author: BROOKE, J.

text:
    MATTHEWS et al. v. KIRKLAND et al.

    (No. 88.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 30, 1916.
    Rehearing Denied April 26, 1916.)
    1. Appeal and Eeeoe &wkey;>999(l) — Review-Questions op Fact.
    The verdict of a jury as to facts is binding upon the court on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3912-3915, 3917-3921; Dec. Dig. &wkey;s999(l).]
    2. Paeent and Child &wkey;2(3) — Custody op Child — Best Inteeest.
    In suit by aunt and uncle of minor children against their father and stepmother for the custody of the children, a verdict that defendants were not and plaintiffs were proper persons to have the custody, and that the best interests of the children were subserved by being in plaintiffs’ custody, warrants a decree for plaintiffs.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 16-24; Dec. Dig. &wkey;2(3).]
    3. Appeal and Eeeoe <&wkey;>1050(l) — Habmless Eeeoe.
    Where, if the admission of testimony was error, the testimony was not of such character as probably to influence the result, the admission of the testimony is not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. <S=^>1050(1).]
    Error from District Court, Tyler County; A. E. Davis, Judge.
    Suit by Alta Kirkland and another against George O. Matthews and another. From a judgment for plaintiffs, defendants bring error.
    Affirmed.
    Powell & Huffman, of Jasper, and R. A. Shivers, of Woodville, for plaintiffs in error. Thomas & Wheat, of Woodville, for defendants in error.

       Application for writ of error pending in Supreme Court.

   BROOKE, J.

This is the third appeal of this case. The former appeals are reported, to wit: Kirkland v. Matthews, 162 S. W. 375; Kirkland v. Matthews, 174 S. W. 830.

This is a suit brought by the appellees, Alta Kirkland and another for the custody of four minor children, namely, George Cade Matthews, Miargaret Matthews, Claud P. Matthews, and Mary Julia Matthews, George C. Matthews being the father of said children, and Minnie Matthews, wife of George C. Matthews, being the stepmother of said children, the appellees being the aunt and uncle of said children.

Plaintiffs went to trial on their second amended original petition, alleging that on or about the 27th day of May, 1907, in Tyler county, Tex., Mrs. Margaret S. Matthews, who was a sister to the plaintiff Mrs. Alta Kirkland, and wife of the defendant George C. Matthews, departed this life, leaving the four minor children, the eldest being now a boy of 13, and the youngest being a girl aged 7; that the said Mrs. Margaret S. Matthews at and immediately before her death requested plaintiffs to adopt and take care of and control of said children; that after her death the defendant George O. Matthews acquiesced therein and gave to the plaintiffs the care and control of said children; and that the plaintiffs, in pursuance of said request, consented thereto, and carried said children to their home, where they have ever since remained. They further allege that they have no other children in their home, and since the said children have been members of their home they have become attached to them as if they were their own, and love them with a parental love, and have during all the time they have had charge and control of said children properly maintained and supported them, using all of their best energies to promote their health, comfort, happiness, and education, and that they are, in fact, able and willing to so continue said care and custody, and in every way qualified and the proper persons to have the custody of said children; that as the foster parents of said children, by7 reason of the long, continuous association with them, the said children have formed a lasting affection for the plaintiffs, and that the sundering of the ties existing between plaintiffs and the children would greatly mar the happiness of the children, and would not be for their best interest; that the father of said children voluntarily relinquished the care and custody of said children to plaintiffs for six years, in fact, all during the very infancy of the youngest, and when they were all small, and during the period of their lives when they were the most troublesome, and that now, when the children have grown up to a useful age, the defendant for the first time seelcs to regain their possession, and to sever the ties of love and affection that exist .between them and the plaintiffs, which ties of love and affection the defendant himself brought about by his own acts and by the gift of said children to the plaintiffs; that it is the desire of said children to remain with the plaintiffs, and that they lived with' and considered the plaintiffs as their mother and father, and that the relation between them is very close and affectionate, and that the said children now desire and request and are pleading that the plaintiffs retain their custody; that the defendant George O. Matthews is a day-laborer, and that his work ■and duties in connection therewith require him to remain away from home during the daytime, and oftentimes after night, at which times the cáre and custody of said children are left to the defendant Mrs. Minnie Matthews, the stepmother, who is charged with being a practical stranger to the children, and that during said times they are neglected, and that said George O. Matthews is in no position to perform the duties that, in a large part, at the ages of said children necessarily belong to women of respective families; that the defendant, having been away from the children for so many years, never having the care or performing his parental duties toward them while they were young, will not have the tender feelings toward them, nor they for him, as have the plaintiffs for the children, and the children for the plaintiffs; that said George 0. Matthews has children of his own born during his second marriage; and that the stepmother of the minor children herein will not devote her time and attention to them, since she has children of her own to care for. The further charge is made that the mother of said Mrs. Minnie Matthews, and an inmate of her home, is afflicted with tuberculosis, her health is impaired, and the health of the children would, perhaps, become impaired if they were permitted to remain in said home.

Defendants filed their first amended original answer, alleging that it would be to the best interest of the children to be given to defendants, that they love said children as only a father and mother could, that they were well prepared to care for and educate the children, and that it was the desire of Mrs. Minnie Matthews, stepmother of said children, that defendants have the care and custody of said children, and denied all material allegations in plaintiffs’ petition.

The court submitted the case on special issues as follows:

“Question No. 1: Are George O. Matthews and his wife, Minnie Matthews, fit and proper persons to have, the care and custody of the four children? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered “No.”

“Question No. 2: Are Alta Kirkland and her husband, Ed Kirkland, fit and proper persons to have the care and custody of the four children? You will answer this question '‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered “Yes.”

“Question No. 3: Did George 0. Matthews give Alta Kirkland and husband, Ed Kirkland, his four children, with the understanding and agreement that he was giving up his right to the custody and control of said children, and relinquishing all right to the custody and control of his children, and placing the custody and control of said children in the hands of Alta Kirkland and her husband, Ed Kirkland? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered “Yes.”

“Question No. 4: Will the best interests of the children be subserved by placing their care and custody in the hands of George 0. Matthews and wife, Minnie Matthews, or in the bands of Ed Kirkland and his wife, Alta Kirkland? If you find the fact to be that the best interests of the children will be subserved by placing them in the hands of George 0. Matthews and his wife, Minnie Matthews, then you will answer this question with the word ‘Matthews.’ If you find the fact to be that the best interests of the children will be subserved by placing them in the hands of Ed Kirkland and his wife, Alta Kirkland, then you will answer this question with the word ‘Kirkland.’ But, if you find the fact to be that the interests of the children will be equally subserved by placing the children in the hands of either George 0. Matthews and his wife, Minnie Matthews, or Ed Kirkland and his wife, Alta Kirkland, then you will answer this question with the word ‘Equally.’ ”

To this question the jury answered “Kirkland.”

“Question No. 5: Is the home of George O. Matthews and his wife, Minnie Matthews, a fit and proper home for the children? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered “No.”

“Question No. 6: Was the understanding with George 0. Matthews and Ed Kirkland and his wife, Alta Kirkland, at the time the children went to Kirbyville, that the children were going to their father’s house to make tlifiir home? You will answer this question ‘Yes’ or ‘No,’ as you may determine the fact to be.”

To this question the jury answered “No.”

“Question No. 7: Who is the better able financially to raise the children, George 0. Matthews or Ed Kirkland? You will answer this question with the word ‘Matthews’ or the word ‘Kirkland,’ but, if you find that one is just about as able financially as the other to raise the children, then you will answer this question with the words ‘About the same.’ ”

To this question the jury answered “Kirkland.”

Judgment was rendered by the court upon the findings of the jury, giving the custody of said children to Alta Kirkland and Ed Kirkland. Motion for new trial was filed, and first amended motion, which were overruled. Appellants filed their appeal bond, and the cause is properly before this court for review.

Notwithstanding the fact that objection is made to the consideration of appellants’ brief, because not having been filed with the clerk of the district court, and being filed in this court too late, and that objection is made to the consideration also of appellants’ assignments, we will consider the brief and assignments, although it must be confessed they are subject in many ways to the criticism directed against them.

By their first assignment of error, appellants challenge the verdict of the jury as being contrary to the evidence, in this: That there is no evidence to show that George' O. Matthews and his wife are not moral, upright people, suitable persons to have the custody and care of the children of George C. Matthews, and the proposition is submitted that George 0. Matthews being the father of the said minor children, he is entitled to the care and custody of his children, unless it is shown that he is unfit morally to have the care and custody of said children.

