author: RICE, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HUMPHRIES et al.
    (Court of Civil Appeals of Texas. Austin.
    April 23, 1913.
    Rehearing Denied May 28, 1913.)
    1. Carriers (§ 381) — Transportation op Passengers — Ejection — Wrong Train — Evidence — Custom.
    Where plaintiff was ejected from defendant’s train because her transportation read over another road, and she claimed to have been directed to defendant’s train both by the gateman at the union station and by defendant’s brakeman as she boarded the train, evidence that it was customary for defendant’s brakeman at the union station, before permitting passengers to enter its train, to inspect their tickets to ascertain whether they were entitled to ride thereon was admissible.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. § 381.]
    2. Contribution (§ 5) — Joint Wrongdoers.
    Defendant used a union depot at F. owned by the T. railroad company which provided and controlled the employes, including gatemen. Plaintiff having purchased a ticket over another road was permitted to board defendant’s train through the negligence of the gateman and defendant’s brakeman in omitting to examine her transportation before permitting her to get aboard, and, after the train had started, she was ejected in an improper place and manner. Held that, since defendant’s brakeman was negligent, and defendant was further negligent in ejecting plaintiff, it was the principal wrongdoer and was therefore not entitled to recover contribution against the T. railroad company, under the rule that there is no right of contribution between tort-feasors, especially where both parties are in the wrong, or the act of the one seeking contribution was the proximate cause of the injury.
    [Ed. Note. — For other cases, see Contribution, Cent. Dig. §§ 6-9; Dec. Dig. § 5.]

      3. CARRIERS (§ 356) — Transportation oe Passengers — Union Depot — Gatemen — Agency.
    Where a railroad company operates a union depot and employs gatemen who serve various railroads using the depot, the gatemen, so far as the general public is concerned, are the agents of all the railroads using the depot.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423-1432; Dec. Dig. § 356.]
    4. Carriers (§ 356) — Passengers — Person on Wrong Train.
    Where plaintiff was directed to board defendant’s train, though her ticket called for another road, through the negligence of a union depot gateman and the brakeman of defendant’s train, she was a passenger thereon, though she had no ticket over defendant’s road and paid no fare, and hence defendant in causing her to leave the train was bound to use with reference to her the high degree of care which it is bound to exercise toward passengers.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423-1432; Dec. Dig. § 356.]
    Appeal from District Court, McLennan County; J. N. Gallagher, Special Judge.
    Action by Mrs. Marian Humphries and others against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Alex S. Coke, of Dallas, and Spell & Sanford, of Waco, for appellant. W. L. Eason, of Waco, for appellees.

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

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

   RICE, J.

Mrs. Humphries, joined pro forma by her husband, brought this suit against appellant and the Texas & Pacific Railway Company to recover damages for having been unlawfully ejected from the train of the former on the 29th of October, 1909, alleging that she and her mother purchased tickets at Higginson, Ark., on the 27th of October, via Ft. Worth, Tex., over the I. & G. N. Railroad to Waco; that appellant, together with the Texas & Pacific Railway and other railroad companies, maintained at said time a union depot at Ft. Worth, where they had passenger facilities in common, among other things operating a gate system, employing a gateman, whose duty it was to open the gate upon arrival and departure of trains and direct passengers to their respective cars; that plaintiff and her mother traveled on said tickets without incident to Ft. Worth but upon arrival there she was on account of the negligence of said gateman and the brakeman of appellant misdirected by them, and thereby caused to take the train of the latter company for Waco, instead of the I. & G. N. Railway Company, over which she had transportation; that the auditor of appellant, after she and her mother had traveled some two miles from the city upon appellant’s train, rudely ejected them therefrom, whereby they were compelled to carry their luggage and walk back to said depot, where, after remaining all day, she took the night train of the I. & G. N. for Waco; alleging that she was greatly humiliated, suffered anxiety and pain, and .made sick by reason thereof.

After a general demurrer and general denial, appellant expressly denied the acts of negligence complained of, both in the matter of causing the plaintiff to enter the wrong train and in the matter of causing her to disembark therefrom; and likewise pleaded that she was guilty of contributory negligence in boarding said train, as well as returning to said station. Appellant also pleaded that said Ft. Worth depot was owned' by the Texas & Pacific Railway Company, and that it and other companies used the same under a contract with said Texas & Pacific Company, whereby the latter company retained exclusive control and management of the employes in said station, as well as the right to establish rules and regulations governing their conduct, and that said gate-man was an employ® of said Texas & Pacific Company, and that if it should be found that plaintiff was induced to board the wrong train by reason of the negligence of said gateman, then appellant, in the event judgment was rendered against it, prayed judgment over against the Texas & Pacific Railway Company for like amount.

The defendant Texas & Pacific Railway Company, answering, adopted the general demurrer and general denial and plea of contributory negligence of appellant; and further denied its liability to appellant under the alleged agreement to use its depot on account of any act of negligence of said gate-man, and pleaded that if appellee entered the wrong train, it was owing to the negligence of appellant’s brakeman.

There was a jury trial, resulting in a verdict and judgment in behalf of appellee against appellant for the sum of $100, but the court instructed a verdict in behalf of the Texas & Pacific Company, from which judgment appellant prosecutes this appeal.

The evidence shows that Mrs. Humphries and mother reached Ft. Worth on the night of the 28th of October, and early the next morning went to the union depot, where she inquired of the ticket agent as to when her train left for Waco, and he referred her to the gateman for information. She then went to him and told him that she wanted to go to Waco that morning, and wanted him to put her on the right train. .He informed her that the train was late, but that upon its arrival he would do so. Later on she stated that she went to the gate to pass out, having her ticket in her hand, and asked.the gate-man what train she should take. He declined to look at her ticket when offered, stating that it was unnecessary for him to do so, but directed her to board the train of appellant. ■ Still having her ticket In her hand, she approached the brakeman at the entrance, who likewise did not examine her ticket, and asked if that was the Waco train, and receiving an affirmative reply, she and her mother boarded the train; that 'soon thereafter the train started, and when out about two miles from the depot, the auditor came around to take up tickets. After looking at the tickets, he stated: “You are on the wrong train.” “Whereupon I said, ‘X don’t see why I should be on the wrong train, when the gateman told me'to get on it.’ He reached up, pulled the bell twice and stopped. He said, ‘You get off this train; you are on the wrong train.’ Picking up my satchel and throwing it as far as he could towards the door, he then came back and jerked me up by the arm, saying that he had no time to wait, and compelled me to get off the train.” She and her mother after disembarking, after considerable delay and anxiety, found their way back to the station. The conductor refused, upon her request, to take her back to the depot or on to the next station. She did not have sufficient money with which to pay her way on to Waco. By reason of all that occurred she was made sick, etc.

During the progress of the trial two witnesses on behalf of the Texas & Pacific Railway Company were permitted, over appellant’s objection, to testify that it was customary .for appellant’s firakeman at said union depot, before permitting passengers to enter its trains, to inspect their tickets, for the purpose of ascertaining whether they were entitled to ride thereon. Appellant by its first and second assignments insists that the admission of this testimony was error on the ground that it was immaterial and irrel-' evant to any issue in the case. We think the objection was not well taken and was properly overruled.

By 'the third and fourth assignments appellant urges that the court erred in peremptorily instructing a verdict in behalf of the Texas & Pacific, insisting that the court should have submitted to the jury the issue as to appellant’s right to recover against said Texas & Pacific on its plea for contribution as between said two companies. We differ with appellant in this contention. The general rule seems to be that there is no right of contribution between tort-feasors. There is an exception, however, to this rule: Where -the .party seeking recovery against the other joint t’ort-feasor is not in the wrong, or only passively so, it is- held that he may recover. This principle, however, is never applicable where both parties are' in the wrong, or where the act of the one seeking the recovery was the proximate cause of the injury. See Railway v. Railway, 83 Tex. 509, 18 S. W. 956; M., K. & T. Ry. Co. v. Vance, 41 S. W. 167; Houston & Texas Central Railroad Co. v. Williams, 31 S. W. 556; Ry. v. Ry., 47 Tex. Civ. App. 304, 105 S. W. 829. In the present case it clearly appears that appellant’s' brakeman was guilty of negligence in not examining the ticket when ap-pellee was boarding the train. It seems that it was ordinarily his custom to do so. The slightest examination would have shown him that she was about to board the wrong train. Besides, appellant was further guilty of negligence in ejecting appellee from the train. In these respects it was the principal wrongdoer; and certainly, under no rule of law, could it be entitled to recover contribution over against its codefendant even if it were granted that it was likewise guilty of negligence in causing appellee to board said train.

But we are inclined to believe in this ease, under the evidence, that so far as the general public was concerned, the gateman was the agent of appellant as well as of the Texas & Pacific Railway Company, and that appellant was responsible for his negligence. It is true that the evidence shows that he was employed by the former company, and under its control; but it is also shown that appellant was entitled to his services, and that it was his duty to attend said gate, and direct passengers to their respective trains. He was therefore held out to the public by appellant as its agent in this respect, whereby appellant was responsible for Ms acts of negligence, if any, for which reason we think the court did not err in instructing a verdict in behalf of the Texas & Pacific Railway Company on said issue.

