it must ever be recalled that the master is responsible for the kind of men placed in authority and for their acts done in the scope of the authority delegated.

In Railway Company v. McArthur, 31 Tex. Civ. App. 205, 72 S. W. 76, Judge Key said:

“The evidence tending to show express malice may not be strong, but we cannot say that there was no testimony tending to establish that fact. The arbitrary action of the defendant’s agent, Le Baume, in refusing to answer the plaintiff’s letters, denying charges made against him, and explaining what he was doing, and the conduct of the agent in proceeding at once to make the publication complained of, tended to show gross indifference to the plaintiff’s rights, and the perpetration of a wanton, if not willful, wrong.”

So we come to the second inquiry as outlined above: Does the I. & G. N. Bill cover this case, or is damage to reputation such character of claim as comes within the term personal injury? If this is a personal injury, was it sustained in the operation of the railroad?

In Houston Printing Company v. Dement, 18 Tex. Civ. App. 30, 44 S. W. 558, in which case a writ of error was denied by the Supreme -Court, it is said:

“Under the appellant’s first assignment of error it is insisted that the action in this case died with the original plaintiff, and that trial court erred in not so holding, and that the act of May 4, 1895, entitled ‘An act to provide for the survival of causes of action for personal injuries, other than those resulting in death, and for the enforcement thereof,’ is, so far as it includes injuries to the health or to the reputation of the injured party, unconstitutional and void, in that the subject of injuries to the health or to the reputation of the injured party is not indicated by or expressed in the title or caption to the act. The question is presented with much force in appellant’s brief, but we are constrained to dissent from his proposition, and to hold that libel and slander are included in the term ‘personal injuries,’ and that therefore injuries to the reputation are indicated by the caption of the act of May 4, 1895. That injuries to the physical man are generally meant by the expression ‘personal injuries’ may be conceded, but it is nevertheless true that injuries to the reputation and to the health have ever been classed and treated by law writers as personal injuries. The absolute rights of each individual are the rights of personal security, the right of personal liberty, and the right of private property. Injuries which affect the personal security are injuries against the life, the limb, the body, the health, or the reputation of the individual.”

And we quote the following from Sanderson v. Hunt, 116 Ky. 435, 76 S. W. 179, 3 Ann. Cas. 168, a Kentucky case:

“In volume 2, p. 118, Bl. Comm. (Cooley), under the head of ‘Injuries Affecting Personal Security,’ he says:- ‘As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their body, their health, or their reputation.’ All these, as is each of them, are injuries to the person. The act of Congress must he understood as having used the words in the section quoted with reference to their common-law acceptation. Sutherland on Statutory Construction, 289. An injury to one’s person may be done in a number of ways. Por example, it may be done to some member of his body; it may be to his health; it may be to his sense of feeling; it may be to his state or peace of mind. Any injury done to him that wounds him in any of these parts is essentially a personal injury — that is, an injury to his person; an injury to that which constitutes a part of his person. The law may not allow a recovery for all of such injuries, but for such as it does allow'-a recovery for it may be classed generally as a recovery for a personal injury.”

In Words and Phrases, vol. 6, p. 5341, we find:

“A personal injury includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person, either of the plaintiff or another.”

Whether the term extends this far is not necessary for us to say. A person is composed of two elements, as we have always understood, viz., mind and matter, or material and immaterial things. As to which is the more important, we scarcely need discuss; for an injury to the body may heal and the body resume its normal condition, but an injury to character, to the vital moving force of a man — to the real man — may not be healed. The wound in the first instance is buried with the body and is separated again into the material elements composing it? but in the other it may survive as a curse to those who follow. Injury to character or good name is a personal injury.

And it will not do to say that this man was not engaged in operating the railroad. It was just as necessary that the express and baggage be carried as it was that a passenger be hauled. This messenger was performing a part of the service just as necessary to operate the road in its way, as was the engineer or the conductor. It was all a part of the service in which the railroad was engaged.