Appellants seem impressed with the idea that the courts of our state have held that it is incumbent upon the person or persons seeking to take the care and custody of minor children from their parents to show that the said parent or parents are unfit morally, or otherwise, to raise said children. In order that we may have a clear understanding of the holdings of the courts on this proposition, it would, perhaps, be well to briefly review the authorities.

In the case of Legate v. Legate, which was decided by our Supreme Court, and reported in 87 Tex. 248, 28 S. W. 281, the court says:

“The law recognizes the parent as the natural guardian of, and entitled to the custody of, his minor child, so long as he discharges the obligation imposed upon him by social and civil law of protecting and maintaining his offspring. It does not, however, recognize in him any property interest in his child, but merely accords to him the benefits resulting from the child’s services during minority, and such probable benefits as may result to him thereafter, in return for the tender care, the anxious solicitude and the physical, mental, and moral training bestowed by the parent, as well as the pecuniary and social benefits derived by the child from the parent. The state, as the protector and promoter of the peace and prosperity of organized society, is interested in the proper maintenance and education of the child, to the end that it may become a useful instead of a vicious citizen; and while, as a general rule, it recognizes the fact that the interest of the child and of society is best promoted by leaving its education and maintenance during minority to the promptings of paternal affection, untrammeled by the surveillance of government, still it has the right, in proper cases, to deprive the parent of the custody of his child, when demanded by the interest of the child and society. The one most vitally interested, however, in its custody during the formative period of its character is the one whose present and future happiness and tendencies towards good or evil will be most affected by its early environments and its physical, mental, and moral 'training — the child itself. The right of the parent or the state to surround the child with proper influences is of a governmental nature, while the right of the child to be surrounded by such influences as will best promote its physical, mental, and mor'al development is an inherent right, of which, when once acquired, it cannot be lawfully deprived. Ordinarily the law presumes that the best interests of the child will be subserved by allowing it to remain in the custody of the parents, no matter how poor and humble they may be, though wealth and worldly advancement may be offered in the home of another. Where, however, a parent, by writing or otherwise [italics ours], has voluntarily transferred and delivered his minor child into the custody and * * * control of another, as in the case at bar, and then seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily brought about, and the court will not grant the relief unless, upon hearing of all the facts, it is of opinion that the best interests of the child would be promoted thereby. It is sometimes said that such a voluntary transfer is ‘void,’ or that it is ‘contrary to public policy’; but the cases using such language show that it is not used in an absolute sense, but in the sense that such transfer-ís no impediment to the action of the court in determining what is best for the interest of the child. The law does not prohibit such a transfer, ‘ but, on the contrary, allows the child to reap the benefit thereof when it is to its interest so to do. The attempted transfer is not a contract, and cannot be enforced as such, because neither the child nor its custody was a subject-matter of contract. The fact that in pursuance of this attempted contract the parents delivered the child to appellees, and appellee received the same for a lawful purpose, new domestic relations thereby being formed for the child, renders the possession by appellee of the child prima facie lawful. The parents, on the one hand, offer to take back their child to the family circle, from whence they voluntarily allowed it to be taken, nearly two years since, at the tender age of three months; and, on the other hand, its foster parents insist upon its remaining with all the privileges of an adopted child, in the home where it has been tenderly and lovingly cared for through the critical period of infancy. Two homes are thus .offered the child, who is in no wise responsible for this unfortunate controversy, and has not sufficient discretion to select. [Italics ours.] We hold, as a matter of law, that it is entitled to the benefit of that home and environments which will probably best promote the interest of the infant. The question as to whose custody will be most beneficial to-the infant is one of fact, of which this court has no jurisdiction, hut tvhich is to he determined in the first instance hy the district court, upon hearing all the evidence tending to shed any light upon these two homes, and the people inhabiting them, including their entire connection with, affection for and present and future ability to care and provide for this little girl, in order that the court may be enabled to determine, upon the whole case, the * * * question of the fact above stated. [Italics above ours.]”

The jury in the instant case has passed upon this question of fact, and hy their answer have said that George C. Matthews and his wife, Minnie Matthews, are not fit and proper persons to have the care and custody of the minor children, and that Alta Kirkland and her husband, Ed. Kirkland, are fit .and proper persons to have the said care and custody. They have further passed on the question, and by their answers have said that George 0. Matthews did relinquish to Alta Kirkland and her husband the four minors, with the understanding that he was giving up his rights to the custody of said children many years ago, and they have said that the best interests of the children in this ease will be subserved by placing their care and custody in the hands of Alta Kirlfland and Ed Kirkland, and,' among other things, they have answered that the said Kirkland and his wife are better able financially to raise the said children.

In the case of Ball v. Smith, reported in 166 S. W. 576, the court goes into this question at length:

“By natural law the custody of the child is given to the parent, for the reason that it is presumed that out of this relationship flow such love and affection for the child as would promote its best interests; but this is not an inalienable or paramount right. In the event of a failure on the part of the parent from any cause to perform this sacred trust, the state has the right to interfere and take from his custody the child, to the end that it may be properly reared and brought up. This is done in the interest of society and good government. It is said by Chancellor Kent (volume 2, pp. 220, 221) that: ‘The father, and on his death the mother, is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors for maintenance and education. The courts of'justice may, in their sound ■discretion, and when the morals or safety or interest of the child strongly require it, withdraw the infants from the custody of the father or mother, and place the care of them elsewhere’ —citing in support of the text In re Wollstonecraft, 4 Johns. Ch. (N. Y.) 80; Commonwealth v. Addicks, 5 Bin. (Pa.) 520; Ex parte Crouse, 4 Whart. (Pa.) 9; United States v. Green, 3 Mason, 482, Fed. Cas. No. 15,256; Case of Wellesley v. Duke of Beaufort, 2 Russell, 1; State v. Smith, 6 Greenl. (Me.) 462, 20 Am. Dec. 324. The same doctrine is set forth in section 440 et seq., Church on Habeas Corpus.
“In Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653, Chancellor Walworth, delivering the opinion of the court, says, among other things: ‘The father’s right to his children is not absolute and inalienable. In those American cases which uphold to the greatest extent the right of the father, it' is conceded that it may be lost by his ill-usage, immoral principles, or habits, or by his inability to provide for his children. But the great principle which runs through nearly all the American and the earlier English cases is that which is stated by Thompson, C. J., in the Matter of Waldron, 13 Johns. (N. Y.) 418, when speaking of the custody of the infant, in the case of the claim by the father, to such custody, viz.: “It is the benefit and welfare of the infant to which the attention of the court ought principally to be directed.” As a necessary result of this principle it follows that the custody of infant children must always be regulated by judicial discretion exercised in reference to their best interest. * * * The interest of the infant is deemed paramount to the claims of both parents. This is the predominant question which is to be considered by the court or tribunal before whom the infant is brought. The rights of the parents must in all cases yield to the interests and welfare of the infant.’ After discussing the fact that this regulatory power is in the sovereign or state, the opinion further proceeds: ‘It seems, then, that by the law of nature the father has no paramount, inalienable right to the custody of his child. And the civil or municipal law in setting bounds to his parental authority, and in entirely or partially depriving him of it in cases where the interests and welfare of his child require it, does not come in conflict with or subvert any of the principles of the natural law. The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection .of that government. And such government is obligated by its duty of protection to consult the welfare, comfort, and interest of such child in regulating its custody during the period of its minority.’ Finally the court says: ‘Upon a review of all of the authorities binding upon the courts of this state, I have come to the undoubting conclusion that the right of a father to the custody of his child'is not absolute, and that its custody is referable to its interest and welfare, and is to be selected by the court in the exercise of a sound judicial discretion, irrespective of the claims of either parent. This conclusion is warranted by the law of the state, as well as by the law of nature. A sense of parental duty ought ever to withhold a parent from pressing his or her claims to the custody of a child whenever the true interest of such child forbids it; and, whenever this parental obligation fails to influence the conduct of the parent, it is fortunate that the enlightened principles of our law authorize our courts to interfere in behalf of the child.’ See, also, State v. Smith, supra, which was a case where the lather was seeking to recover his children from the custody of the grandfather, and relief was refused.
“In the case of United States v. Green, supra, where the contest was between the father and grandfather, who were citizens of different states, over the custody of the child, the court, quoting approvingly from the opinion in the case of State v. Smith, above referred to, Mr. Justice Story delivering the opinion, said: ‘As to the question of the right of the father to have the custody of his infant child, in a general sense it is true. But this is not on account of any absolute right of the father, but for the benefit of the infant; the law presuming it to be for his interest to be under the nurture and care of its natural protector, both for maintenance and education. When, therefore, the court is asked to lend its aid to put the infant into the custody of the father, and to withdraw it from other persons, it' will look into all the circumstances, and ascertain whether it will be for the real, permanent interests of the infant; and, if the infant be of sufficient discretion, it will also consult its personal wishes. It will free it from all undue restraint and endeavor, as far as possible, to administer a conscientious, parental duty with reference to its welfare. It is an entire mistake to suppose that the court is at all events bound to deliver over the infant to his father, or that the latter has an absolute vested right in the custody.’ See State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223; also note in Matter of Scarritt, 43 Am. Rep. 779; In re Bort, 25 Kan. 308, 37 Am. Rep. 255. It is said in 21 Am. & Eng. Ency. Law (2d Ed.) p. 1037 et seq., that: ‘The guiding consideration by which the court will be influenced in determining the proper parent or other person to whom the custody of the child will be granted is always the welfare of the child’ — citing in note 1 leading cases from England, Ganada, and America in support of the text.
“The following citations from our own reports are likewise in point: Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196; Parker v. Wiggins, 86 S. W. 788; White v. Richeson, 94 S. W. 202; State v. Deaton, 93 Tex. 243, 54 S. W. 901; Schneider v. Schwabe, 143 S. W. 265. In Legate v. Legate, supra, it was held that the law recognized the parent as the natural guardian entitled to the custody of the minor, so long as he discharged the obligation imposed upon him, but added that it did not recognize any property interest in the child, and that the state, as its protector, interested in its proper education, had the right, in proper cases, to deprive a parent of its custody, when demanded by the interest of the child and of society. The same doctrine was recognized in the case of Schneider v. Schwabe, supra, wherein a writ of error was denied by the Supreme Court. Many cases hold that, where the parent has vol-. untarily surrendered the custody of his child, or abandoned it to others, he will be denied its custody where upon application it appears that it is for the best interest of the child to remain ■with those to whom its custody had formerly been given. This is especially true where it is shown that it is well provided for in its new home, is surrounded by influences likely to promote its best interest, and where a tender relationship has sprung up between the child and those with whom it is living. See State v. Lib-bey, supra. All of the cases cited recognize the fact that if, for any substantial reason, it appears to the trial court that the parent is an improper person to have control and care of his child, especially where it has been given to another, it will not disrupt the new relationship and return the child to the custody of its parent ; and in State v. Libbey, supra, it was held to be within the sound discretion of the court whether the custody of the child would be given to the father, and that in determining the question the court will consider, not only the fitness of the father for the trust, but the condition of the child with the person from whose custody it is sought to be taken, its relationship to such person, the present and prospective provisions for its support and welfare, the length of its residence there, and whether with the consent of its father, and the understanding, tacit or otherwise, that it should be permanent, the strength of the ties that have been formed between them, and, if the child has come to years of discretion, its wishes upon the subject.
“We do not think the eases cited and relied upon by appellant contravene the doctrine here announced. In the Deaton Case, 93 Tex. 243, 54 S. W. 901, there was no evidence that the mother, who was the applicant, was an unfit person for the custody of the child, nor did the court find, as here, that it would be for the best interest of the child to remain with respondent. Neither was it held in the case of Watts v. Lively, 60 S. W. 676, that the father was not a fit person to be given the custody of his child; but it was held that the mere fact that the child would be more comfortably reared with its grandparents was not enough to authorize the court to disregard the father’s right. It is true that many of the cases are made to turn upon the fact that the father had, prior thereto, voluntarily surrendered the custody of the child to the care of the persons from whom he sought to remove it; but this does not seem to be an essential requisite. We take it that whenever the court from all the circumstances in evidence finds as a conclusion of fact that the best interest of the child will be subserved by awarding its custody to persons other than its parents that this will be done irrespective of any other consideration. But in the instant case the children were voluntarily relinquished by appellant, not, it is true, to the respondents, but to their mother. During her custody of them it seems that they became alienated from their father, and are now disinclined to return to him. The court, no doubt, took all these matters, as well as others shown by the record, into consideration in determining what was for the best interest of these children.
“In the present case, the father having voluntarily surrendered them to their mother, she took them, and for two years cared for and performed all the duties of a mother and father as well. There they naturally, if not before, imbibed and became imbued with their mother’s side of the unfortunate differences which terminated in a legal separation of their parents. During these two years relator seems rarely to* have seen them, and failed to contribute to their support and maintenance, but all these duties devolved upon the mother, who faithfully discharged them with love and affection till death, at which time they followed her remains to Austin, where the respondents reside, who after the burial took charge of them. Here they found refuge in homes of culture and refinement with respondents, their relatives, who, the record shows, are willing and amply able to maintain, rear, and educate them. A tender and affectionate regard has sprung up between the children and respondents. They are anxious to remain, and are being reared and educated under Christian influences, presumably happy and contented in their new homes.
“The trial court, in the exercise of its discre-, tion, has determined not to disturb existing conditions, on the ground that it will conserve the best interest and welfare of said children to remain with respondents; and, under all the circumstances disclosed by the record, we do not feel justified in saying that its discretion has been abused, for which reason said judgment is aflirmed.”

In the instant case the jury have answered that the father voluntarily surrendered these children to their aunt, and that she took and for many years cared for them and performed all the duties of a mother. The children are now of an age at which their wishes should somewhat he consulted. A tender and affectionate regard has sprung up between them and their aunt, Alta Kirkland, and we regard the instant case, especially in the light of the answers of the jury to the questions propounded by the court to them, as a much stronger case than the facts in the case ^ust quoted.

In the case of Peese v. Gellerman, 51 Tex. Civ. App. 39, 110 S. W. 196, the court uses this language;

“It was alleged in the petition that a gift of the child was made by her father to her aunt, and the subject of the first assignment of error is the overruling of an exception to that allegation. The proposition is that the parent has no property interest in this child which is subject to be given away, and that he cannot relieve himself of his parental obligations to the child. While the proposition may be a correct one, and while, standing alone, an attempted gift of a child would be invalid, still the fact of the gift having been made would place the parent in the attitude of invoking the powers of a court of equity in seeking to regain possession of the child. Such being the case, the matter of the gift of the child was properly alleged and properly considered with the other facts in arriving at a conclusion as to where the custody of the child should be placed” — citing Legate v. Legate, 87 Tex. 248, 28 S. W. 281.

Continuing, the court says:

“The force of the opinion cited is parried in a later ease hy the Supreme Court in State v. Deaton [93 Tex. 243] 54 S. W. 901, but the allegation can be justified by the language of the last decision. The court said: ‘When the parent has parted with the possession and control of his or her child and seeks to regain that possession through the courts, it becomes the duty of the court in, a proper case to protect the children against the evil results that may flow to it from an improper direction through incompetent or disqualified parents.’ If the transfer of the custody of the child should be considered in trying the case, it cannot be improper to allege it. If a man has voluntarily surrendered the control of his child for the first seven or eight years of its life and permitted some one-else to feed, clothe, and care for it, there is not much room for any sentimental dissertation on the subject of the court sundering the ties existing between the father and child. It is unfortunately the case that these ties are sometimes forgotten and disregarded until the child has reached an age when it may be useful to, the parent, and then they are invoked. Such resurrected affection may well be viewed with suspicion, and the parents should be required to show that the interest of the child will be subserved by having its custody returned. If the doctrine of the Missouri case, cited with approval in the case of State v. Deaton, to the effect that when a father sues for the custody of a child no burden would rest upon him, except to prove the relationship to be a true one, still, when it appears that he has voluntarily parted with the custody of his child, contributed little or nothing to its support, and allowed some one else to do what he should have done, it seems that any presumption that might arise as to his peculiar fitness to rear the child will be destroyed, and that he would then be required to establish his superior fitness before he could be awarded its custody. There is no basis for a presumption that the prompting's of parental affection will cause a father to tenderly care for his child in the future, when he has failed to so act in the past.”

In the case of Schneider v. Schwabe, 143 S. W. 265, the court uses the following language:

“Rosa Schneider pai'ted with the possession ■of her children, and for nine years contributed nothing to their support, and took little or no interest in them. One was a seven months old babe, whom she left in the hands of a poor man with a large family, and came to San Antonio and married and gave birth to another family. While recognizing the natural right that parents have to the custody of their children, the children have lights that are higher and of more importance to state and society than the naked right of parents to their custody; and, if their interest can be better conserved by leaving or placing them in charge of some one who can better protect them from the evils that threaten the lives and destinies of the young, the state has the authority and it is its bounden duty to place them in that custody. No sentimentality should attend a proceeding of this character, but the permanent interest and welfare of the child should be the great aim and end to be attained. Under the facts of this case, if the interests and happiness of the children are to be consulted, there can be no doubt that the children will Jie more kindly nurtured and trained by their uncle, who is in comfortable circumstances on a farm in De Witt county, away from the seductive influences of a modern city, than in a rented house in the city with three other children of their half blood, dependent upon exertions of a stepfather with a salary of $40 and the uncertain stipends of those who patronize the restaurant in which he is employed.”