The fifth assignment complains that the court erred in instructing the jury that it was the duty of the employé of appellant, in causing plaintiff to disembark from its train, to use a very high degree of care and to cause her to disembark at such place as a very cautious or prudent person would choose, under the same or similar circumstances; insisting that it thereby placed upon appellant a greater burden in this respect than was imposed by law, in that he was only required to exercise ordinary care in causing her to disembark, etc. This charge was predicated upon the theory that appellee, at the time that 'she was ejected, was a passenger upon said train. We think this theory is correct. Appellee occupied the position of a passenger, notwithstanding the fact thatvShe had no ticket over appellant’s road at the time. She had taken the wrong train, it is true, but this was through no fault of hers, but was occasioned by the wrongful act and conduct of appellant’s servants. This being true, she occupied towards said company the attitude of a passenger, and it was required to exercise that very high degree of care towards her that the law requires common carriers to exercise towards their passengers. See I. & G. N. Ry. Co. v. Gilbert, 64 Tex. 536; Railway v. Smith (Sup.) 1 S. W. 566; Railway v. Rather, 3 Tex. Civ. App. 72, 21 S. W. 957; Gary v. Railway, 17 Tex. Civ. App. 129, 42 S. W. 577; Railway v. Powell, 40 Ind. 37.

Finding no error in tlie record, the judgment of the court below is affirmed.

Affirmed.


source: Caselaw Access Project

author: JENKINS, J. -

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. JACKSON.
    (Court of Civil Appeals of Texas. Austin.
    April 30, 1913.
    Rehearing Denied May 28, 1913.)
    Appeal from District Court, McLennan County; J. N. Gallagher, Special Judge.
    Action by Mrs. P. C. Jackson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Alex S. Coke, of Dallas, and Spell & Sanford, of Waco, for appellant. Baker, Neff & Taylor and W. L. Eason, all of Waco, for appellee.
   JENKINS, J. -

This is a companion ease to M., K. & T. Ry. Co. of Texas v. Mrs. Marian Humphries, the daughter of appellee, in which this court handed down an opinion at its last sitting. 157 S. W. 1174. For the reasons set forth in said opinion, the judgment of the trial court in this case is affirmed.

Affirmed.


author: HIGGINS, J.

text:
    CHAMBERS v. GRISHAM et ux.
    (Court of Civil Appeals of Texas. El Paso.
    May 29, 1913.
    Rehearing Denied June 26, 1913.)
    Exchange of Property (§ 5)— Rescission-Restoration op Status Quo.
    In an action to rescind a contract for the exchange of property on the ground of fraud, where it appears that the plaintiff had permitted the foreclosure of the lien for notes, which he agreed to pay, against part of the land received by him, and cannot restore the status quo, it was proper for the court to give a peremptory instruction for the defendant
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §•§ 5, 6, 8-10; Dec. Dig. § 5.]
    Error from District Court, Martin County; James L. Shepherd, Judge.
    Action by J. C. Chambers against M. A. Grisham and wife. Judgment for the defendants, and plaintiff brings error.
    Affirmed.
    See, also, 155 S. W. 959.
    Theodore Mack, of Ft. Worth, A. L. Green, of Stanton, A. H. Kirby, of Abilene, and Jno. B. Howard, of Midland, for plaintiff in error. R. N. Grisham, of Sweetwater, and Stephens & Miller, of Ft. Worth, for defendants in error.

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

   HIGGINS, J.

Chambers was the owner of eight sections of state free school land situate in El Paso county and conveyed same to Josephine R. Grisham, wife of M. A. Gris-ham, in consideration of certain premises situate in Martin and Howard counties being conveyed to him by said M. A. Grisham. The deed from Chambers to Mrs. Grisham was filed in the General Land Office, together with substitute obligations of herself and husband covering the purchase money due the state, and she was substituted as the purchaser from the state. She and her husband completed the three years’ occupancy of the school land, as required by law, and made valuable improvements thereon. Thereafter Chambers filed suit for rescission, alleging as a ground therefor false and fraudulent representations made by M. A. Grisham respecting the property which he had conveyed to Chambers, and this issue of fraud was clearly raised by the evidence, but upon trial a peremptory instruction was given in favor of defendants in error, in accordance with which verdict was returned and judgment rendered. The west 160 acres of section 30 in Howard county was one of the tracts so conveyed to Chambers, and in the exchange of the lands Chambers assumed and agreed to pay certain notes which constituted liens thereon; the deed of conveyance so stipulating. Chambers failed to pay these notes, and the lien securing same was foreclosed and the premises conveyed to one Brooks prior to the institution of this suit.

It is the general rule that, when a contract is sought to be rescinded by one of the parties thereto, he must place the other in statu quo. Chambers by suffering the foreclosure and sale above indicated could not return to Grisham the 160 acres out of section 30, and this would preclude him from obtaining a rescission of the exchange of lands which he had made. None of the exceptions to the general rule above indicated apply here, and if Chambers desired to avail himself of his right of rescission it was his duty to protect the title to the premises which he had received so that he could return the same to Grisham. Through his own fault, it was impossible to restore the status quo, and the court properly instructed against him.

Various other reasons are urged in support of the action of the trial court, but they will not be discussed, since we deem the views indicated above to be decisive of the question.

Affirmed.


author: CONNER, C. J.

text:
    ABILENE & S. RY. CO. v. BURLESON.
    (Court of Civil Appeals of Texas. Ft. Worth.
    January 18, 1913.)
    1. Witnesses ' (§ 345) — Impeachment—Proof 'of Indictment for Misdemeanors.
    A witness in a civil action may not be impeached by proof that he has been indicted for misdemeanors.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    2. Witnesses (§ 350) — Party to Civil Suit as Witness — Impeachment.
    Under Rev. Civ. St. 1911, art. 3688, providing that no person shall be incompetent to testify because he is a party to the suit, and article 3647, providing that either party may examine the opposing party as a witness, but the examination must be conducted under the rules applicable to other witnesses, a party to a civil suit who testified in his own behalf may not be impeached by proof that he has been indicted for misdemeanors.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    3. Carriers (§ 316) — Injuries to Passengers— Actions — Burden of Proof.
    The burden of proof on the whole case resting on a passenger suing for injuries by the derailment of the train never shifts, though proof of an accident to the train and injury to the passenger creates a presumption of fact against the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §8 1261, 1262, 1283, 1285-1294; Dec. Dig. § 316.]
    4. -Teiai. (§ 194) — Instructions—Comment on Weight oe Evidence.
    A charge in an action for injuries to a passenger by the derailment of the train that, if the train was derailed, the fact of derailment is prima facie evidence of the carrier’s negligence, is objectionable as a comment on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    5. Trial (§ 253) — Instructions—Ignoring Evidence.
    Where, in an action for injuries to a passenger by the derailment of a train, there was evidence of a reasonable explanation of the derailment, a charge that, if the train was derailed, the burden was on the carrier to show that it was not caused through its negligence, and that the fact of derailment was prima facie evidence of negligence, was erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. § 253.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by R. C. Burleson against the Abilene & Southern Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    D. T. Bomar, of Ft. Worth, and Ben L. Cox, of Abilene, for appellant. Mahaffey & Fulwiler, of Abilene, for appellee.

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

   CONNER, C. J.

This is an appeal from a judgment for $1,200 in the appellee’s favor for personal injuries received in the derailment of a passenger car upon which appellee was a passenger on the 17th day of September, 1911. Appellee alleged that the servants of the defendant railway company were negligent in the manner in which they were running the train at the time of the derailment and negligent in that it permitted its track and switches and equipment to be and remain in a defective and dangerous condition. The defendant answered by a general denial, and specially that the plaintiff was not injured as claimed by him in his petition, but that his action was a fraudulent effort to extort money from the company. The trial was before a jury, and resulted in a judgment as stated.

The evidence on the issue- of whether plaintiff was injured by the derailment of the ear was conflicting, and while the plaintiff was testifying in his own behalf as a witness the defendant sought to show by him on cross-examination, as the bill of exception shows could have been done, that the plaintiff had been indicted in Taylor county in seven different cases, one of which was for theft, another for an assault, another for carrying a pistol, and others for divers and sundry offenses, all of whicn were misdemeanors under the laws of this state. The evidence was offered only as affecting the credibility of the plaintiff as a witness, and as tending to support the theory of the defendant that the bringing and prosecution of the suit was the result of a conspiracy and fraud on the part of the plaintiff to feign and claim an alleged injury that did not occur. The court sustained the plaintiff’s objection that a witness in a civil action could not be thus impeached. While the authorities on the subject are not uniform, we are of the opinion that the court’s ruling was correct. In answering a certificate from this court, the subject received the careful consideration of our Supreme Court in the ease of M., K. & T. Ry. Co. of Texas v. Creason, 101 Tex. 335, 107 S. W. 527, and it was there held after a review of the authorities that a witness in a civil suit in this state could not be so impeached or discredited even on cross-examination. To the same effect is the ruling of the Court of Civil Appeals for the Fifth District, as will be seen by reference to the opinion in the case of Hazard v. Western Commercial Traveler’s Ass’n, 54 Tex. Civ. App. 110, 116 S. W. 625. Also see Wigmore on Evidence, § 982, p. 1110, and 40 Cyc. 2603, 2604. It is urged that this case is to be distinguished from those of our own courts referred to in that in the present case the witness sought to be impeached was a party, and for the further reason that herein the issue of a simulated injury was presented, but we are unable to see that the distinctions pointed out should alter the rule as already established. The statute of this state has removed the common-law incompetency of persons interested in the issue to be tried and of parties to the suit to testify (see Revised Statutes 1911, art. 3688), and at the same time places them upon the same footing as other witnesses. See Revised Statutes 1911, art. 3647, which provides that either party to a suit may examine the opposing party as a witness, but that his examination shall be conducted and his testimony shall be received under the same rules applicable to other witnesses. It' is obvious, we think, that, except as affecting the plaintiff’s credibility as a witness, the offered testimony has no relevancy to the issue of fraud, and we accordingly conclude that appellant’s first assignment of error raising the question, discussed should be overruled.