The judgment is affirmed.
      <fc=For other eases see same topic anil KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GLASSCOCK et al. v. SINKS.
    (No. 5651.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 5, 1916.)
    1. Ootjbts 170 — Limited Jurisdiction—
    Pleading — Suhticiency.
    A petition seeking recovery on notes aggregating $400, and foreclosure of a mortgage securing them on certain mules, is insufficient to show Jurisdiction of the county court, if it fails to allege the value of the mules.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. ©=>170.]
    2. Courts ©=3170 — Limited Jurisdiction—
    County Courts — Amount in Controversy.
    Where the evidence shows the subject-matter to exceed $1,000 in value, and therefore not within the jurisdiction of the county court, plaintiff could not in good faith amend so as to bring the action within jurisdiction of such court.
    [Ed. Note. — For other eases, see Courts, Cent. Dig. § 427; Dee. Dig. ©=3170.]
    3. Appeal and Error ©=>1166 — Dismissal—
    When Ordered.
    Although the evidence on the trial shows that the amount in controversy removed the case from the jurisdiction of the county court where brought, the case would not be dismissed, but remanded so that plaintiff might, if he could in good faith, amend to show jurisdiction, and, if not, dismiss.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4527-4530; Dec. Dig. ©=> 1166.]
    Appeal from Frio County Court; S. T. Dowe, Judge.
    Action by J. W. Sinks against Mrs. E. R. Glasscock and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    R. E. McKie, of San Marcos, for appellants. Kereheville & Brown, of Devine, for appellee.
   MOURSUND, J.

Appellee, as disclosed by his first amended original petition, sued appellants upon eight promissory notes for $50 each, executed by Mrs. E. R. Glasscock and payable to appellee. He alleged that the payment of said notes was secured by a chattel mortgage upon nine mules, and a copy of said mortgage was attached to the petition. Judgment was rendered in favor of plaintiff for his debt and for foreclosure of his chattel mortgage lien.

The value of the mules was not alleged, and the petition, therefore, fails to affirmatively allege facts showing that the court had jurisdiction of the cause of action. Marshall v. Stowers Furniture Co., 167 S. W. 230; Richardson v. Hethcock, 173 S. W. 1006. Our views on this matter are fully stated in the first-cited case.

According to the evidence, the value of the mules greatly exceeded $1,000, and if this be correct plaintiff could not in good faith amend so as to bring the case within the jurisdiction of the county court, but, nevertheless, we will not dismiss the ease, but will reverse the judgment and remand the cause in accordance with the practice heretofore existing in this court, and leave it to the plaintiff to dismiss if the value of the mules is as was testified to upon the trial below.
      ©n^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WHITSETT.
    (No. 1602.)

    (Court of Civil Appeals of Texas. Texarkana.
    April 6, 1916.
    Rehearing Denied April 13, 1916.)
    1. Trial ©=>260(1) — Instructions — Repetition.
    A requested special charge need not be given; its substance being embraced in the general charge and in another special requested charge given.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. ©=>260(1).]
    2. Negligence ©=>117 — Contributory Negligence-Necessity oe Pleading.
    Plaintiff’s contributory negligence in failing to call in a consulting physician must be pleaded to entitle defendant to have an instruction submitting the question.
    [Ed. Note. — For other cases see Negligence, Cent. Dig. §§ 195-197; Dec. Dig. ©=>117.]
    3. Negligence ©=>136(26) — Contributory Negligence — Evidence.
    Evidence merely that plaintiff disregarded the suggestion of her attending physician to call a consulting physician is insufficient to raise the issue of contributory negligence, in the absence of evidence that a different result would have followed had this been done.
    [Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 286, 333-335, 338, 339, 342-345, 353; Dec. Dig. ©=>136(26).]
    4. Appeal and Error ©=>1064(1) — Harmless Error — Instructions.
    Where there can be no question but that, if defendant’s omission was negligence, and brought on plaintiff’s condition, it was the direct a.nd responsible cause, and the important question is whether it was a cause thereof, any failure of an instruction to observe the distinctions between proximate and remote causes is unimportant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dee. Dig. ©=>1064(1); Trial, Cent. Dig. §§ 475, 525.]
    5. Negligence ©=>140 — Instructions—Proximate.
    In the instruction, “The ‘proximate cause’ of an injury * * * means an efficient cause, or that which in natural and' continuous sequence unbroken by any new or intervening cause produces the injury,” the words commencing with “or” are explanatory of what precedes, rather than a different definition of proximate cause.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 378-381; Dec. Dig. ©=>140.]
    6. Damages ©=>132(3) — Personal Injury — Excessive Verdict.
    Under evidence that, as a result of exposure to cold on defendant’s train, plaintiff’s facial nerves had become totally paralyzed; her mouth drawn to one side; she was unable to close her lips, so that in eating her food would sometimes escape; she was suffering from a mastoid abscess, to cure which would require a dangerous operation; her injuries were permanent; and she had suffered considerable pain — a verdict for $4,500 cannot be said to he excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 374; Dec. Dig. ©=>132(3).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by C. W. Whitsett against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed;

      Chas. C. Huff, of Dallas, and Dinsmore, McMahon & 'Dinsmore, of Greenville, for appellant. Yates, Sherrill & Starnes, of Green-ville, for appellee.

       Application for writ of error pending in Supreme Court.