All the facts were heard by the lower court and by the jury, who passed upon the questions submitted to them by the said court. The jury have answered the questions in no uncertain terms. They saw and heard the witnesses as they testified. It was their province to pass upon the facts, and their verdict is binding as .to this court. That verdict is that George C. Matthews and his wife are not proper persons, and that Alta Kirkland and her husband, Ed Kirkland, are fit and proper persons, to have the cáre and custody of the minor children in this case. The jury also passed upon the question as to whether Matthews gave to Mrs. Alta Kirkland these children, and they have said, taking all the facts that were before them, that the best interests of these children will be best subserved by placing their care and custody in the hands of Alta Kirkland and Ed Kirkland. They have also passed upon the proposition, as said above, that their best interests will be subserved financially while tallowing the custody of these children to the said Alta and Ed Kirkland. These questions of fact have been decided by the jury, and there is testimony to support the findings.

What we have said disposes of all the assignments, save and except the one calling in question the action of the court in permitting the plaintiff Alta Kirkland to testify to statements made by the minor children. If there was error in the action of the court in admitting this testimony, it was not of such character as probably influenced the result, and would not justify this court in reversing and remanding said cause.

Relieving that the issues were properly submitted to a jury, that they have passed upon the same, and there being nothing to show that the said jury was influenced by any improper motive, the judgment of the court below is in all things affirmed.

It is so ordered.
      <g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: SWEARINGEN, J.

license: Public Domain

text:
    GALVESTON, H. & S. A. RY. CO. v. BRASSELL et al.
    (No. 5652.)

    (Court of Civil Appeals of Texas. San Antonio.
    May 10, 1916.
    Rehearing Denied June 7, 1916.)
    1. Damages &wkey;132(l) — Personal Injuries— . Excessive Verdict.
    In an action by husband and wife against a railroad for personal injuries to the wife while alighting 'from a train, a verdict for $6,000 was not excessive, where plaintiff, a strong, vigorous woman, free from pain, was confined to her bed much of the time and had her capacity to perform her usual duties impaired, her sufferings being intense from the time of the injury for two years and a month, to the date of last trial, the suffering and diminished capacity having grown worse and being permanent.
    [Ed. Note. — Eor other cases, see Damages, Cent. Dig. § 372; Dec. Dig. <&wkey;>132(l).]
    2. Assignments c&wkey;129 — Parties—Attorney as Party — Agreement to Pay Contingent Eee.
    The agreement of a husband, who employed an attorney to take the case against a railroad company for injuries to his wife, to pay half the amount recovered, after expenses wore paid, there being no written assignment of any interest in the cause of action, was a mere agreement to pay a contingent fee, not rendering the attorney a necessary formal party to the suit.
    [Ed. Note. — Eor other cases, see Assignments, Cent. Dig. §§ 213-219; Dec. Dig. <&wkey;>12&.]
    3. Carriers <&wkey;348(G) — Carriage oe Passengers — Action for Injuries — Instruction.
    In an action against a railroad for personal injuries while alighting from a car, an instruction that if the jury found that a person of ordinary prudence would not have attempted to alight at the place where plaintiff attempted to, in the manner in which she attempted to, they would find verdict for defendant, notwithstanding they found that defendant was negligent in some or all of the respects complained of, fully submitted the issue of plaintiff’s contributory negligence in the manner of leaving the car.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1403, 1405; Dec. Dig. &wkey;34S(6).]
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    Suit by J. M. Brassell and another against the Galveston, Harrisburg & San Antonio Railway Company. Erom a judgment for plaintiffs for $0,000, defendant appeals.
    Judgment affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Harwood & Miller, of Gonzales, for appellant. Emmet B. Cocke, of San Antonio, for appellees.

       Application for writ of error pending in Supreme Court.

   SWEARINGEN, J.

This is a second appeal of this case. The facts are substantially as stated in the opinion rendered on the first appeal, and reported in 173 S. W. 522, as follows:

“This is a suit for damages to Mrs. Maggie Brassell, instituted by her and her husband, J. M. Brassell, alleged to have accrued from personal injuries inflicted upon her by a fall from the steps of a car. belonging to appellant. It was alleged that she was a passenger on the train of appellant, and that when she attempted to alight, at her destination, she fell and was injured by reason of the negligence of appellant in failing to provide a suitable place for passengers to leave the train, in not providing some one to assist passengers in alighting. The cause was tried by jury, and resulted in a verdict and judgment for appellees in the sum of $6,000.”

Appellant’s first assignment of error is that $6,000 is an excessive amount for the injuries inflicted.

It appears from the evidence: That prior to the injury complained of Mrs. Bras-sell was free from pain, a strong, vigorous woman. Since the injury, and because of it, she has suffered intense pain. She has been confined to her bed much of the time, her capacity to perform her usual duties has been much impaired. That all this suffering and incapacity has continued from the time of the injury, June 24, 1913, until July 1915, the date of the last trial. That the suffering and diminished capacity have grown worse and are permanent. Erom these facts the jury found, upon proper instructions, that $6,000 was a fair compensation for the injuries inflicted. We cannot find anything in the record that would authorize this court to go behind the verdict of the jury and the judgment of the trial court and declare the amount excessive.

Appellant, by its second, third, fourth, and fifth assignments, through very many propositions, contend that because appellees had agreed orally to pay their attorney a contingent fee of one-lialf of the net amount recovered in this suit, the attorney should have been made a formal party to the suit. There was no written assignment of any interest in the cause of action to the attorney. Appellee J. M. Brassell employed the attorney to take the ease for one-half of the amount recovered after the expenses were paid. This was a mere agreement to pay so much as a contingent fee. G., H. & S. A. v. Ginther, 96 Tex. 300, 72 S. W. 160. The attorney for appellees so identified himself with the proceedings in the trial of this cause as to become bound by the judgment. Bonner v. Green, 6 Tex. Civ. App. 99, 24 S. W. 835; St. Louis, S. F. & T. Ry. Co. v. Thomas, 167 S. W. 786; Hughes-Buie Co. v. Mendoza, 156 S. W. 330. The second, third, fourth, and fifth assignments are overruled.

The sixth and seventh assignments complain that the trial court erred because it refused special charges requested by appellant. The special charges presented a grouping of facts alleged by appellant as contributory negligence of appellee. In effect, the facts averred were that if appellee held the railing at a point too far from the ground, and that no ordinary person under similar circumstances would have held the rail so high, etc. There was no evidence that Mrs. Brassell held the railing at a point too high above the ground. The evidence is that Mrs. Brassell, while standing on the bottom step, caught the railing with her right hand at a point on a level with her waist. There is no evidence that tends to show whether or not this was too high from the ground.' The issue of appellee’s contributory negligenc# in the manner of leaving the car was fully submitted in the seventh paragraph of the court’s main charge:

“If you find from the evidence that a person of ordinary prudence would not have attempted to alight from the train at the place where Mrs. Brassell attempted to alight, * * * in the manner in which she attempted to alight, then you will find a verdict for the defendant, notwithstanding you may find that the defendant was negligent in some or all of the respects complained of.”

And, in the special charges given, the court applied the law to the special facts of the case of which there was evidence. G., O. & S. F. Ry. Co. v. Shieder, 88 Tex. 167, 30 S. W. 902, 28 L. R. A. 538.

There is no error in the judgment of the trial court, and the same is affirmed.
      (grmFor other oases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al. v. HUGHSTON GRAIN CO. et al.
    (No. 992.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1916.
    Rehearing Denied May 31, 1916.)
    1. Carriers <&wkey; 177(1)—Connecting Lines— Liability—Through Shipment.
    Within Vernon’s Say les’ Ann. Civ. St. 1914, art. 731, providing that all carriers over whose lines freight is received by either for through shipment by them, on a contract for through carriage, recognized, acquiesced in, or acted on by them, shall be considered connecting lines, with liability under article 732 for injury to the goods on either lines, where the S. company issues its bill of lading for a through shipment of a car of com from a point on its line to a point on the line of the I. company for a through charge, the contract stating that it was executed by the S. company as agent with respect to the route beyond its line, and the I. company received and carried the goods to destination in the same car and without a new contract, but by virtue of the original contract, there was a through shipment.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 775, 778; Dec. Dig. &wkey;177(l).]
    @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      2. Carriers <&wkey;132 — Injury to Freight — Defenses— Burden of Proof.
    The earner has the burden of proof on its defense that damage to freight was caused by an unprecedented flood.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. &wkey; 132.]
    3. Carriers <&wkey;135 — Injury to Freight — Measure of Damages.
    The action being for injury to freight, and not conversion thereof, by the carrier, and the evidence showing it was rendered worthless, the measure of damages is the market value at time and place of tender.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603^-004% ; Dec. Dig. <&wkey;135J
    Appeal from Collin County Court; H. D. Davis, Judge.
    Action by the Hughston Grain Company and others against the St. Louis Southwestern Railway Company of Texas and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Head, Dillard, Smith, Maxey & Head and J. F. I-Iolt, all of Sherman, E. B. Perkins, of Dallas, and J. E. Abernathy, of McKinney, for appellants. J. D. Cottrell, of Plano, and John Doyle, of McKinney, for appellees.
   HUFF, C. J.