We are of opinion, however, .that appellant’s eighth and ninth assignments of error must be sustained. Therein complaint is made of the action of the court in giving special charges Nos. 1 and 2 requested by the plaintiff. These charges read as follows:

“(1) You are- instructed that, if you believe that defendant’s train was derailed as alleged, then the burden is on the defendant to show that same was not caused through the negligence of defendant.”
“(2) You are instructed that, if you believe that defendant’s train was derailed as alleged by plaintiff, the fact of'such derailment is prima facie evidence of the negligence of defendant.”

The fact of derailment was undisputed and the charge first quoted plainly shifted the burden of proof on the issue of negligence to the defendant, whereas it is well settled that the burden of proof on the whole case never shifts from the plaintiff, and the second charge quoted was just as plainly a comment upon the weight of the evidence. It assumed as a matter of law that the mere fact of derailment established in the first instance the important issue of the negligence charged. True it has been said that where an accident happens upon a railway from which a passenger sustains an injury by the breaking down of the carriage or by the running off of the train, or by the spreading or breaking of the rails, the very nature of the occurrence will be prima facie evidence of negligence in the company or its servants. See Hutchens on Carriers, 800; Mes. Cent. Ry. Co. v. Lauricella, 87 Tex. 277, 28 S. W. 277, 47 Am. St. Rep. 103. But the presumption spoken of is one of fact, and not of law, and it may be well doubted in the present state of our decisions whether it should be given in charge to the jury. Certainly not where, as in this ease, there is a reasonable explanation of the derailment attempted. See Ft. W. & D. C. Ry. Co. v. Day, 50 Tex. Civ. App. 407, 111 S. W. 663; St. L. S. W. Ry. Co. v. Parks, 97 Tex. 131, 76 S. W. 740; S. A. & A. P. Ry. Co. v. Robinson, 73 Tex. 277, 11 S. W. 327; Tex. Cen. R. R. Co. v. Burnett, 80 Tex. 536, 16 S. W. 320; Western Transportation Co. v. Downer, 78 U. S. (11 Wall.) 129, 20 L. Ed. 160. As clear a statement perhaps as to how the derailment in question occurred is that made by the plaintiff. He testified: “That car (one in which plaintiff was riding) was derailed. I know whether there was a switch near that car. There was a switch near the car, and the front trucks tried to take down the switch and the back trucks tried to hold to the main line, and they went that way a good piece and then jerked from the — they went as far as they could, and then jumped the track to come back to the main line, and then is when I received my injury, when they came back to the main line and hit the railing as well as I remember.” The witness Ira Dorton, who was the conductor in charge of the train, testified that they were just coming into the yards at Abilene running ‘something like six or seven miles an hour, * * * that, if the track was in good condition and everything was in proper repair, of course, there would be less danger of the train running off the track, ‘ but then I have had wrecks when you could not find out what was the cause for them. They just naturally get off the track. When a train running eight miles an hour leaves the track, I don’t know whether there is something wrong either with the rolling stock'or the track, or something out of line. There is liable to be a stick on the track, or a chunk or anything, or something dropped down.” J Behrens, appellant’s master mechanic, testified that he was near the wreck, and in answer to the call of the engineer walked to the switch mentioned in the testimony of the plaintiff, and found the bolt which secures the horizontal rod with which the switch points are moved, displaced, and lying on “one side of the bar, and the nut alongside of it on the same side between four and six inches from the hole where it fits up in there.” He further testified that from his experience as a railroad man he “would say that it is not possible for the bolt and nut to work out of there and both fall on'the same side of the rail; that is, not ordinarily. In the condition in which I found the bolt and the nut I am of the opinion that it was taken out.” Percy Jones, the chief engineer, testified that: “There was nothing the matter with the train. I saw the damage done after the wreck. I inspected the flanges be-for that; then everything was in good repair. I have been a railroad man about nine years. A train running eight miles an hour on a track in good condition is not likely to run off of the track and wreck without cause. If it does run off and wreck, when not running faster than that there is a cause. A defective switch could cause it. . There was not any defect in that switch. There was a defect in the working of the switch by reason of a bolt being out. That bolt belonged between the switch rod and the head rod of the switch. If the bolt had worked out in the use of the switch, the bolt would have been found lying down right by the side of the switch, the bolt on one side and the nut on the other.” J. A. Garrett testified that he was the section foreman in charge of the section of track where the wreck occurred, and that he “last looked at the switch on Friday morning before the wreck occurred on Sunday. It was then in good condition. I noticed the bolt that tied the connecting bar to the switch. I worked right there a little while. The bolt was intact Friday.” Under the circumstances stated, we conclude that the issues of negligence as alleged should have been left to the jury without the influence of the erroneous charges given.

In view of the conclusions above noted, we think it unnecessary to discuss other assignments of error, but for tbe errors of tbe court’s charge it is ordered that the judgment be reversed, and the cause remanded.


author: HODGES, J.

text:
    GRAND TEMPLE & TABERNACLE IN THE STATE OF TEXAS OF THE KNIGHTS & DAUGHTERS OF TABOR OF THE INTERNATIONAL ORDER OF TWELVE v. COUNTS.
    (Court of Civil Appeals of Texas. Texarkana.
    May 15, 1913.
    Rehearing Denied May 29, 1913.)
    1. Appeal and Error (§ 1002) — Review— Conflicting Evidence.
    Determination of the jury on conflicting evidence as to whether a member of a beneficial association was sick all the times that she was in arrears for dues, so that under her contract she could not be suspended, is conclusive on appeal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    2. INSURANCE (§ 750) — Mutual Benefit — Forfeiture — Nonpayment of Dues.
    The constitution and by-laws of the beneficial association providing that a member cannot be suspended for nonpayment of dues while sick, it is immaterial that during her sickness she had stated that she knew she was in ar-rea'rs, that she did not intend to pay any dues, and did not wish to keep up the insurance.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1895-, 1896, 1903; Dec. Dig. § 750.]
    Appeal from Titus County Court; Sam Porter, Judge.
    Action by Sonk Counts against the Grand Temple & Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve. Judgment for plaintiff. Defendant appeals.
    Affirmed.
    Ward & Ward and Rolston & Rolston, all of Mt. Pleasant, for appellant. J. M. Bur-ford, of Mt. Pleasant, for appellee.

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

   HODGES, J.

This is a suit by the ap-pellee on the certificate of insurance issued by the appellant to his wife, in which he is named as the beneficiary. Appellant is a mutual benefit association doing business in this state through grand and subordinate lodges in the usual manner common to such organizations. The pivotal question involved in this appeal is: Was the deceased in good standing at the time of her death? She died in September, 1910, and had paid no dues to her local lodge since the preceding October. The constitution of the order contains this provision: “A member cannot be suspended for nonpayment of dues during the time he is sick so as to prevent him from pursuing his avocation.” The by-laws contain this further provision: “Members cannot be suspended for monthly dues during the time they are sick. Their dues must be paid out of their weekly benefits.” The testimony showed that the sick benefits allowed by the lodge to which the deceased belonged amounted to $2 per week. According to the testimony of appellee, his wife was sick continuously from some time prior to November, 1909, till the date of her death, and during that time she was unable to perform the duties incident to her avocation. I-Ie is in part corroborated by other witnesses, but is contradicted on material points by those introduced by the appellant. The doctor who attended the deceased testified that she died of tuberculosis, but he was unable to say how long she had been suffering from that disease.' The determination of this conflict in the evidence by the jury in the present state of the record is binding upon this court. We cannot say as a matter of law that the finding upon this issue is unsupported.

It is urged by the appellant that the trial court should have permitted the introduction of testimony as to declarations made by the deceased a short time before her death, in which she stated that she knew she was in arrears, that she did not intend to pay any more dues, and did not wish to keep up the policy of insurance. Testimony to this effect was offered by the appellant, and excluded. It is contended that this evidence was admissible for the purpose of showing that the insured was aware of the fact that she was behind with her dues, liable to suspension, and had waived any official notice. All of these facts are in effect conceded, and there was no necessity for the introduction of this evidence for the purpose of proving them.. Accepting those facts as true, they present no new defense to this suit. The conditions of the policy and the provisions of the constitution and by-laws of the order constituted the terms df the contract between the insured and the company; and the rights of the beneficiary and the standing of the dee' ied must be determined by those provisions. If the deceased was sick continuously from a time prior to the date when she became subject to suspension till her death, she could not be suspended, and was legally in good standing when she died.