   HODGES, J.

This appeal is from a judgment for the sum of $4,500 in favor of the appellee for damages resulting from personal injuries sustained by his wife while a passenger on one of the appellant’s trains. It is alleged that the ear in which the appel-lee’s wife was riding was insufficiently heated, and that in consequence she contracted a cold, which finally produced paralysis of the left side of her face, and other injuries mentioned.

The first error assigned complains of the refusal of the court to give a special charge which limited the jury to the consideration of the exposure to which the appel-lee’s wife was subjected while a passenger on the appellant’s train. In his general charge the court authorized a verdict for the plaintiff only in the event the injuries sustained resulted from the negligence of the railway company. In a special charge given at the request of the appellant the substance of this refused instruction was embraced. There was no occasion for its repetition.

The second and third assignments of error are based upon the failure of the court to submit the issue of contributory negligence resulting from the failure of the ap-pellee and his wife to call in additional medical assistance. It is contended that the attending physician suggested additional medical advice, but that his recommendations were disregarded. In disposing of these assignments it is sufficient to say that there was no pleading upon which such an instruction could be based, and for that reason alone the court was justified in failing to submit that issue in his general charge, and in refusing the special charge requested by the appellant. Lewis v. Texas & Pacific Ry. Co., 57 Tex. Civ. App. 585, 122 S. W. 605, and cases there cited. Furthermore, the testimony, we think, was wholly insufficient to raise that issue. There is no evidence that a different result would have followed had other medical attention been procured.

The court gave the following as a part of his general charge:

“The ‘proximate cause’ of an injury, as that term is herein used, means an efficient cause, or that which in natural and continuous sequence unbroken by any new or intervening cause produces the injury, and without which it would not have occurred. In order to constitute proximate cause of an injury the act or omission complained of must be of such a nature that a very careful, cautious, and prudent person might anticipate that some injury might result therefrom.”

The objection to this paragraph of the court’s charge is that it is not clear, and would probably be understood to mean that | “proximate cause” is either an efficient cause or a cause that in “natural and continuous sequence unbroken by any new or intervening cause” produced the injury. In other words, the objection is based upon the contention that the court submits two separate and distinct definitions of “proximate cause.” It may well be doubted if these stereotyped definitions of “proximate cause” furnish juries any aid in determining that issue. In the case before us the important inquiry was, not whether the failure of the appellant to heat the car was the proximate or the remote cause, but whether it, in fact, was a cause of the injury. If that failure was the result of negligence, and brought on the conditions from which the appellee’s wife suffered, there could be no question about its being the direct and responsible cause. There was no necessity for the jury to consider the refinements regarding the distinctions between proximate and remote causes. Moreover, we are inclined to the opinion that the second subdivision of the first sentence beginning after the disjunctive conjunction “or” was intended to be explanatory of that which preceded, rather than the giving of a different definition of “proximate cause.” The charge was not subject to the objections made.

Other assignments attack the sufficiency of the evidence to sustain_ the verdict of the jury. It is unnecessary to enter upon a discussion of the testimony in detail, but a careful examination has convinced us that these assignments are without merit.

It is also contended that the verdict of the jury, $4,500, is excessive. If the facts as testified to by the appellee’s wife and other witnesses are true, the verdict was a reasonable one. There was testimony tending to show that she had suffered considerable pain; that as a result of her exposure to cold the facial nerves had become totally paralyzed, her mouth drawn to one side, she was unable to close her lips over her teeth, and in eating her food would sometimes run out of her mouth. It was also shown that she was suffering from a mastoid abscess, to cure which would require a dangerous operation. The testimony tended further to show that her injuries were permanent.

The assignment is overruled, and the judgment of the district court is affirmed.
      <§5»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOUSTON CHRONICLE PUB. CO. v. MURRAY et al.
    (Court of Civil Appeals of Texas. Galveston.
    March 15, 1916.
    Rehearing Denied April 6, 1916.)
    Triad <S^194(6) — Instructions.
    In a servant’s action for injuries, there being a conflict in evidence as to the fact of employment, an instruction that the plaintiff was acting as the servant and in the employ of the defendant was improper, as on the weight of the evidence and an invasion of the province of the jury.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 451; Dec. Dig. '<§^>194(6).]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by Melba Palmer Murray and another against the Houston Chronicle Publishing Company and another. From a judgment for the plaintiffs and for the defendant Kyle Company, the named defendant appeals.
    Reversed and remanded.
    Kittrell & Kittrell, of Houston, for appellant. Hume & Hume, of Houston, for ap-pellees.
   McMEANS, J.