The appellees brought suit against the St. Louis Southwestern Railway Company of Texas, and the International & Great Northern Railway Company, for $521.-05, and interest. Damages are alleged to have been sustained to a shipment of a car of corn. The case was tried before the court without a jury, and judgment rendered in favor of the appellees, against both defendants, for the sum of $559.10, with interest, with a judgment in favor of the St. Louis Southwestern Railway Company, over against the International & Great Northern for a like amount. From this judgment the appeal is prosecuted.

On the 15th day of November, 1913, the Tom Bean Grain Company, at Tom Bean, Grayson county, f£ex., a station on the line of the St. Louis Southwestern Railway Company of Texas, designated as the “Cotton Belt,” delivered a car of corn to that road, to be shipped and delivered at Eloise, Tex., a station on the International & Great Northern Railway Company, the bill of lading stipulating that notice was to be given to the Hughston Grain Company. This company had contracted to sell the car to Nash-Robinson & Co., who resided at Marlin, but directed the ear to be delivered at Eloise, Tex. The Cotton Belt received the car at Tom Bean and issued its bill of lading for a through shipment. The Cotton Belt carried the car to Ft. Worth, and there delivered it to the International & Great Northern Railway Company in good condition. It was transported over the rest of the route by the latter road. It appears that the ear was afterwards hauled into Marlin, and the trial court finds the corn was then in a worthless condition. There was no other bill of lading issued by the connecting carrier, but it is in-ferable that the shipment was taken through on the same bill, and freight paid without change of car. There is no other contract shown than the one executed by the initial carrier. The corn, when delivered to the initial carrier, was in good and merchantable condition, on November 15, 1913. When it was tendered to Nash-Robinson December 12 or 14th, it was worthless, and was not accepted by that company. The appellees were the owners, and under the contract to deliver merchantable corn retained the title thereto. The contract stipulates that:

The Cotton Belt agrees to safely deliver at its ■usual place of delivery at the destination, if on its road; otherwise, to deliver to another carrier on the route to destination. “In issuing this bill of lading this company agrees to transport only over its own line, and except as otherwise provided by law, acts only as agent with respect to the portion of the route beyond its own line. No carrier shall be liable for loss, damage or injury not occurring on its own road or_ its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law; but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed.”

The Cotton Belt, under its first and second assignments, asserts error in the findings of fact by the trial court, to the effect that the shipment was a through shipment, and to the conclusion of law that the shipment was a through one. In support of its propositions it cites Railway Co. v. Jones, 58 Tex. Civ. App. 132, 124 S. W. 194; Railway Co. v. Chittim, 135 S. W. 747; Elder, Dempster v. Railway Co., 105 Tex. 628, 154 S. W. 975; Railway Co. v. Grady, 171 S. W. 1019. In the Jones Case, supra, our Supreme Court (104 Tex. 96, 134 S. W. 330) held:

“To bring a contract * * * within the terms of article 331a, the contract entered into by the first carrier must be for carriage from the point of shipment to the destination, and the shipment must be received and carried by the connecting carriers under that contract.”

The evidence in that case shows that the cattle were unloaded at the intersection of the two roads and reloaded into other cars belonging to the connecting carrier. The latter road in that case did not recognize and accept under the original contract. The Supreme Court said, in that case, there must be something other than receiving the shipment because the law required it to do that. Mr. Justice Hawkins, speaking for the Supreme Court, in the Elder Case, supra, at page 648 of 105 Tex., at page 986, of 154 S. W., said:

“It will be observed that by its own express terms, as pointed out in the last-mentioned decision of this court, the effect of this statute is limited to cases in which there is a contract for through carriage which has been ‘recognized, acquiesced in, or acted upon’ by such connecting carriers. Now, when that status exists, there is no reason for the application of the rule which was announced in the Baird Case, supra, and the cases following it. There is therefore no conflict whatever between said article 331a and 331b and those decisions.”

These articles are now in Vernon’s Sayles’ Civil Statutes, arts. 731, 732. The decisions referred to by Mr. Justice Hawkins announce the proposition that the accepting carrier of the freight could not be held to have ratified the contract because it performs some of the services contemplated by it when it was not at liberty — contract or no contract — to refuse to render the service. If the-facts in this case warrant the finding that the delivering carrier “recognized, acquiesced in, or acted upon” the contract, the stipulation that damages for which the Cotton Belt was liable should be confined to its own acts on its own road would be a through shipment in spite of limiting the damages to its own line. The statute expressly provided such contract is a through shipment, “notwithstanding any stipulation, or attempted stipulation, to the contrary by such carriers, or either of them.” The mere receiving of the freight by the connecting line is not a ratification of the contract. In this case the connecting carrier, not only received the freight, but it did so without limitation or stipulation changing the contract in the least. It carried it forward in the same car to the place designated in the contract as the destination. This occurs to us as a recognition of the contract. It acted upon it. The bare receiving of the car did not make a prima facie case; but receiving and transporting to destination on its line of road, without any new arrangement or contract, as in 'the Jones Case, should be considered, we think, some evidence of recognition. It occurs .to us that it recognized that there was no necessity for a new contract, and continued the shipment under the one made by the initial carrier. We do not clearly perceive the meaning of the clause in the contract in question under consideration—

“that this company agrees to transport only over its own line and except as otherwise provided, by law, acts only as agent, with respect to the portion of the route beyond its own line.”

This clause excludes the idea, we think, that it was acting as the agent of the shipper over the route beyond its line, but implies that it was acting as the agent for that portion of the route. That portion belonged to the International & Great Northern and the Cotton Belt, therefore, acted as agent for the International & Great Northern. The statute stipulates, when the contract is recognized by either, they shall be construed to be connecting lines, “and be deemed and held to be the agents of each other, each the agent of the others and all the others the agent of each,” and held to be under a contract with each other and the shipper for safe transportation. It seems to us this contract was made in view of the statute, thereby recognizing the rights of the carriers against each other for any damages paid occasioned by the other. Under the common law, a carrier giving a bill of through shipment is not liable beyond its own line on the theory that it is not a common carrier beyond its own line, but the statute makes each a common carrier beyond its own line as to the shipper when they are the agents of each other. The Cotton Belt, by the contract, proposed to act for both, as principal on its own line and as agent beyond its line. Its ultimate liability should be confined to its own line, but as to the shipper, the law makes it liable as agent in the transportation over the entire route. The contract appears to recognize this as true by the clause “but nothing in this bill of lading shall be deemed to exempt initial carriers from any such liability so imposed.” This is an intrastate shipment, and hence this clause cannot be construed as referring to interstate shipments under the act of Congress regulating interstate shipments.

“Without using the term ‘partnership’ to describe the relationship between connecting carriers, the same general consequences may result when a joint contract is found to exist. This may be evidenced by the making of an arrangement to carry freight over ail their lines for one through charge, in solido, payable at the terminus, accompanied by a pledge collectively to give satisfaction. It has been said that wherever several connecting carriers associate themselves tógether and form a connecting line of common carriers, each being empowered to contract for freight, and passengers, for the whole line, and to receive pay for same, which.is to be divided in prescribed portions, they are jointly liable for losses or injuries upon a part of the line. Where connecting carriers are not treated as partners and no express joint undertaking has been made by them, an agreement by one may be imputed to the other on the theory that the former was the agent of all to make a contract in reference to a shipment over their several lines. Where this has occurred, each may be held liable for any loss resulting from the failure of the other to perform the conditions imposed by the contract, and each is entitled to the benefit of all valid limitations of the carrier’s liability contained in the contract.” 4 R. O. L., Carriers, § 348.