The judgment is affirmed.


author: TALIAFERRO, J.

text:
    HARPER v. MARTIN.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.
    Rehearing Denied June 25, 1913.)
    Escrows (§ 9*) — Agreement—Deposit—Petition.
    Plaintiff sold land to defendant the title to which was clouded by liens, and an agreement was made that plaintiff should deposit $500 in a bank as a guaranty of performance of an agreement to obtain releases. If they were not obtained within 90 days, “defendant was authorized” to sue to remove the clouds on the title and to pay costs and attorney’s fees out of the deposit, the taxes for 1909 to be prorated and plaintiff’s portion paid out of such deposit “before delivering the remainder to him.” Held, that a petition alleging that two of the releases were obtained,_ but defendant failed and refused, to bring suit to remove the cloud from the title, and that, instead of depositing money in the bank,, plaintiff had deposited defendant’s check with the escrow agreement, which check was a part of the consideration of the land, alleged sufficient facts to entitle plaintiff to recover the balance due on the check.
    [Ed. Note. — For other cases, see Escrows, Cent. Dig. § 11; Dec. Dig. § 9.*]
    Appeal from Uvalde County Court; J. F. Robinson, Judge.
    Action by A. B. Harper against H. G. Martin. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    W. D. Love, of Uvalde, for appellant. L. Aid, L. E. Lamier, and Martin & Martin, all of Uvalde, for appellee.
   TALIAFERRO, J.

This suit was to recover money deposited upon an escrow contract. Appellant sold certain land to appel-lee, the title to which was clouded by liens. Appellee required appellant to obtain three releases in closing the transaction. An agreement was made that appellant should deposit with the Uvalde National Bank $500 as a guarantee of the faithful performance of his agreement to obtain the releases. In event they were not obtained within 90 days, appellee was “authorized” to bring suit to remove the clouds upon the .title to the land, and to pay costs and attorney’s fees incurred in such suit out of the $500 deposit. The taxes for 1909 on the land were to be prorated, and appellant’s portion paid out of the $500 deposit “before delivering the remainder” to him. Only two of the releases were obtained, and appellee failed or refused to bring the suit to remove the cloud from the title. It seems that, instead of depositing money in the bank, appellant deposited a check of appellee with the escrow agreement. The contract does not show why this was done, though appellant’s petition alleges the reason from which we must reach the conclusion that the $500 check of appellee so deposited was a part of the consideration for the land. Appellant sued to recover upon the check and contract as written obligations of appellee, and the court sustained a general demurrer to his petition.

The only question before the court is whether or not the petition was good as against a general demurrer. We think it was. Against a general demurrer, every reasonable intendment must be indulged in favor of the pleading. In suing upon the written instruments, by proper pleading, appellant should have set out copies of the instruments, or stated their contents, and then alleged the legal effect of each. Instead of doing so, he declared upon the contracts in such a manner as to make the allegations of the petition appear as a contradiction of the terms of the written documents, which were attached to the petition as exhibits. It is evident from the petition that the plaintiff’s intention was not to attempt to alter the terms of the written contract by parol but to declare upon his construction of the contract itself, and the court, upon general demurrer, should have taken the allegations in the petition as a declaration of the legal effect of the written instruments attached, and have given the petition the effect most favorable to the pleader. The general demurrer is not directed at imperfect or defective pleading, but at the total failure of the party, upon any reasonable construction of the pleading, to allege a cause of action or defense. That the contract in this case is susceptible of more than one construction is most apparent, and appellant was entitled, to have the jury or the court pass upon his construction of its terms. It is evident from the terms of the contract that whatever remained of the $500 deposit, if any, after payment of the expenses and taxes named therein should be “delivered” to appellant. If there were no expenses or taxes charged against it, he was entitled to the whole.

In view of another trial upon pleadings as they should, and probably will, be amended, it is not necessary for us to pass upon appellee’s cross-assignments of error, all of which are directed at the rulings of the court upon his special exceptions.

The judgment of the lower court is reversed, and the cause remanded.


author: RAINEY, C. J.

text:
    PETERS v. RICE et al.
    (Court of Civil Appeals of Texas. Dallas.
    May 31, 1913.
    Rehearing Denied June 21, 1913.)
    1. Deeds (§ 128) — Estates Created — Application- of Rule in Shelley’s Case.
    Where a deed conveyed land to a person for her natural life, with remainder to the heirs of her body and a limitation over in default of issue under the rule in Shelley’s Case, she took a fee-simple title absolutely in the land.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 413-415, 419-421, 427; Dec. Dig. § 128.]
    2. Execution (§ 251) — Sales—Opening or Vacating — Grounds.
    A sale under execution will be set aside for slight irregularities where gross inadequacy in price is shown.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. ■§§ 708-716; Dec. Dig. § 251.]
    3. Execution (§ 251) — Sales—Opening or Vacating — Grounds.
    Under Rev. Civ. St. 1911, art. 3753, providing that, where property situated in a town or city taken in execution consists of lots, tracts, or parcels, each shall be offered separately unless they are not susceptible of a separate sale by' reason of the character of the improvements thereon, where there were erected on property worth $12,000 or $15,000 five cottages occupied by separate tenants, tbe character of the improvements, instead of rendering it incapable of a separate sale, tended to divide the land into separate lots, and its sale as a whole was such an irregularity as avoided a sale for the grossly inadequate price of $40.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. •§§ 708-716; Dec. Dig. § 251.]
    Appeal from District Court, Dallas County ; Kenneth Force, Judge.
    Action by Mrs. Alice Rice and another against George F. Peters. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Carden, Starling, Carden & Hemphill, Ed. Sewell, and Geo. O. Wallace, all of Dallas, for appellant. M. L. Dye, of Dallas, for ap-pellees.

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

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

   RAINEY, C. J.

This suit was brought by Alice Rice and Annie 1-Iamm against appellant to set aside a sale of a certain parcel of land situated in the city of Dallas, Tex., under execution issued against Alice Rice on a judgment rendered in favor of appellant for $43.80, interest and costs aggregating about $52. On a hearing of the case the court below rendered judgment in favor of the appellees for the land and in favor of appellant that he recover of appellees the sum of $51.75 tendered into court by plaintiffs and for all costs. From this decree of the court Peters appeals.

Conclusions of Fact.

Appellant recovered a judgment against Mrs. Alice' Rice for $43.80, interest and costs. He caused an execution to be issued thereon and caused it to be levied on Mrs. Alice Rice’s interest in the land in controversy, and had said land sold; he becoming the purchaser for the sum of $40.

The land was conveyed to Mrs. Alice Rice by her mother in consideration of love and affection; the habendum clause reading as follows: “To have and to hold, all and singular the premises unto the said Alice Rice for her during her natural life with remainder over to the heirs of her body, if any she have, but if the said Alice Rice should die without issue then title to the property hereby conveyed shall vest in my two children, Annie Hamm and Ferdinand Rick, in parcels as follows” — describing the parcels. On the land five cottages were erected which were occupied by separate tenants, bringing a revenue of $80 per month, and the whole property was worth $12,000 or $15,000. The land was sold by the constable as a whole, when by selling it in separate lots the sale of one would have been sufficient to more than pay off the execution. Before the bringing of this suit, appellees tendered to appellant the amount due on his judgment against Mrs. Rice, which he refused to receive, and then tendered it in court.

Conclusions of Law. •

It is contended that there is no irregularity shown in the sale by the constable, and that Mrs. Rice’s interest was a life estate, and, the value thereof not being shown, the evidence fails to show that $40 was a grossly inadequate price for the land. We do not construe the evidence as showing that Alice Rice’s title to the land was only that of a life estate. The deed from Helena Rick, conveying to her “during her natural life with remainder over to the heirs of her body,” etc., under the rule in Shelley’s Case, vested in her absolutely the fee-simple title to all the land in controversy. Seay v. Cockrell, 102 Tex. 280, 115 S. W. 1160; Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665; Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824.

The evidence showing the land to be of the value of $12,000 or $15,000, the levy was excessive, and the amount for which the land sold was grossly inadequate.

Our courts consider slight irregularities in a sale sufficient to set aside a sale under execution whose gross inadequacy in the price is shown.

The way the lot of land had been improved by the erection of buildings thereon so divided the land into separate and distinct pieces or parcels, and the failure to sell one at a time and not the whole at one time, as was done, was such an irregularity as to avoid the sale. Article 3753, R. 8. 1911, provides: “If real property situated in any town or city, taken in execution, consists of several lots, tracts or parcels, each shall be offered separately, unless the same be not susceptible of a separate sale by reason of the character of the improvements thereon.” The sale in this instance was violative of this article of the statute.

The character of the improvements on this land not only did not render it incapable of a separate sale but tended to divide the land into separate lots and render it capable to be offered for sale in separate parcels. The appellant received the amount of his judgment against Mrs. Rice, and it would be wholly inequitable for him to recover the land.

The judgment is affirmed.


text:
    KRUEGEL v. MURPHY & BOLANZ et al.
    (Court of Civil Appeals of Texas. Dallas
    May 31, 1913.
    Rehearing Denied June 21, 1913.)
    Clerks of Courts (§ 68*) — Appointment of Deputt — Failure.
    Rev. St. 1895, art. 1080, providing that in all cases wherein any district clerk is a party the district judge, in whose court the same shall be pending, shall appoint a clerk pro tern, is mandatory, and a failure to appoint a clerk, where the regular clerk is an interested party, will render the proceeding void, but where the clerk was merely a nominal party in mandamus, which involved plaintiff’s right to an execution on a judgment, the failure to appoint a clerk merely renders the proceedings irregular only, and a judgment of affirmance in such proceedings is not void.
    [Ed. Note. — For other cases, see Clerks of Courts, Cent. Dig. §§ 107, 108; Dec. Dig. § 68.*]
    Appeal from District Court, Dallas County.
    On motion to set aside former judgment.
    Motion denied, and former opinion affirmed.
    For former opinion, see 126 S. W. 680.
    Herman Kruegel, of Dallas, for the motion. Cobb & Avery, of Dallas, for contestants.
   RAINEY, C. J.