T. J. Murray ánd his wife, Melba Palmer Murray, brought this suit against the Houston Chronicle Publishing Company and the Kyle Company to recover damages for personal injuries sustained by Mrs. Murray while enacting a part as an actress in the production of certain scenes to be photographed for the purpose of securing a motion picture film. Plaintiffs alleged that at the time of Mrs. Murray’s injuries she was in the employment of the Houston Chronicle Publishing Company by virtue of a contract made by her with said Publishing Company through its manager, L. J. Van Laeys, and was then performing its service under the direction and control of said Van Laeys.

Defendant publishing company denied that Mrs. Murray was in its employment at the time she was injured, and denied that she had been employed by its manager, Van Laeys, and pleaded that the work of producing the motion picture films was being done by the Hotex Film Company, a partnership, under a contract with the publishing company, which, as an independent contractor, undertook to do the work and devised the methods and directed the execution of the same, and alleged that said Van Laeys had no control over the method, manner, agencies, or details thereof, and no control or direction of any person used as an actor or actress in connection with the making of the films; his only connection with said production being to conceive the plan or scheme and to exercise the supervision of the doing of the work to the extent of seeing that it was done according to contract. It also alleged that Mrs. Murray was employed and directed in her work by the Hotex Film Company.

The pleadings' of both parties are quite lengthy, and we have not undertaken to here set out more than the substance of such of the pleadings as is necessary to show that the issue of whether Mrs. Murray was the servant or employs of the publishing company was sharply drawn.

When the introduction of the evidence had been completed, the court instructed the jury selected to try the case to return a verdict for the. Kyle Company, and this being done, a judgment in favor of that defendant was-duly entered, and has not been appealed from. The court then charged the jury in. part as follows:

“Now you are instructed that the uncontro-verted evidence in this case shows that the said-Melba Palmer Murray on the 27th day of June, 1914, was the servant and in the employ of the-Houston Chronicle Publishing Company in connection with the production of a moving picture film to be known as ‘Barbara, the Mysterious-Maid.’ The defendant Houston Chronicle Publishing Company, as the master of said Melba Palmer Murray, owed her the duty to furnish her with a reasonably safe place in which to do-said work, and to warn and instruct her of any danger or risk incident to said employment, and to exercise ordinary care not to unnecessarily expose her to dangers or risks incident thereto.”

The court further instructed the jury that plaintiffs were -entitled to recover of defendant for the injuries alleged, which the jury might find from the evidence Mrs. Murray sustained on the occasion in question. The jury returned a verdict for plaintiffs for $4,-GSO, and a judgment was thereon accordingly -entered in their favor for said sum, from, which the defendant has appealed.

By an appropriate assignment of error appellant complains of the action of the court in giving the charge above set out, its contention being, in effect, 'that the charge is upon the weight of the evidence and an invasion of the province of the jury.

On June 13,1914, the Hotex Film Company, a partnership composed of John W. Boggs- and King W. Vidor, entered into the following written contract with the Houston Chronicle Publishing Company, viz.:

“Whereas, on this 13tk day of June, 1914, the-hereinafter parties, the Hotex Film Manufacturing Company, hereinafter styled party of the first part, and the Houston Chronicle Publishing Company, hereinafter styled party of the second part, enter into the following agreement, to wit:
“The party of the first part agrees to manufacture and deliver to the party of the second-part a motion picture film to be known as ‘The Chronicle’s News Film’ (said film to be approximately five hundred [500] feet in length, including titles and scenes), once a week for a period of four consecutive weeks.
“The party of the second part agrees to pay to the party of the first part for said film at the rate of seventeen (17c.) cents per foot, or a weekly consideration of eighty-five ($85.00) dollars, together with 15 per cent, of the net profits derived from the exhibition of said film.
“Party of the second part agrees to furnish the party of the first part with sufficient subjects for making said film, and to assist in any way that would benefit the picture.”

On the issue of whether Mrs. Murray at the time she was injured was in the employment and a servant of the appellant the following testimony was introduced, and is set, out in-appellant’s brief:

Mrs. Murray testified:

“Miss Lowery told me that Mr. Boggs rang her up and asked if I was in town; that Mr. Van Laeys — the Chronicle — was going to make a picture, and he (Boggs) knew I wanted to get in that picture if I could, and he (Boggs) would recommend me to Van Laeys as an actress. * ⅜ * Wei^ ⅛ that way the first connection between me and the picture business was through. Mr. Boggs. I have known Mr. Boggs six or seven years. I had never seen Mr. Van Laeys face to face before I went to the Chronicle office, June 25th. Mr. Van Laeys rang me up •and asked me if I would take the part of Barbara in the ‘Mysterious Maid.’ I did not know that Mr. Boggs and Mr. Vidor had made a contract with the Chronicle to make the picture •and furnish the actress — procure her. I took instructions from Mr. Van Laeys, the man who •engaged me. Mr. Boggs never employed me. Mr. Boggs did not engage me. Mr. Van Laeys ■engaged me. He (Van Laeys) said: T have engaged Miss Palmer to play Barbara.’ Boggs •did come up with his camera in the car and picked out the places for the scene; from place to place they would make a scene. When I reached Lovett boulevard Boggs and Vidor were the only ones in the car with me. Mr. Van Laeys alone engaged me. Mr. Van Laeys alone had the right to discharge me. He had the legal right to control me, and nobody else had. Mr. Van Laeys told me what to do. Mr. Boggs .and Mr. Vidor did ride with me in the car to town. Mr. Vidor did not direct the vehicle how to go. Mr. Boggs did direct the car to stop at the depot where that picture was taken. I had seen moving pictures before this.”

L. J. Van Laeys testified:

“I did not employ Miss Melba Palmer in' any •capacity; neither did I contract to pay her any sum or sums for any service. The Hotex Film Company employed Miss Palmer. She was employed by Mr. Vidor and Mr. Boggs, managers •of the Hotex Film Company. A picture was to be taken hy Boggs and Vidor under a contract with the Houston Chronicle Publishing Company. The Hotex Film Company engaged the car and driver with the distinct understanding that the Houston Chronicle Publishing Company should not be at any expense for the services of the Kyle Company. * ⅜ * It is not a fact that I engaged the plaintiff to represent the title role of Barbara. It is not a fact that I agreed to pay plaintiff for her services, but I •did approve an agreement between her and the Hotex Film Company for payment of $1.50 a performance, an item of expense covered in their vouchor checks. It is not a fact that I had, prior to the time the taxicab was driven over said railroad crossing, instructed said driver of said taxicab to go over the crossing at a slow •rate of speed. It is not a fact that I stated to Stokes that I had procured the taxicab and driv-er from the Kyle Company.”

From the foregoing it will be seen that Mrs. Murray testifies positively that she was employed by Mr. Van Laeys, acting for his principal, the Houston Chronicle Publishing Company. It is evident therefore that, if any such contract of employment was made, it was through Mr. Van Laeys, and not through some other officer or agent of the appellant corporation. If her testimony stood alone, there would have been some plausible grounds for the court’s charge to the effect that the uncontroverted evidence showed that Mrs. Murray was the servant and in the employment of the appellant. But Mr. Van Laeys testified with equal positiveness that he did not employ Mrs. Murray, but that she was employed by the Hotex Film Company. His testimony was amply sufficient to controvert the testimony of Mrs. Murray, and to require the submission of the issue to the jury. The charge was on the weight of the evidence, and directly violative of article 1971 of the Revised Statutes. Such charges have been too frequently condemned by our appellate courts to require citation of the cases which so condemn them. Where there is a disputed fact issue, the court is required to submit such issue to the jury. It is only where the evidence is of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it that the court is authorized to take the question away from the jury. Lee v. Railway, 89 Tex. 588, 36 S. W. 63.

For the error in giving the charge the judgment must be reversed. For this reason it would not be profitable to discuss the other assignments of error presented by appellant. Upon another trial all disputed questions of fact, in so far as raised by the pleadings of the parties, should be submitted for the determination of the jury, both those relied upon hy plaintiff to establish the liability of defendant as well as the affirmative defenses relied upon by defendant to defeat a recovery.

For the error indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHEASANTS, C. J.

text:
    HARRIS et al. v. HAMILTON et al.