To our mind it was the purpose of the statute to make the carriers with connecting lines liable, either jointly or separately, to the shipper for damage done on the route, where they are the agents of each other, notwithstanding a provision limiting the damages to the respective lines, and this agency should be considered prima facie established by the court where it is shown they recognized, acquiesced in, or acted upon the contract. It occurs to us that prior to this statute there was some confusion in the decisions as to the liability for the acts of carriers standing in the relation of agents. The evidence shows a charge was made for a through shipment, a bill issued over the entire line to the destination on the connecting lien. It was a bulk shipment, and a carload of corn. The car was carried through and the freight charges not changed. The shipment was carried by the connecting carrier to the destination without demanding its freight to be paid separate from the initial carrier and without a different contract, but upon the same contract, in the same car, and by virtue of a contract stating it was executed by the initial carrier as the agent with respect to the route beyond its own line.. It occurs to us Judge Phillips’ discussion of a through shipment, and what it takes to constitute one, applies with force in this case, even though in that case that was a discussion as to an interstate shipment. Railway Co. v. Wood, 105 Tex. 178, 146 S. W. 588. The connecting carrier in this ease does not seek a release because the contract was not made by or for it; but it is the initial carrier who made the contract purporting to act as agent, and expressly stipulating that nothing in the bill of lading should exempt it from the liability imposed by law that seeks to be relieved from its obligation. We believe the trial court ruled correctly under the facts and the contract introduced in this case, in holding the Cotton Belt liable and in giving it a judgment for any sum paid by it against the International & Great Northern Railway Company.

It is also contended by both roads that the corn was damaged by an unprecedented flood, and therefore they are not liable. The trial court finds after the car was delivered to the International & Great Northern Railway it was submerged, and the com practically destroyed, but that the flood was not an Unprecedented one. If it shall be conceded that the witnesses testified to the flood of the Brazos river, and that it was unprecedented, the evidence does not show that in fact, while at its highest, the' car was then in Eloise, and submerged by that particular flood. The facts do not show where the car was during that flood. The witness introduced never saw it in the flood or at that station. The flood appears to have been in December, 1913. The witness, some time about the 12th or 14th of December, saw the car at Marlin, some 15 miles from Eloise. I-Ie never saw it at the point claimed. This place appears to be situated on the Brazos river. Whether it was in the flood or not is not shown; in fact, there is nothing to show it was damaged by the overflow of the river. It occurs to us the defendants could have shown when the car was placed at that point, if it ever was. They evidently .knew the train crew that handled the car. The witness who testified was at the time of testifying, county judge of the county. The car appears to have been on the road some 26 or 28 days. The testimony shows that it should have gone through in from 4 to 6 days. There is some conflict of authority, where there is negligent delay in shipments, and a flood or storm damages goods, as to whether the delay is the proximate cause of the injury. It appears to be the rule in this state that it is not. Hunt Bros. v. Railway, 74 S. W. 69; Railway Co. v. Bergman, 64 S. | W. 999; Fentiman v. Railway Co., 44 Tex. Civ. App. 455, 9S S. W. 939. If this car was in fact delivered at Eloise, no notice was given of its arrival at that place, to the owner or consignee until after its damage. While the court finds the car was damaged by being submerged, he finds that it was not by an unprecedented flood. The case of appellant, if there is any, was that the car was at Eloise on the Brazos river, and on account of an unprecedented flood it was there submerged. There is no conclusive evidence that it was there during that rise. The witness testifying did not see it there. His testimony is but conjecture or pure hearsay. The burden was on the railroads to show it was so damaged. The court found they had proven a submergence, but not by an unprecedented flood. The car of com, the findings of the court and the evidence show, was rotten or worthless on December 12th or 14th, at Marlin. From the evidence we cannot say with absolute certainty what caused it. The appellants did not prove what did. The court, from the witness’ conjecture and his evident hearsay, could not say that the proof showed it was damaged by an unprecedented flood, and he did not so say. These facts were for the court, and, he having found against appellants, we do not feel warranted in disturbing the judgment.

This is a suit for damages to the car of com. The court found it was worthless at the time it was tendered to Robinson & Co., and rendered judgment for the market value of the corn at that time and place. This is not a suit for conversion, as contended by the appellant. We think the rule invoked by the International & Great Northern Railway is not therefore applicable to the pleadings and evidence as found by the trial court.

The case will be affirmed.
      cgssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WIDSON et al.
    (No. 7499.)
    (Court of Civil Appeals of Texas. Dallas.
    May 20, 1916.)
    1. Justices op the Peace &wkey;174(8) — Appeal —Pleading—New Cause.
    Where the original cause of action was on contract of a carrier to transport oats between two points, under which the carrier was bound only to deliver them in like condition at the destination, an amended petition on appeal to the county court after judgment of the justice court for plaintiffs showing a second contract for shipment between the original destination and a third point set up a new cause; the carrier not being liable for damage during second shipment unless it obligated itself on the second contract.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 670; Dec. Dig. <&wkey; 174(8).]
    2. Evidence &wkey;317(9) — Admissibility — Heaksay.
    Plaintiffs’ testimony as to what they were told in regard to damage to a car of oats shipped by them is incompetent, and its admission is error in their suit against the carrier for such damage.
    [Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 1182; Dec. Dig. <&wkey;>317(9).]
    Appeal from Rains County Court; J. B. Allred, Judge.
    Action by Robert Wilson and others against the Missouri, Kansas & Texas Railway Company of Texas. To an order overruling defendant’s exception to the amended petition on appeal to the county court, defendant appeals.
    Reversed and remanded.
    C. C. Huff, of Dallas, and Dinsmore, Mc-Mahan & Dinsmore and Paul G. Thompson, all of Greenville, for appellant. J. W. Humphrey, of Point, and Crosby, Hamilton & Harrell, of Greenville, for appellees.
   RAINEY, C. J.

Appellees sued the appellant in the justice court to recover damages to a carload of oats shipped over appellant’s road from Point, Tex., to Crowley, La. Ap-pellees alleged, in effect, that said oats were shipped in a leaky car, and when Crowley, the place of destination, was reached, the oats were wet and damaged by reason of the car leaking, and were refused by the consignee because of such damaged condition. Appellees recovered judgment in the justice court, and an appeal was taken by appellant to the county court, where appellees amended their plea setting up the original claim, and, in addition thereto, that said car of oats was reshipped over another road to Teague, Tex., and set up further damage to the oats. Appellant excepted to the amended petition setting up a new cause of action, which exception was overruled, and of this appellant complains.

The first cause of action set up in the-justice court was on a contract with appellant to transport and deliver a car of oats from Point, Tex., to Crowley, La. Under this contract the appellant was only bound to deliver the oats in like condition as when received by it, and was not obligated to transport them over another line to another point, and, if by reason of the car leaking the oats were damaged on the road from Teague to Crowley, the appellant would not be liable therefor, unless it obligated itself under a new contract for said leaky car to be used in the transportation of said oats over the line to Teague. Therefore the amended petition alleged a new cause of liability on the part of appellant.

The appellant transported the oats to Crowley as per its shipping contracts, and there is no competent evidence to show that said oats were damaged while so being transported to Crowley by appellant. There was testimony by Robert Wilson and H. P. Harris as to what they were told about the damage being the cause of the consignee refusing to receive the oats. This testimony was admitted over objections of appellant, and its admission was error. Unless it is shown that the oats were damaged on appellant’s line before they were offered for delivery at Crowley, appellant would not be liable for the damage on the other road, unless it was a party to the reshipment contract to Teague. This the evidence fails to show.

The judgment is reversed, and the cause remanded.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    LIBERAL LOAN & REALTY CO. v. MEYERS.
    (No. 5667.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 10, 1916.)
    1. Animals <&wkey;46 — Enforcement or Lien — PARTIES.
    In a suit for the conversion of certain horses, upon which plaintiff alleged a lien for their food and care, the owner, who had entered into an agreement with plaintiff for their care, and of whom the defendant purchased, while a proper, was not a necessary, party.
    [Ed. Note. — Eor other cases, see Animals, Cent. Dig. §§ 141, 142; Dec. Dig. &wkey;546.]
    2. Animals <&wkey;46 — Lien — Rights oe Purchaser.
    Where plaintiff had a lien on horses for food and care, and defendant knew that the one from whom it bought them owed plaintiff therefor, it could not take possession of them without paying plaintiff’s debt.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 141, 142; Dec. Dig. &wkey;46.]
    3. Fraudulent Conveyances &wkey;300(7) — Evidence — Inadequate Price.
    The fact that two horses on which plaintiff had a lien for food and care, together with other personal property, were sold for $50, and that immediately afterwards the horses were sold for $225 or $250, indicated that the sale was simulated to defeat creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 902; Dec. Dig. &wkey;> 300(7).]
    4. Animals <&wkey;46 — Lien — Right Against Purchaser.
    Plaintiff, who, under an agreement with the owner, had a lien upon horses for their food and care, had a right of action for the conversion of the horses by a purchaser from the owner, who did not discharge the lien.
    [Ed. Note. — For other eases, see Animals, Cent. Dig. §§ 141, 142; Dec. Dig. &wkey;46.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Suit by C. C. Meyers against the Liberal Loan & Realty Company. From a judgment for plaintiff, reversing a judgment in justice court for defendant, defendant appeals.
    Affirmed.
    Chambers & Watson, of San Antonio, for appellant. Mangum & Townsend, of San Antonio, for appellee.
   FLY, C. J.