This is a motion to set aside a judgment of affirmance rendered by this court on March 19, 1910, in cause No. 6,034, appealed from the -Fourteenth judicial district court of Dallas county, styled Herman Kruegel v. Murphy & Bolanz et al. In said case in the court below Kruegel filed an application for a mandamus to require H. H. Williams, district clerk, to issue an execution on a judgment rendered by the district court in his favor against Murphy & Bolanz for a certain sum of money. In that proceeding, by permission of the trial court, Murphy & Bolanz made themselves parties defendant and set up various grounds why execution should not issue on said judgment. Williams filed no answer, and the district judge denied the application for mandamus, and Kruegel appealed.

The ground now urged for setting aside the judgment of this court is that the proceedings in that cause are null and void, and this court erred in assuming jurisdiction thereof, because Williams, district clerk, was a party defendant to said cause, and no clerk pro tern was appointed in said cause, as required by R. S. 1895, art. 1080, and that said Williams performed the functions of clerk in said cause, filing papers, entering the decree, and certifying to the transcript on appeal.

In actions against the clerk of a court, the statute is mandatory that a clerk pro tern shall be appointed to act during the trial of that cause, and in such cases our appellate courts have held that when. no clerk pro tern was appointed, and the regular clerk acted, such proceedings were void. Kruegel v. Williams, 153 S. W. 904. But were the proceedings in cause No. 6,034, now under consideration, void or merely irregular? We think they were merely irregular, and the motion should not be granted. As the case was conducted in the court below, it was virtually a contest between Kruegel and Mur-' phy & Bolanz as to whether Kruegel was entitled to have an execution issued by virtue of his judgment against Murphy & Bo-lanz. Williams made no fight in the case. I-Ie had no interest either way and was indifferent as to its result. Murphy & Bolanz were the interested parties, and the burden of the fight properly fell on them, and after they made themselves parties to the suit Williams then became but a mere nominal party thereto.

In the case of Womack v. Stokes, 12 Tex. Oiv. App. 648, 35 S. W. 82, where the clerk was a party to the suit and performed the duties of clerk in the cause, it was said'by Mr. Justice Williams: “It is urged by defendant in error that Stokes was disqualified, as clerk, from taking the affidavit and bond for garnishment and from issuing the writ and swearing the garnishees to their answers and filing same, and that all of these proceedings should be treated as nul-lities and the judgment should be affirmed, or else reversed and the proceedings dismissed. We cannot agree to this. Stokes could take the affidavit for a garnishment for Bayne and Routen and issue the writ to them. He was disqualified from acting as far as he himself was concerned. The fact that all were joined in the proceeding made it irregular, but no good reason is seen why it should be treated as void, so far as the others were concerned. The defect was one which, in our opinion, could be waived by Bayne and Routen, and they effectually did so by answering and making no objection to the proceeding.”

Kruegel made no request in the court below for the appointment of a clerk pro tern nor filed any objection to Williams acting as clerk, nor did he assign error on that ground or call the attention of this court to such irregularity, and our attention was not directed to this phase of the case until the presentation of the motion under consideration.

Under the facts and circumstances as here presented, we are of the opinion that said judgment is not void, and the motion to set aside the judgment is overruled.


text:
    ARCHER v. COLE.
    (Court of Civil Appeals of Texas. Dallas.
    May 24, 1913.
    Rehearing Denied June 21, 1913.)
    Costs (§ 216) — 1Correction Subsequent to Teem.
    Though a court has no jurisdiction over its judgment when legally rendered, after the term has expired, a party against whom costs have been improperly, assessed by the clerk may lawfully move to have such costs retaxed after the adjournment of the court for the purpose of eliminating items illegally or improperly taxed, but not to have such items taxed against his opponent.
    [Ed. Note. — For other cases, see Costs, Cent.. Dig. § 823; Dec. Dig. § 216.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by P. H. Archer against F. P. Cole. From a judgment sustaining a general demurrer to the plaintiff’s motion to retax costs, he appeals.
    Reversed and remanded.

      Simkins & Simkins, of Corsicana, for appellant. Callicutt & Call, of Corsicana, for appellee.

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

   RAINEY, C. J.

This is an appeal from a judgment sustaining a general demurrer urged against a motion to retax costs mado by appellant in the above-styled case. On the original trial of said case upon its merits judgment was rendered against P. H. Archer, appellant herein, and in favor of E. P. Cole, for all costs of suit, and an execution awarded in favor of the officer of court for the costs. No amount was specified in said judgment as the amount of the costs, and the said Archer was not adjudged to pay any certain amount as costs.» The bill of costs was not made out and presented to Archer until after the adjournment of court. Subsequent to the presentation of said bill of costs Archer filed a motion to retax the costs, alleging certain of the items thereof to be illegal and not proper charges, as against him, after praying for said costs to be retaxed, and that all improper and illegal items be stricken from said bill of costs, and further praying that all items not properly taxed against him should be taxed against E. P. Cole, and for such other and further relief as the nature of the case requires.

The court in sustaining the demurrer seems to. have considered the motion as one to correct the, judgment as to the costs adjudged, and as coming too late, being filed after the adjournment of court. In so0far as the motion seeks to have P. P. Cole taxed with the illegal and improper items, the motion should not be considered, but we think the motion, properly construed, shows that Archer was seeking relief from items that were illegally or improperly taxed as costs. This we think he had the right to do. It is true by this motion he could not correct the judgment by having it changed and Cole taxed with any illegal and improper costs that had been assessed by the clerk. The judgment of the court, not adjudging any specified amount of costs against Archer, should be construed to mean the costs that were properly and legitimately incurred in the prosecution and defense of the case; and, -if the clerk had assessed costs that were improperly and illegitimately incurred, the court should have investigated and relieved Archer of the burden of paying such items, if there were any such. That a court has no jurisdiction over its judgment when legally rendered, after the term of court at which it was rendered expires, is well settled, and it is equally well settled that where costs are improperly assessed by the clerk against a party, such party may move to have such costs retaxed after the adjournment of court. This proposition is not contested by appellee. However, we cite, as bearing on this proposition, Hardy v. De Leon, 7 Tex. 466; Railway Co. v. Jones, 46 Tex. 140; Patton v. Cox, 97 Tex. 257, 77 S. W. 1025. The motion, in so far as it sought relief from the items of cost improperly and illegally assessed against appellant, stated a good cause of action, and the court erred in sustaining a general demurrer thereto.

The judgment is reversed, and the cause remanded.


text:
    TAYLOR v. TAYLOR et al.
    (Court of Civil Appeals of Texas. El Paso.
    June 5, 1913.
    Rehearing Denied June 19, 1913.)
    Pkocess (§ 26) — SeRvice of Citation — Time.
    A citation commanded defendant to appear before the district court “at the next regular term thereof, to be holden * * * on the 2d Monday in September, 1912, the same being the 2d day of September, 1912.’’ The term of the court convened on September 2, 1912. Held, that the citation was fatally defective as to the time defendant was cited to appear.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 20; Dec. Dig. § 26.]
    Appeal from District Court, El Paso County ; J. R. Harper, Judge.
    Suit by E. G. Taylor and others against E. L. Taylor. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    A. Pool and Brown & Terry, all of El Pa-so, for appellant. Stanton & Weeks, of El Paso, for appellees.

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

   HIGGINS, J.

E. G. Taylor filed suit against E. L. Taylor, and citation was issued commanding him “to be and appear before the honorable district court of El Paso county, Tex., thirty-fourth judicial district, at the next regular term thereof, to be holden at the courthouse in the city of El Paso, on the 2d Monday in September, A. D. 1912, same being the 2d day of September, A. D. 1912.” The term of said court convened on September 2, 1912, and upon appearance day an interlocutory judgment by default was rendered against appellant, which was thereafter made final. A motion for new trial was filed, in which the sufficiency of the citation and the sheriff’s return thereon were attacked, which motion was overruled, and the cause is now before this ,court for review. There is a total want of certainty as to time in the citation. It is impossible for the second Monday in a month to be the second day thereof. Defendant therefore could not determine from the citation the correct date upon which he was to appear. This want of proper certainty cannot be supplied by construction or intendment, and the citation was defective. Wright v. Wilmot, 22 Tex. 398; McNeil v. Ballinger, 1 White & W. Oiv. Oas. Ct. App. § 841.

Reversed and remanded.

HARPER, C. J., did not sit in this case.


author: LEVY, J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. LITTLE.
    (Court of Civil Appeals of Texas. Texarkana.
    May 16, 1913.
    Rehearing Denied June 5, 1913.)
    Carriers (§ 321) — Actions for Injuries— Instructions.
    In an action for injuries by a person who boarded a train with a passenger for the purpose of assisting her to a seat and attempted to alight after the train started, where the only evidence as to the conductor’s knowledge of his intention to alight was that relating to a conversation between plaintiff and the conductor, an instruction claimed to have authorized a finding of such knowledge, even though he did not have such conversation, could not have misled the jury, and was not reversible error under rule 62a for Courts of Civil Ap-- • peals, prohibiting reversals for errors not amounting to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of am improper judgment.
    [Ed. Note. — For other cases, .see Carriers, .Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.)
    Appeal from District Court, Cherokee County; Jas. I. Perkins, Judge.
    Action by G. H. Little against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    E. B. Perkins, of Dallas, Marsh & Mcll-waine, of Tyler, and D. Upthegrove, of Dallas, for appellant. J. C. Box and Lee G. Carter, both of Jacksonville, for appellee.