    (No. 6975.)
    (Court of Civil Appeals of Texas. Galveston.
    March 4, 1916.
    Rehearings Denied April 8, 1916.)
    1. Vendor and Purchaser @=245 — Bona Fide Purchaser — Notice — Question fob Jury.
    Whether a grantee who knew that the consideration mentioned in the deed to his grantor had not been paid, and that the deed had not been recorded, was chargeable with notice that the deed was intended as a mortgage, held for the jury under the evidence.
    [Ed. Note. — For other cases," see Vendor and Purchaser, Cent. Dig. § 612; Dec. Dig. @= 245.]
    2. Vendor and Purchaser @=244 — Notice to Grantee — Sufficiency of Evidence.
    Where a grantee took land with knowledge-that the cash consideration mentioned in the deed under which his grantor held had not been paid, and that the deed had not been recorded, evidence held sufficient to sustain a verdict that he took with the notice that the deed to his grantor was intended as a mortgage.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. @=3244.]
    3. Appeal and Error @=84.3(2) — Review-Matters Not Necessary to Decision.
    In view of the finding of the jury that a defendant was chargeable with notice of the true character of a deed under which his grantor held title, the admission of testimony tending to show that he did not have notice is immaterial, and will not 'be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. @=843(2).]
    4. Appeal and Error @=843(2) — Review — Matters Not Necessary to Decision.
    In view of the finding of the jury that the defendant was chargeable with notice of the true character of a deed under which his grantor held title, the refusal of a special instruction on this issue is immaterial, and will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. <⅜=>843(2).] 5. Subrogation ⅞=>14(3) — Purchasers or
    Incumbered Property.
    Where the grantee of land who took with notice that the deed to his grantor was intended as a mortgage, paid one of the secured notes given by his grantor in the hands of an innocent holder, he was entitled to be subrogated to all the rights of the innocent holder.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. § 38; Dee. Dig. <®=M4(3).]
    Appeal from District Court, Sabine County ; A. E. Davis, Judge.
    Suit by Mrs. Ida Harris against A. D. Hamilton and others, in which II. B. Short and others were impleaded by the original defendants. From the judgment, the plaintiff and interveners appeal.
    Affirmed.
    W. F. Goodrich, J. W. Minton, and E. P. Padgett, all of Hemphill, and D. M. Short &■ Sons, of Center, for appellants. Carter & Walker, of Center, and Hamilton & Hamilton, of Hemphill, for appellee Beaver A. Hamilton. W. R. Cousins, of Hemphill, for appellee King.

       Application for writ of error pending in Supreme Court.

   PHEASANTS, C. J.

This suit was brought by Mrs. Ida Harris against A. D. Hamilton, Beaver A. Hamilton, and W. W. King for the purpose of having a certain instrument executed by plaintiff and others in the form of a deed declared to be a mortgage, and for recovery of the title and possession of land described in the petition and conveyed by said instrument. Plaintiff further sought the cancellation of two deeds executed by defendant King conveying the property in controversy. In the alternative plaintiff prayed judgment for damages against the defendant W. W. King, the grantee in one of said instruments, in the sum of $2,000, on the ground that he had fraudulently appropriated to his own use the land conveyed by said instrument and had conveyed same to an innocent purchaser. The defendants answered by general and special exceptions, general denial, and special pleas, the nature of which, as far as may be necessary for the purpose of understanding the questions presented and decided on this appeal, will be hereinafter stated. H. B. Short, Mattie W. Short, Willie Wetherred, Maggie B. Wetherred, and James P. Wetherred, who, with appellant Ida W. Harris, had executed the deed sought to be declared a mortgage, but which in form was a deed of general warranty, were impleaded on their warranty by the original defendants. These war-rantor defendants adopted as their own the allegations of plaintiff’s petition, and offered to pay each of the original defendants all of the money paid by them for the land if they would reconvey same to them and plaintiff.

Succinctly stated as may be, the facts disclosed by the record and set 'out in the pleadings are as follows:

The plaintiff and the defendants Mattie W. Short, Maggie B. Wetherred, Willie W. Wetherred, and James P. Wetherred are the children of W. W. Wetherred and Eliza Wetherred, both deceased. The property in controversy, which is situated in or near the town of Hemphill, in Sabine county, was the homestead 'of said W. W- and Eliza Wether-red, both of whom died prior to 1898. After the death of her father and mother plaintiff, with the consent of her brother and sisters, in 1901 established her homestead, she having previously intermarried with H. G. Harris, upon a tract of 6.4 acres, which was a part of the homestead of her deceased parents. The remainder of the old homestead was occupied for a number of years by plaintiff’s unmarried sisters. Some time prior to May 15, 1911, H. G. Harris abandoned plaintiff, and she thereafter went to live with her brother, James P. Wetherred, who resided in the town of Bronson, in Sabinp county. Pri- or to said date last mentioned plaintiff's sisters had also left the old homestead, but it was occupied by tenants. Defendant Mrs. Mattie W. Short, who had married prior to the death of her parents, claimed no interest in the homestead property, but had never executed a deed conveying her apparent interest. This was the status of the title and possession of the property on May 15, 1911, on which date all of before-named children of W. W. and Eliza Wetherred, together with defendant H. B. Short, joined in a deed of general warranty conveying all said property to defendant King, except one block in the town of Hemphill, which had been previously conveyed, and is not in controversy in this suit. This deed recites a consideration of $4,000, $1,000 cash, and two n'otes for $1,500 each, payable respectively in one and two years from date, to'James P. Wetherred or order, with interest at the rate of 8 per cent, per annum. The undisputed evidence shows that this deed was executed for the purpose of enabling defendant James P. Wetherred to obtain money on said notes with which to engage in business at the town of Crosby, in Liberty county. The $1,000 was not paid, and it was never contemplated that it or the notes should ever be paid, by the defendant King. He had nothing to do with procuring the execution of the deed, and consented to take the title to the land and execute the notes for the sole purpose of assisting his friend, James P. Wetherred, to procure money on the property. This fact was known to all of the parties to the deed. There seems to have been an understanding between the parties that James P. Wetherred would only negotiate one of these notes. This deed was not put on record until July 9, 1912, and the possession of the property remained the same; the tenants continuing to pay rent to the Misses Weth-erred. On March 6,1912, King sold the property, except the 6.4 acres which had been theretofore set apart to plaintiff, Mrs. Ida Harris, to defendant A. D. Hamilton. The consideration for this sale was $2,500, $500 cash, a note for $500 executed by Hamilton, and the assumption by Hamilton of the first of the $1,500 notes before mentioned. The evidence sustains the finding that this sale was made with the knowledge and consent of the Wetherred children. The note for $500 and the $500 in cash received by King from Hamilton was sent by him to James P. Weth-erred. The $500 in cash was sent by James P. Wetherred to his sister, Maggie. It was understood between defendant King and James P. Wletherred that the portion of the property that had been set aside to Mrs. Ida Harris would be held responsible for the second of the $1,500 notes, and that this note would be canceled'by James P. Weth-erred, and Mrs. Harris’ land reeonveyed to her. When King sent the $500 in cash and the $500 received by him from A. D. Hamilton to James P. Wetherred, he also sent him a deed by which King conveyed to Mrs. Harris her portion of the property, and requested him, upon the cancellation of the outstanding $1,500 note, to deliver said deed to Mrs. Harris. This deed recited that it was executed in consideration of the surrender of the $1,500 note. Both of these $1,500 notes were sold by James P. Wetherred before their maturity to purchasers who obtained them in due course of trade without any notice of the circumstances and conditions attending their execution. Each of these notes recited that it was given in part payment of the purchase money of the land described in the deed from the Wetherred heirs to King, before mentioned, and that a vendor’s lien was retained on said land to secure the payment of the notes. The first of these notes was paid off by A. D. Hamilton after his purchase from King. The second note, which had been sold by James P. Wetherred to Wm. D. Cleveland & Sons, was due and unpaid on June 9, 1913, and was held for collection by a bank in Hemphill.

The deed from King to Mrs. Harris, before mentioned, had not been delivered to her by James P. Wetherred, and King, being unable to induce James P. Wetherred to protect him against the payment of this out-I standing note, on the date last mentioned conveyed the 6.4 acres of land to Beaver A. Hamilton in consideration of' the sum of $1,-720, the amount then due upon the note held Iby Cleveland & Sons. The consideration related in this deed was paid at the time the peed was executed. The amount was paid by 1⅛. D. Hamilton, but .was paid for Beaver A. lHamilton, and the latter gave his note to the former for said sum. This money was used discharging the Cleveland note.

The defendant King had no communication with any of the Wetherred heirs other than James P. Wetherred in regard to any of his transactions concerning this land, but believed that James P. Wetherred was acting for all of the heirs in all of the agreements between him and said defendant concerning the land in controversy.

The cause was submitted to a jury in the court below upon special issues. The jury found that A. D. Hamilton had no notice at the time he purchased from defendant King that the deed to King from the Wetherred heirs was intended as a mortgage, and that $2,500, the amount paid by said Hamilton, was the value of the property at the time he purchased. They further found that Beaver A. Hamilton did not know at the time he purchased that the deed to King was a mortgage, but that he had knowledge of facts sufficient to put a reasonably prudent man upon inquiry which, if pursued with reasonable diligence, would have led to the discovery that said deed was intended as a mortgage. They also found that the value of the property purchased by Beaver A. Hamilton at the time of said purchase was $2,000.

Upon these and other findings of the jury, .which it is unnecessary to set out, the court rendered judgment in favor of defendant A. D. Hamilton against the plaintiff and the other Wetherred heirs, hereinbefore named, for the title and possession of the land purchased by him from King. Judgment was also rendered in favor of plaintiff against defendants A. D. Hamilton, Beaver Hamilton, and W. W. King for the title and possession of the land claimed by her, subject, however, to a vendor’s lien in favor of Beaver A. Hamilton to secure the payment of the amount due upon the Cleveland note, less the sum of $180, which the court found to be the reasonable rental value of the property for the time it had been in the possession of said defendant.

It was further adjudged and decreed that defendant Beaver A. Hamilton be subrogated to the rights of Cleveland & Sons, and that the vendor’s lien given to secure the payment of said $1,500 note be foreclosed, and an order of sale issue in favor of said Beaver A. Hamilton directing the sale of said land in payment of the amount due upon said note, less the credit of $180 above mentioned. It was further adjudged that plaintiff take nothing on her claim for damages against the defendant King, and that James P. Weth-erred, Maggie B. Wetherred, Willie W. Wetherred, H. B. Short, and Mattie Short take nothing by their plea in intervention.

Erom this judgment the plaintiffs, Mrs. Harris and the other Wetherred heirs above named, who are designated in the judgment of the trial court and the briefs filed herein, and will be hereinafter designated, as inter-veners, have appealed.

We shall not set out in this opinion each of the 17 assignments of error and the numerous propositions submitted thereunder in tie briefs filed by appellants, whieb contain more than 100 pages of printed matter. To discnss these assignments and propositions separately would serve no useful purpose and would extend this opinion to an unreasonable and unnecessary length. The writer, speaking with the approval of this court, has heretofore (Christensen v. Christiansen, 155 S. W. 995) expressed condemnation of the useless and unnecessary length of many of the briefs filed in this court. So far from retracting, we would emphasize what was said in the opinion above cited in regard to the unnecessary length of briefs, but .we must admit that our appellate courts have all been more or less guilty of incumbering the record and burdening the profession with opinions of unnecessary length. The writer is fully convinced that our appellate courts often write more than is necessary or useful, and that the courts should, as far as is permissible under the statute, curtail the number and length of their written opinions.

The first two assignments of error presented in the briefs of appellants complain of the ruling of the trial court in permitting each of the defendants A. D. and Beaver Hamilton to testify that at the time he purchased the land in controversy he had no notice of the fact that the deed under which their vendor King held title was intended as a mortgage.

The proposition under the first assignment, which complains of the ruling of the court in permitting the defendant A. D. Hamilton to testify as above stated, is as follows:

“One who purchases land apparently held only by an equitable title, knowing that none of the purchase money has been paid, and that instrument by which his vendor claims is unrecorded, with the possession of the property remaining still with the original grantors, must look to the title papers under which he 'buys, and being charged with all the facts appearing upon their face, and the knowledge of which anything there appearing will conduct him, cannot claim to be an innocent purchaser of such property, in consequence of which to admit testimony under such circumstances tending to show that he was without such knowledge constitutes material error.”

While the evidence shows that A. D. Hamilton knew before he purchased the land from King that the $1,000 cash consideration recited in the deed to King had not been paid, and that the deed to King had not been recorded, these facts would not, as a matter of law, charge him with notice of the fact that the deed to King was intended as a mortgage, nor put him upon inquiry as to the true character of said conveyance. We think the question of whether A. D. Hamilton was chargeable with notice of the true character of the deed under which King claimed title was properly submitted to the jury, and that the verdict of the jury upon this issue is sustained by the evidence.

In view of the finding of the jury that the defendant Beaver A. Hamilton was chargeable with notice of the true character of the deed under wljich King held title, the question presented by the second assignment of error is immaterial.

The third and fourth assignments of error, which complain of the charge of the trial court, as interpreted by the proposition thereunder, only raise the question of whether the defendant A. D. Hamilton should, as a matter of law, upon the facts before stated, be charged with notice of the character of the deed under which King held title. In passing upon the first assignment of error we have answered this question in the negative.

The fifth, sixth, and seventh assignments of error are without merit, and are overruled without discussion.

The eighth assignment, which complains of the refusal of the court to give a special instruction requested by appellants upon the is.sue of whether the defendant Beaver A. Hamilton was chargeable with notice of the character of King’s title, presents a question wholly immaterial in view of the finding of the jury that said defendant was chargeable with such notice.

None of the remaining assignments of error point out any error that would authorize a reversal of the judgment.

We think the court properly held that Beaver A. Hamilton was entitled to be subro-gated to the rights of Cleveland & Sons to subject plaintiff’s property to the payment of the $1,500 note. Cleveland & Sons, having purchased the note before maturity, without any notice of any defects which would prevent the enforcement of the lien, were clearly entitled to have the land sold for the payment of the note. The money paid by Beaver A. Hamilton for the land having gone to the discharge of this note, he should-be subrogated to all the rights of the innocent holder of the note.

The judgment of the court in favor of the defendant King is sustained by all of the evidence. There is nothing in the record that raises the issue of fraud or bad faith on his-part.

All of the assignments of error have been-considered, and none of them, in our opinion, should be sustained.

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

Affirmed.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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