This is a suit for $171.95 instituted by appellee against appellant in the justice’s court. The suit is based on the conversion of certain horses by appellant, upon which appellee alleged that he had a lien for their food and care. A trial in the justice’s court resulted in a judgment for appellant, and upon appeal to the county court the judgment was rendered in favor of appellee for $75.61. This suit is based solely upon the ground that appellee had a lien on certain horses owned by A. C. Gotwalt, which he had placed with appellee to be fed, cared for, and trained to the use of appellant. It is agreed that the cause be submitted upon the following issues:

“(a) Was A. O. Gotwalt, who entered into an agreement with plaintiff for said horses to keep same at $40 per month, and who was not a party to this suit, and who did not appear, a proper and necessary party?
“(b) Did the plaintiff lose his lien on said horses, if any he had, when he placed same in the pasture of Erancis Dullnig?”

We answer the first issue that Got-walt might have been a proper party, but was not a necessary one. If appellee had a lien on the horses for food and care given them, and appellant knew that Gotwalt owed him for such care and food, it could not take possession of the horses without paying ap-pellee’s debt, although appellant may have bought the horses from Gotwalt. In this connection it may be stated that when two horses and other personal property are sold for $50, and the horses are immediately sold for $225 or $250 the indications are that the sale was simulated to defeat creditors.

In the case of Fouts v. Ayres, 11 Tex. Civ. App. 338, 32 S. W. 435, it was held that a mortgagee of chattels, though not entitled to possession thereof, may sue one for conversion who bought the chattels from the mortgagor with notice of the incumbrance. It was also held that the mortgagee was not compelled to foreclose his lien, but may sue the person who converted the property and recover a judgment against him. There are numerous decisions cited which sustain the opinion. In the case of Focke v. Blum, 82 Tex. 436, 17 S. W. 770, the court held:

“It is well settled that a mortgagee or lien-holder may sue for a conversion of the mortgaged property or for a trespass upon it.”

Again, in the case of Scaling v. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715, the court said:

“Under the rule in this state, a mortgagee may maintain an action against one who wrongfully converts the mortgaged property, or a part thereof; and this, too, whether at the time he is entitled to the possession of the same or not. The action is an equitable one, but the mortgagee has shown his damages when he establishes that the defendant has deprived him of his right to a foreclosure and sale of the security for the satisfaction of his debt, and is entitled to recover compensation of such party, measured by the amount of his debt, if that be less than the value of the security lost.”

Several authorities are cited to sustain the holding of the court. In the case of Ward v. Gibbs, 10 Tex. Civ. App. 287, 30 S. W. 1125, it was held that the landlord could sue for conversion of property raised on his farm, without making the tenant a party. To the same effect is Oswald v. Giles, 178 S. W. 677, and Rector v. Mill Co., 103 S. W. 710. The authorities cited by appellant are not applicable to the state of facts disclosed by this record.

Appellee did not sue appellant on a contract, but on a tort, and consequently the contention about suing in one court on an implied contract and in another on an express contract has no force or merit. The horses, when placed in the pasture, were still in the possession of appellee, and they were taken from his possession, through the procurement of appellant, over his protest.

There is no merit in any of the assignments of error, and the judgment is affirmed.
      {g^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURX, J.

text:
    LANDON v. FOSTER DRUG CO. et al.
    (No. 7526.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.
    Rehearing Denied June 3, 1916.)
    1. Bills and Notes <&wkey;373 — Rights of Innocent PUECHASER — FRAUD.
    Where plaintiff secured a promissory note before maturity and without notice of any defense or defect, giving a valuable consideration therefor, he was entitled to recover from the maker, who, while admitting his signature, claimed fraud in procuring the execution of the note, and in detaching it from a written contract of which it formed a part; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 582, providing that one who so obtains a negotiable instrument can be compelled to allow only just discounts against himself.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. <®=^ 373.]
    2. Bills and Notes &wkey;378 — Actions—Defenses — Innocent Purchasers.
    The rule that the maker of a note, secured by fraud, should suffer rather than an innocent purchaser, protects the latter, where the payee or junior assignee filled in the date, which had been left blank, even if it resulted in materially changing the maker’s liability.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 985-992; Dec. Dig. <&wkey; 378.]
    3. Bills and Notes <§=360 — Execution — Date — Presumptions.
    Where the date of a promissory note is left blank by the maker, the presumption is that any holder has implied authority to insert the true date.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 85-94; Dec. Dig. &wkey;60.]
    Appeal from Kaufman County Court; James A. C'ooley, Judge.
    Action by A. C. Landon against the Foster Drug Company and J. J. Foster. Judgment for defendants, and plaintiff appeals.
    Reversed, and judgment rendered for plaintiff.
    Woods & Morrow, of Kaufman, for appellant. H. W. Jones, of Mabank, for appellees.
   RASBURX, J.

Appellant sued appellees in the justice court of Kaufman county upon a promissory note for $200, executed by ap-pellees and payable to Ozark Sales Company, or order, and owned by appellant at the time suit was commenced. In that court judgment was for appellees. The case was re* moved to the county court, where appellees defended on the ground that the execution of the note was procured by the fraud of the agent of the Ozark Sales Company, of which appellant had notice at the time he purchased same. There was trial by jury, to whom the court referred certain special issues of fact, upon the answers to which judgment was again rendered for appellees. From that judgment this appeal is prosecuted.

The facts in reference to the execution of the note, and upon which the findings of the jury and the consequent judgment of the court are based, are without contradiction, and are in substance as follows: Appellees, at and prior to the execution of the note, were in the drug business at Mabank. One Ben E. Upton, representing the Ozark Sales Company, induced appellees to execute a combined contract and note. By the provisions of the contract appellees agreed to purchase 500 fountain pens and pay therefor $200, and were to receive with the pens a piano, which was to he given away in a prize contest, presumably to appellees’ customers. According to the plan of the agent, after the pens were sold and the $200 note paid, appel-lees were to receive also a Ford automobile. Appellee Foster distrusted the bona tides of the plan, but was induced to sign the contract and note, after being furnished the names of a number of reliable merchants, some in his locality, who it was falsely represented had made similar contracts, and to whom the agent referred. The fountain pens arrived at Mabank (but not the piano), which appellees declined to accept, because the scheme on investigation was found to be fraudulent. The pens were refused by appel-lees, and were by the carrier returned to Ozark Sales Company. The document signed by appellees, as we have said, was a combined contract and promissory note, being about 12 inches in length. Across the document where the contract ended and the note commenced was a line of perforations. The note was detached from the contract after ap-pellees signed same, although it does not appear by whom, without appellee Foster’s consent or knowledge, and he would not have executed the same, had he known the note was to be detached from the contract. The note, so detached, was for the principal sum of $200, payable to Ozark Sales Company or order in three installments, as follows: Fifty dollars in 30 days from date, and $75 in 60 and 00 days, respectively, from date — and provided that failure to pay any installment when due should mature all unpaid installments. The note was without date when signed by appellee and delivered to the agent of the Ozark Sales Company. Appellant, A. C. Landon, purchased the note from Vernon Advertising Company May 28, 1914, paying its face value less a discount of 12% per cent. When he acquired it, it was not attached to the contract, and was dated May 5, 1914. Appellant had no knowledge that the contract had been detached, or that the date had been filled in after appellees signed same, or that the consideration for which the note was given had failed. Appellant was a note broker, and was induced to purchase the note sued on by a special report of the Bradstreet Agency, signed by ajjpel-lees, showing appellees’ credit to be good. The indorsements on the note were: One waiving demand for payment, protest, etc., signed Ozark Sales Company, by A. J. Boat-right; and one by Vernon Advertising Company, signed also by A. J. Boatright.