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

   LEVY, J.

Appellee accompanied his niece and her two small children to the station .at Mt. Selman, so that they might take appellant’s regular passenger train to Tyler. It was dark when the train was due and arrived. Appellee boarded the train with his niece and her two children — one an infant— for the purpose only of assisting and providing them with seats. According to the testimony of appellee, he stated to the conductor, who was standing at the steps of the platform of the car, that he was merely going on the train to assist his niece and her children, and that he wanted him to hold the train until he could do so and alight, and the conductor said all right. According to the testimony of the conductor, he asked appellee, when he presented himself at the car steps, where he was going, and the ap-pellee replied that' he “was going on with the lady,” and, as the lady had said she was going to Tyler, he understood appellee was to be a passenger for Tyler. Just before appellee placed his niece and her grip in a seat the train started to move. I-Ie placed his niece and her child in a seat, and then started to alight, and, undertaking to step off the train while it was moving, was thrown to the ground, and thereby received injuries. Claiming that the injuries were occasioned through the negligence of appellant, the appellee brought the suit for damages. The verdict of the jury settled all issues of fact in favor of appellee. The verdict involves the finding of fact that appellant was guilty of the negligence pleaded proximately causing the injury, and that ap-pellee was not guilty of contributory negligence. The evidence warrants-the findings, and supports the amount of the verdict.

The first assignment of error complains of a paragraph of the court’s charge. The objection is that it was calculated to lead the jury to believe that the conductor knew the intention of appellee to disembark, when there was a sharp conflict in the evidence as to the conductor’s knowing the purpose of appellee. The court was not undertaking to apply the law to the facts, but was giving an abstract outline of the principles of law appertaining to the general duty owing by railway companies to persons who go upon trains for the purpose ' of assisting female passengers. We do not think the jury could reasonably have been misled to appellant’s injury by the charge.

A paragraph of the court’s charge is objected to on the ground that it was calculated to lead the jury to believe that, although the appellee did not have the conversation with the conductor which he testified he had, the conductor, in the opinion of the court, otherwise knew or should have known of the intention of appellee to disembark. As there was no evidence that the conductor knew the appellee’s purpose to disembark, outside of the conversation between him and appellee, it is not at all likely that the jury understood otherwise than that the court intended they should decide the conductor’s knowledge of appellee’s purpose from and by the conversation between them. We do not think the assignment should be held reversible error in this case. Rule 62a (149 S. W. x).

We conclude that the third assignment, complaining of the court’s change, does not afford sufficient ground for the reversal of the case. Parks v. Traction Co., 100 Tex. 222, 94 S. W. 331; Rule 62a.

We have carefully considered the fourth assignment, complaining of excessive amount, but it is believed that the decision in that respect by the jury cannot properly be disturbed.

The judgment is affirmed.


author: REESE, J.

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. THOMPSON.
    (Court of Civil Appeals of Texas. Galveston.
    May 15, 1913.)
    1. Telegraphs and Telephones (§ 20) — -Injury prom Wires — Instructions—Definition.
    In an action for injuries to a horse caused by a wire left in the highway by a telephone company, where the evidence raised the question of negligence of the defendant, and the charge given by the court did not define negligence, it was reversible error to refuse a charge, requested by the defendant, that if the jury believed that an ordinarily prudent man, situated as defendant was, would have left the wire there, the defendant was not negligent, since without such a charge the jury were not instructed as to the degree of care required of the defendant.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.]
    2. Telegraphs and Telephones (§ 20) — Injury prom Wires — Instructions—Anticipation op Injury — Necessity.
    Where it was relevant to the evidence, it was error to refuse a requested charge that unless an ordinarily prudent man, situated as de-fndant was, would have reasonably anticipated that an accident would occur from his act in leaving a telephone wire in the highway, the defendant was not liable.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.]
    3. Telegraphs and Telephones (§ 20) — Injury prom Wires — Evidence—Admissibility — Precautions Against Recurrence.
    In an action against a telephone company for injuries to a horse caused by a wire left in the highway, where there was a conflict in the evidence as to the ownership of the wire, evidence that the defendant’s district chief shortly after the accident ordered linemen to remove the wire was admissible as tending to show ownership.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.]
    4. Evidence (§ 317) — Hearsay—Statement by Others Than Parties.
    In an action against a telephone company to recover for injuries to a horse caused by a wire left in the highway by the company, it is error to permit a witness whose statements are not binding on the company to testify as to what he told the owner of the horse.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.] Reese, J., dissenting in part.
    Appeal from Hardin County Court; Jno. L. Little, Judge.
    Action by W. R. Thompson against the Southwestern Telegraph & Telephone Company. Judgment for the plaintiff, and the defendant appeals.
    Reversed and remanded.
    A. P. Wozencraft and S. P. English, both of Dallas, for appellant.

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

   REESE, J.

This suit was originally instituted in the justice court by appellee against appellant to recover $175 damages to plaintiff’s horse occasioned by his becoming entangled in some wire which it is alleged was negligently placed and allowed to remain in the public road by defendant’s servants. It 'was alleged that while riding along said road at night plaintiff’s horse became entangled in the wire, and was injured. A trial in the justice court resulted in a judgment for plaintiff. Defendant appealed to the county court, and on trial in that court with a jury plaintiff recovered judgment for

$100, from which defendant appeals. No briefs are filed by appellee.

The court submitted the issue of negligence as follows: “Now if you believe' from the evidence that on or about August 30, 1911, the defendant negligently permitted some of its telephone and telegraph wires to negligently be and remain upon the road in question, and that the same was a public road or highway, and that by reason of such negligence, if any, on the part of the defendant, and without fault or negligence on the part of plaintiff, which contributed to the injury, the plaintiff’s horse was injured as alleged, then you will find for the plaintiff.” The charge does not contain any definition of negligence. Appellant requested the court to give the following charge: “If you believe from the evidence that defendants put said wire upon the ground as alleged, and did not remove same, but if you further believe that the ordinarily prudent man situated as defendant was situated would have left said wire as defendant did, and would not have removed same, then you will find for the defendant.” The evidence raised the issue of negligence on the part of appellant. The charge requested contained a proper definition of negligence as applied to the facts of the case, and in the entire absence of anything in the charge to enlighten the jury as to what is meant by negligence, as used in the court’s general charge, the requested charge should have been given. There are several degrees of negligence, depending upon the amount and degree of care which the law requires in the particular case. It is not at all certain that the jury would understand from the court’s charge that appellants were only required to exercise that degree of care which a person of ordinary prudence would have exercised in the circumstances of the particular case in leaving the wire where it was. G., H. & S. A. Ry. Co. v. De Castillo, 83 S. W. 25; M., K. & T. Ry. Co. v. Hines, 40 S. W. 152. The refusal to give the requested charge is complained of by the sixth assignment of error, which must be sustained as constituting material and reversible error.

It was also error to refuse to give the charge requested by appellant, and referred, to in the eighth assignment of error, in substance, that, unless a man of ordinary prudence situated as defendant was would reasonably anticipate that any accident or injury would likely result from the act of leaving the wire where it was, defendant would not be liable. The evidence called for such a charge. The eighth assignment of error must be sustained.

S. A. Thurmond, district chief for appellant, was allowed to testify over the objection of appellant that after the accident he instructed a lineman to take up the wire along the road between Sour Lake and Saratoga. The road on which appellee was riding was the road from Sour Lake to Sara-toga. It appeared that when Thurmond gave this order appellee had made a claim for the injury the. basis of this suit. This evidence was offered and admitted for the sole purpose of proving that the wire belonged to appellant, as to which the evidence was conflicting. A majority of the court holds that this testimony was properly admitted for the purpose indicated. The writer of this' opinion is inclined to doubt the soundness of this conclusion. The wires of appellant were strung on poles along this road. Appellant was charged with having negligently left this wire in the road. Two other corporations had wires strung on the same poles. It was a matter of common prudence for Thurmond to direct the wire to be taken out of the road, so as to avoid further injury, whether it belonged to his company or not. I think that the case comes fairly under the operation of the rule which forbids the admission of evidence of repairs made after an accident has occurred for the purpose of preventing other accidents to establish negligence. In this view the majority does not concur.

It was error to admit, over the objection of appellant, the testimony of P. A. Marks, referred to in the fourth assignment, as to what he told appellee Thompson. Marks’ statements were not binding upon appellant.

None of the other assignments of error present any merit, and they are overruled. For the -errors herein pointed out, which are material, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: FLY, C. J.

text:
    GAYLE v. GAYLE.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.)
    1. Appeal' and Eekob (§ 257) — Questions Reviewable — Denial op Continuance — Bill op Exceptions.
    Overruling of an application for a continuance cannot be reviewed on appeal, where no bill of exceptions was taken to the ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§, 1494-1497; Dec. Dig. § 257.]
    2. Appeal and Eekob (§ 742) — Questions Reviewable — Assignments op Ebbob — Statements.
    An assignment of error complaining of the ruling on evidence, not followed by a statement indicating what the evidence was, will not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Bexar County; R. H. Ward, Judge.
    Action by R. A. Gayle against Lorena V. Gayle. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Cline & Reynolds, of San Antonio, for appellant. David J. Powell, of San Antonio, for appellee.

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

   FLY, C. J.

This is a suit for divorce instituted by appellee against his wife, the appellant, on the ground of excesses, cruel treatment, and outrages of such a nature as to render their living together insupportable. A trial by jury resulted in a verdict and judgment dissolving the bonds of matrimony.

The first assignment of error complains of the action of the court in overruling an application for continuance. It cannot be sustained because no bill of exceptions was taken to the action of the court in overruling the application. Campion v. Angier, 16 Tex. 93; Harrison v. Cotton, 25 Tex. 54; Jones v. State, 40 Tex. 188; Morris v. Files, 40 Tex. 374; Knights of Golden Rule v. Rose, 62 Tex. 321; Railway v. Klaus, 34 Tex. Civ. App. 492, 79 S. W. 58. If the application for continuance was ever acted upon by the court, the record fails to show it.

The second, third, and fourth assignments of error are not followed' by statements, and nowhere in the brief is there anything to indicate what the testimony was of which complaint is made. Assignments not followed by statements will not be considered. It is not shown in the brief that bills of exception were taken to the testimony that is assailed. A reference to the bills of exception shows that the testimony complained of is not set out in them, or either of them.

What are denominated the twelfth and thirteenth assignments of error are not found in the record among the assignments of error, and it is stated that neither of them is among the assignments of error, but that they are contained in what is called a “supplemental motion for new trial.” No such paper appears in the record, unless the amended motion for new trial is intended. We find in the amended motion for new trial a complaint of the sufficiency of the evidence, and, while there is really no assignment of error and no statement thereunder, we have carefully read the statement of facts and have arrived at the conclusion that the evidence was sufficient to sustain the decree of divorce, if it ■ was true, and the trial judge has so found it.

The judgment is affirmed.


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    RAGLAND v. GUARANTEE LIFE INS. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    June 4, 1913.)
    1. Pleading (§ 111*) — Plea oe Privilege— OPERATION AND EFFECT.
    A sworn plea of privilege in statutory form is not prima facie proof of the facts alleged, and other proof of the facts must be in-tjroduced to Sustain it, unless such facts are revealed on the face of plaintiff’s pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.*]
    2; Pleading (§ 111*) — Plea oe Peivilege— Evidence.
    The failure of plaintiff to rebut by evidence the allegations in defendant’s sworn plea of privilege in statutory form is not an admission of the facts alleged in the plea, for the burden is on defendant to sustain the allegations by evidence.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 234-230; Dec. Dig. § 111.*]
    3.. Pleading (§ 111*) — Plea oe Peivilege— Teansfeb oe Cause.
    'The court sustaining a plea of privilege must as required by Acts 30th Leg. c. 133, transfer the cause to the proper county, and may not dismiss it.
    • [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§, 234-236; Dec. Dig. § 111.*]
    Appeal from Nueces County Court; Walter F. Timón, Judge.
    Action by W. H. McCracken against Thomas Ragland and another, in which the Guarantee Life Insurance Company was made a party. From a judgment sustaining the plea of privilege interposed by the Guarantee Life Insurance Company, and dismissing the cause as to it, defendant Thomas Ragland appeals.
    Reversed and remanded.
    Dougherty & Dougherty and B. D. Tarlton, J!r., all of Beeville, for appellant.
   TALIAFERRO, J.

This is a suit on a promissory note brought by W. H. McCracken, alleged to have been a bona fide purchaser, against T. H. Ragland, and I. H. Moore, and to which appellant Ragland answered, pleading a general demurrer and a general denial, and pleading further a failure of consideration, and praying that the appellee, Guarantee Life Insurance Company, be made a party in the cause, and that in the event judgment should be had against him that he have judgment over against the Guarantee Life Insurance Company. He alleged, as a ' cause of action, against the Guarantee Life Insurance Company, the following facts: (1) That the note was executed in payment of an insurance policy on the life of his minor son; that the policy for which the note was given was never delivered; that the execution of the note was secured through ■ fraud, misrepresentation, and deceit of I. H. Moore, who at the time was acting as a duly authorized agent of the appellee, the Guarantee Life Insurance Company; that the fraud' and deceit were committed in Nueces county; and that the policy was to be delivered there, and. that the cause of action, or a part thereof, accrued in Nueces county. The defendant,' Guarantee Life Insurance Com--pany, in answering filad a plea of privilege to be sued in the county of its domicile, namely, Harris county, Tex., and alleged that none of the exceptions to the exclusive venue act existed in this case. Upon a trial, without any evidence having been heard to support or to oppose it, the court sustained. the appellee’s plea of privilege, and dismissed- the cause as to the Guarantee Life Insurance Company.

This was error. The rule is now established in this state that the sworn plea of privilege in statutory form is not prima facie proof of the facts alleged in the plea and other proof of the facts so alleged must be introduced to sustain the plea unless such facts are revealed upon the face of plaintiff’s pleading. Nor is the failure of the plaintiff in such case, to rebut the allegations in the plea by evidence, to be taken as an admission of the facts set out in the plea of privilege, as the burden is upon the one urging the plea to sustain it by evidence. Tex. & Ft. S. Ry. Co. v. Shivel, 114 S. W. 196; Railway v. Cock, 51 S. W. 354; Graves v. Bank, 77 Tex. 555, 14 S. W. 163; Mangum v. Lane City Rice Milling Co., 95 S. W. 605; Rice Milling Co. v. Wilcox, 45 Tex. Civ. App. 303, 100 S. W. 204; Witherspoon v. Duncan, 131 S. W. 661, and cases there cited.

It was also error for the court, having sustained the plea of privilege, to dismiss the case. The proper practice would have been, had the plea been properly sustained, to transfer the case to the county where the venue properly lay. Chapter 133," Acts 30th Leg.; Luter v. Ihnken, 143 S. W. 675; El Campo Water & Light Co. v. El Campo Light & Ice Co., 150 S. W. 259.

This error, if standing alone, would not be sufficient to reverse the case as this court would have the power to enter the order transferring the case to the proper tribunal for trial, and the court’s attention is called to the error for his guidance in future trial of the case should the evidence reveal that the venue of the suit against appellee lay in another county.

For the errors above mentioned, the judgment of the lower court is reversed and the cause remanded.


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    TEXAS & P. RY. CO. v. NEW BOSTON HARDWARE CO.
    (Court of Civil Appeals of Texas. Texarkana.
    May 29, 1913.
    Rehearing Denied June 12, 1913.)
    Railboads (§ 461) — Fibes—Conteibutoby Negligence.
    The owner of a warehouse within 55 or 56 feet of railroad tracks in which combustible material was stored in front of a window owed the railroad company no duty to anticipate its negligence in permitting the emission of sparks and fire from its engines, or to guard against it by so slatting or latticing the window as to exclude sparks, and its failure to do so was not contributory negligence defeating a recovery for the company’s negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1682; Dec. Dig. §, 461.]

      Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Action by the New Boston Hardware Company against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Glass, Estes,-King & Burford, of Texark-ana, for appellant. Mahaffey & Thomas, of Texarkana, and O. B. Pirkey, of New Boston, for appellee.

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

   LEVY, J.

On March 15, 1912, appellee’s warehouse, together with the contents of same, was destroyed by fire. Claiming that its property was set on fire through sparks and fire negligently emitted and ejected from an engine of appellant being there operated at the time, the appellee sued for the loss. Appellant answered by denial, and pleaded that appellee was negligent in permitting combustible materials to accumulate in the building that was burned and in leaving the windows and openings in same without sufficient protection against sparks of fire, and thus causing and contributing to cause the injury. The case was tried to a jury, and the verdict was in favor of appellee. The verdict involves the finding of fact that the warehouse and its contents were destroyed by fire through negligence of the appellant. The evidence supports the finding of negligence on the part of the railway company as pleaded, and as well the amount of-the verdict; and such findings of fact are sustained and here adopted.

Appellant requested the following charge: “You are instructed that the undisputed testimony in this case shows that the plaintiff permitted glass or some of them in the sash of the window on the south side of their warehouse to remain broken, and that they thus exposed the contents of the warehouse to the danger, if any there was, of becoming ignited by sparks emitted from passing engines. Now if from the testimony you believe that, considering the location of the said premises, the combustibility, if any, of such contents, or the previous observations of sparks on the floor, a person of ordinary prudence, under the circumstances, would not have permitted the said glass to remain broken or would have done more to protect the said window from sparks than the proofs shows that the plaintiff did, and that if they had done so the house would not have burned, then your verdict should be for the defendant, even though you may believe the engine threw the sparks that set the house afire, and that the spark arresters were not in proper repair.” The court refused the charge, and this is made the basis of an assignment of error. The evidence established without dispute that the appellee owned a lot on which wds situated a warehouse 30 feet wide by 80 feet long, and with a wall 12 feet high. The width of the warehouse was east and west, and the length thereof north and south. The railway track of appellant is .south of the lot, and the distance from the center of the track to the south end of the warehouse is between 55 and 56 feet. The warehouse was a frame building of pine material, and was used by appellee in connection with its store in New Boston as a place for hardware and such other things used by them in connection with their business as hardware merchants, and the warehouse had been so used by appellee for all the time since it had been in business. In the south end of the warehouse, towards the railway track, was a window, located between four and five feet above the floor. The panes of glass in the window were broken out, and had been in that condition for some time before the fire. But strips or slats had been nailed across the window before- the fire, and cracks or openings were left between such slats, and were of sufficient width to admit substances of the size of ordinary cinders. Before the fire occurred, there were stored in the warehouse either eight or ten sacks of cotton seed. These were located about ten feet from this window and practically in front of it. There does not appear any design or intention in storing the cotton seed in front of the window. It appears this was the only combustible material stored in that end of the warehouse. The instant fire Was caused by cinders from passing engine No. 315 entering the building through the cracks or openings between the slats over the window. The witness Burrows testified that he had on several occasions found cinders and coals in the building about 10 or 15 feet back in the south end, and that the cinders were of the size of a lead pencil and some larger, and that some of the cinders ñad scorched the floor, and that it had been a week, and possibly a month, before the fire that he knew that the cinders came through the window; that several of the panes of glass had been out a year and a half; that he took some slats of crates and nailed them against the window; that the officers of appellee knew, the fact that cinders had come into the building through the slats. The witness Ruff, an employé of appellee, testified to the effect that he had observed cinders in the house within a month of the fire, and on several occasions for a month and as much as six months before the fire, and called Mr. Burrows’ attention a time or two to the fact, and that no further protection was made against the cinders coming through the window. The evidence shows that the warehouse was a lawful and proper structure, and there was a lawful and reasonable use of the premises; and in the exercise of its legal rights in this respect the law does not impose upon appel-lee any duty to anticipate the negligence of the appellant. Freeman v. Nathan, 149 S. W. 248, and authorities there referred to support the proposition here, we think. 2 Thompson on Negligence, § 2314. As appel-lee in the lawful use of its own, property was not under any legal duty to appellant to so construct or maintain in repair the building as to prevent its loss or injury from negligence of appellant, it is believed that contributory, negligence could not properly be, predicated on the failure of appellee to so slat or lattice the window as to exclude sparks from an engine. If appellee did not owe the appellant the legal duty to close the window and keep it securely closed against the result of possible or probable negligence of the appellant, then as a matter of law the appellee would not be concluded of a recovery for the negligence of appellant because of a failure, if any, to securely close or slat the window against negligent operation of a locomotive.

We have carefully considered the other assignments, and conclude that they should be overruled.

The judgment is affirmed.


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    COMMERCIAL JEWELRY CO. v. HILLIN.
    (Court of Civil Appeals of Texas. Texarkana.
    June 5, 1913.)
    Sales (g 92)— Contract — Rescission—Liability fob Price.
    Goods sold were shipped to the buyer and reached their destination, but after shipment and about the time the goods arrived the buyer, discovering that he was insolvent, wrote the seller not to ship, which letter was received November 20, 1909. On April 25, 1910, the buyer having made no payment, the seller directed him to return the' goods, and agreed to cancel the contract. No reply was made, but part of the goods were retained' in the buyer’s possession, and the remainder held in the express office for nonpayment of shipping charges. Held, that the seller’s agreement to cancel the buyer’s obligation was conditional on return of , the goods, and, this not having been accomplished within a reasonable time, the seller was entitled to recover the price.
    [Ed. Note. — Por other cases, see Sales, Cent. Dig. §§ 257, 259; Dec. Dig. § 92.]
    Appeal from Rusk County Court; J..W. McDavid, Judge.
    Action by the Commercial Jewelry Company against T. J. Hillin. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    Strong & Arnold, of Henderson, for appellant. Futch & Tipps, of Henderson, for appellee.

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

   HODGES, J.

The Commercial Jewelry Company sued the appellee on a written contract whereby the latter bound himself to pay to the jewelry company the sum of $360 as the price of a list of goods consisting of a showcase, some cut glass, and jewelry. The appellee answered, admitting the execution of the contract sued on and the shipment of the goods according to its terms, but set up as a defense a transaction which is relied on as constituting an agreement rescinding the original contract and a release from the obligatioñ. The case was tried before the court without a jury, and á judgment rendered in favor of the jewelry company for the goods, and providing that, in .the event they were not returned, it have judgment also for their value, $360. '

The facts show that in November, 1909, the appellee purchased from the Commercial Jewelry Company the list of goods constituting the consideration for the promise sued on. The contract was evidenced by a written order given to one of the appellant’s salesmen, by which the appellee agreed to pay in installments specified the sum of $360. The agreement also stipulated that a delivery by the shipper to the carrier should constitute a delivery to the consignee. The goods were shipped promptly according to the terms of the agreement, and in due time reached their destination at Pine Hill, Tex. After they were shipped and about the time they arrived at Pine Hill, or perhaps a little before, the appellee discovered that he was insolvent, and wrote to the appellant as follows: “You will please not ship goods. I am afraid I can not make payments.” This letter was received, according to testimony offered by the appellant, on November 20, 1909. On April 25, 1910, appellee having made no payment under his contract, appellant wrote him reminding him of his purchase, and also sent him shipping instructions with directions to return the goods, and agreeing in the event he did so to cancel his contract and release him from his obliga- • tion. It appears that no reply was made to this letter by the appellee, and that later it was followed by another from the appellant of the same tenor but more urgent. This also seems to have been ignored at the time by the appellee. The goods had been shipped to him in two different parcels — the jewelry in one and the show case and cut glass in another. When the jewelry arrived, it was taken out by the appellee, who says he did so by mistake, not knowing at the time what it was and from whom it came. He, however, retained it in his possession, and had the goods at the time of the trial. The remaining goods were permitted to stay in the express office. Appellee testified that after having communicated with the appellant he instructed the agent at the depot to return the goods, and told him that when he was ready to return them to let him (appel-lee) know and he would deliver the jewelry; in the meantime he would retain possession in order to avoid storage charges. The goods were held by the express company and never returned, because of the nonpayment of the shipping charges which had' accrued. The court construed these facts as being sufficient to show that the contract of purchase had been rescinded, and that the goods were the property of the appellant.

It is clear from the undisputed evidence that the appellant was entitled to recover an unconditional judgment for the amount of money sued for, unless there was an unconditional agreement to rescind the original contract entered into between the parties, or an agreement whose terms had been complied with by the appellee. The facts relied on make an agreement to surrender the ap-pellee’s obligation in the event he returned the goods. This he failed to do. A part of them he retained for nearly two years in his actual possession, and permitted the remainder to be held in the express office for charges for which he was personally responsible. The judgment of the trial court will therefore be reformed, and judgment here rendered in favor of the appellant for the amount sued for and for all costs both of this court and of the court below.


text:
    RAINWATER v. GWALTNEY et al.
    (Court of Civil Appeals of Texas. Texarkana.
    May 29, 1913.)
    Justices of the Peace (§ 128) — Judgment-Invalidity — ENFORCEMENT — REMEDY — Injunction.
    Wheie plaintiff’s homestead was sought to be taken in satisfaction of a void justice’s judgment, plaintiff was entitled to maintain injunction to restrain the application of the homestead to the satisfaction of the judgment, but not to have the judgment declared void under the rule that where defendant in a void judgment has an opportunity to- avail himself of a legal remedy to vacate it, and has failed to do so, he may not obtain such relief by injunction.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 402-407; Dec. Dig. § 128.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Mrs. Jeffie D. Gwaltney and others against D. T. Rainwater. Judgment for plaintiffs, and defendant appeals.
    Reformed and affirmed.
    W. P. Donalson, of Dallas, for appellant. T. F. Lewis and J. C. Muse, both of Dallas, for appellees.

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

   LEVY, J.

Appellant recovered a judgment against Mrs. Gwaltney for $199 in the justice court The judgment appears to be by default. It is a proven fact in the record that Mrs. Gwaltney was actually served with citation, and further actually knew that a judgment was entered against her at the time. In due time after the rendition of the judgment execution was issued, and it was levied upon certain real estate belonging to Mrs. Gwaltney. Mrs. Gwaltney brought the suit against D. T. Rainwater and the constable of the precinct for injunction to restrain the sale under execution of the property on the ground that it was a homestead and therefore exempt. The petition also sought to enjoin executions generally upon the judgment of the justice court and to have canceled the record of an abstract of such judgment upon the ground that the judgment rendered against her" was void because the body of the citation did not contain the name of the plaintiff in the suit. The court upon hearing granted the relief prayed for.

The facts support the finding of a homestead, and appellant admits that such finding is warranted. As the court had the power and it was proper to enjoin the sale of the homestead of appellee, the judgment entered in that respect is valid and should be here sustained. The judgment, however, went further than giving relief against the sale of the homestead, which is complained of by proper assignments of error. The judgment declares void the judgment of the justice court and proceeds to enjoin executions generally and perpetually upon the judgment of the justice court. This was error in the record, even if the judgment should be held void as claimed by appellee. And in passing on this question we merely assume that the judgment of the justice court was void. It has been held that where a defendant in a void judgment has an opportunity to avail himself of a legal remedy to vacate it, and has failed or neglected to avail himself of it, relief by injunction should be denied him. Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918; Railway Co. v. Wright, 88 Tex. 346, 31 S. W. 613, 31 L. R. A. 200. The judgment against Mrs. Gwaltney. being for $199, she had a remedy by appeal or certiorari.

The judgment of the district court should, be affirmed in so far as it enjoins the sale of the homestead of appellee, and reversed, and such relief denied in so far as it decrees as void the judgment of the justice court and the record of the abstract of such judgment and enjoins executions generally and perpetually upon such judgment, and it is here so reformed and affirmed. The costs of appeal will be taxed against the appellee Mrs. Gwaltney.

Reformed and affirmed.