Upon conclusion of the evidence, and in the manner and at the time provided by our practice acts, counsel for appellant requested the court to peremptorily direct the jury to return verdict for appellant. This the court refused to do, and, bottomed on such refusal, the contention is made that the court erred, for the reason that the evidence shows without contradiction that appellant obtained the note sued on before maturity, giving for it a valuable consideration, and without notice of any defense against it. We conclude the peremptory instruction should have been given. By article 582, Vernon’s Sayles’ Stats., one who obtains a negotiable instrument before maturity, giving for it a valuable consideration, and who is without notice of any defense against it, shall be compelled to allow only the just discounts against himself. From a fair and impartial consideration of the evidence adduced, and which we have stated, it is clear that the agent did secure the execution of the note by fraud, and that the appellant, Landon, did acquire same before maturity for value without notice of the fraud. While fraud in securing the execution of the note is a good defense as between the original parties, as it is also as to an assignee or third person with' notice, yet in the absence of such notice as against an assignee or third person acquiring it in the manner stated it is no defense at all. The rule is well settled and has been stated in many ways. A recent authority states the rule thus:

“To assure credit and circulation of bills of exchange as a species of useful currency, the law merchant in most cases forbids a party to such bills, when sued.by a bona fide holder for a valuable consideration without notice, to plead fraud, as between himself and the party with whom he contracted, as a defense. It is a general and just rule, that when a loss has happened which must fall on one of two innocent persons, it shall be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the misfortune. Upon examination, it will be found that this rule or maxim is mainly confined to eases where the party who is made to suffer the loss has reposed a confidence in the third person whose acts have occasioned the loss, or in some other intermediate person, whose acts or negligence have enabled such third person to occasion the loss, and that the party has been held responsible for the acts of those in whom he had trusted, upon grounds analogous to those which govern the relation of principal and agent; that the party thus reposing confidence in another, with respect to transactions by which the rights of others may be affected, has, as to the person thus to be affected, constituted the third person his agent in some sense, and having held him out as such, or trusted him with papers or indicia of ownership which have enabled him to appear to others as principal, as owner, or as possessed of certain powers, the person reposing this confidence is, as to those who have been deceived into- parting with property or incurring obligations on the faith of such appearances, to be held to the same extent as if the fact had accorded with such appearance. The reason is obvious. The maker ought rather to suffer, on account of the fraudulent act of one to whom he intrusts his papel-, or who is made his agent in respect of it, than an innocent party. The law esteems him in fault in thus putting it in the power of another to perpetrate the fraud, and requires him to bear the loss consequent upon his negligence.” 3 R. C. L. 999, 1000.

The application of the rule under the facts in the instant case is as obvious as the reason of the rule. Appellees made possible the perpetration of the fraud by placing in the hands of the Ozark Sales Company an instrument which in form and essential provisions constituted a negotiable promissory note, and which the evidence without contradiction shows was acquired by appellant before maturity, for value, without notice of any defense to or infirmity in the same, and •while it is unfortunate that the one most culpable may not be made to repair the loss and injury as between the innocent, yet as between the latter appellee is the one who is most chargeable with the result and must accordingly be held liable therefor. Another and eminent authority states the rule we have quoted in other b.ut similar language. 8 Cyc. 38. And the rule is sustained by the decisions 'of our own state. Petri & Bro. v. First Nat. Bank, 83 Tex. 424, 18 S. W. 752, 29 Am. St. Rep. 657; Blaisdell v. Citizens Nat. Bank, 96 Tex. 626, 75 S. W. 292, 62 L. R. A. 968, 97 Am. St. Rep. 944; First Nat. Bank v. Nigro & Co. et al., 110 S. W. 536; Garlitz v. Runnels County Nat. Bank, 152 S. W. 1151, and cases cited.

The rule we have stated would also protect an assignee against the fraud of the original payee or any junior assignee in filling in the date of the instrument, as was done in the instant case, by some one other than appellant, in the event it resulted in a material change of the payor’s liability. However, the presumption is that, when the date of a negotiable or other instrument is left blank, any holder has the implied authority to insert the true date. Farmers’, etc., Nt. Bk. v. Novich, 89 Tex. 381, 34 S. W. 914; 1 R. C. L. 1025; 2 C. J. 1242, 1243; 2 Cyc. 163. The rule is broader than we have stated it; but, since there is no contention that the date in the note in controversy is not the true date, a statement of the rule in its broader application will serve no good purpose.

Being of opinion that the rules stated con-. trol the disposition of the appeal, all other issues become immaterial; and feeling, also, that the facts are fully developed, we conceive it to be our duty to reverse the judgment of the lower court, and here render judgment for appellant, which is accordingly directed.
      <§=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    RAINES v. WESTERN UNION TELEGRAPH CO.
    (No. 1026.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 10, 1916.)
    Appeal and Error &wkey;>627 (3) — Affirmance on Certificate — Dismissal of Second Record — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1611, touching proceedings in the Courts of Civil Appeals after affirmance of a judgment on certificate, where plaintiff in error, upon new citation and writ of error bond, preceded the defendant in error one day, in filing the new record, before the motion to affirm on certificate, accompanied by defendant in error’s record, but did not present any reason why the statutory right of affirmance on certificate should be denied, nor why, after the original citation in error was served and bond filed, the record was not presented in due time, and without any reason presented, against motion to dismiss, why the previous affirmance on certificate should be set aside, and without presenting any excuse for the previous delay upon the old record, defendant in error’s motion to dismiss, for identity of the record with that affirmed on certificate, will be granted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2744-2747, 2749; Dec. Dig. &wkey;627(3).]
    Error from District Court, Sherman County; D. B. Hill, Judge.
    Action by Mrs. A. J. Raines against the Western Union Telegraph Company. To review judgment for plaintiff, she brings error. On motion to dismiss.
    Cause ordered dis-. missed.
    Tatum & Tatum and Clifford Braly, all of Dalhart, for plaintiff in error. Jno. W. Veale, of Amarillo, for defendant in error.
   HENDRICKS, J.

The motion of the defendant in error to dismiss the petition in error in this case presents this condition of the record: The plaintiff in error Raines recovered a judgment against the defendant in error, for the sum of $1, with costs. Citation in error was issued and served, and writ of error bond properly filed, at which time, of course, the jurisdiction of this court attached. Plaintiff in error did not present, and have filed, the record in this court within the time prescribed by the statute, and the defendant in error presented a motion to affirm on certificate, which was not resisted, and which was promptly granted by this court. The motion to affirm was presented in cause No. 1027, on the docket of this court. In the cause in the district court, plaintiff in error caused) the issuance and service .of another citation in error, and filed another bond for writ of error, subsequent to the proceedings mentioned, and caused to be filed in this court another record, identical, however, with the previous record (except that it contains assignments) as presented by the defendant in error on his motion to affirm, which second record was filed in this court one day-previous to the filing of the first record, accompanying defendants motion to affirm, and is docketed as No. 1026. In this latter cause, 1026, the defendant in error submits a motion, alleging the identity of the two records, and calling the attention of this court to the affirmance on certificate, previously ordered by this court, and no resistance is made by the plaintiff in error to said motion to dismiss. Article 1611, Vernon’s Sayles’ Civil Statutes, provides that in cases where the Courts of Civil Appeals shall have affirmed a judgment on certificate, said courts may, at any time within 15 days after such affirmance, permit the transcript to be filed by the appellant or plaintiff in error, and the case to be tried on its merits—

“provided that appellant or plaintiff in error shall show to the court good cause why the transcript was not filed by him in accordance with the provisions of art. 1608, and shall also show to said court that he has given the appellee or defendant in error notice of his intentions to apply for such permission to file said transcript,” etc.

Literally, of course, the statute does not embrace the actual condition presented; however, in its spirit, it presents a rule applicable to the condition here. Plaintiff in error, it is true, upon his new' citation and writ of error bond, beat the defendant in error one day in filing the new record before the motion to affirm on certificate, accompanied by defendant in error’s record; but, without any presentation whatever to this court, of any reason why the statutory right of affirmance on certificate should have been denied, nor why, after the original citation in error was served, and writ of error bond was filed, the record was not presented in this court in due time, and without any- reason presented against this present motion to dismiss why the previous affirmance on certificate should be set aside, and without presenting any excuse for the previous delay upon the old record.

The case of Hurley v. Lester, 32- S. W. 555, in its essentials, as to the condition presented, is identical, except the procedure is different, and it was concluded that the showing of diligence was wholly insufficient, and that a judgment on the first writ of error bond could not be prevented by suing out a second writ and entering a transcript thereunder.

The Supreme Court cases (Scottish Union Ins. Co. v. Clancey, 91 Tex. 467, 44 S. W. 483, Perez v. Garza, 52 Tex. 571, and Davidson v. Ikard, 86 Tex. 68, 23 S. W. 379) are very persuasive in favor of our conclusion on this motion, if not decisive.

The motion to dismiss in cause No. 1026 is granted, and the cause ordered dismissed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes