source: Caselaw Access Project

author: RAINEY, O. J.

license: Public Domain

text:
    SWEETWATER COTTON OIL CO. et al. v. BIRGE-FORBES & CO.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.
    Rehearing Denied Dec. 6, 1913.)
    1. Deposits in Court (§ 11) — Review—Invited Error.
    Where, in a suit to foreclose a mechanics’ lien in which a receiver was appointed, a bank holding bonds secured by a deed of trust on the property, and which purchased the property at the trustee’s sale, intervened, alleging- that there were no claims against the property except that of plaintiff and certain receivership costs, and offered to deposit such sum as the court might deem just and proper to be held subject to such orders and final judgment or decree as to the disposition thereof as might be thereafter made, whereupon it was permitted to make such deposit, and the court thereupon ordered its receiver to deliver possession of the property to the bank’s vendee, the bank could not complain of the payment of plaintiff’s claim out of such deposit; there being no condition that it be applied to any debt except such receivership costs.
    [Ed. Note. — For other cases, see Deposits in Court, Cent. Dig. § 12; Dec. Dig. § 11.]
    2. Landlord and Tenant (§ 152) — Improvement by Tenant — Construction of Lease.
    Where a lease on an oil and cotton gin plant authorized the lessee to advance money to put the plant in running order and condition and bound the lessors to repay the amount so advanced and contained an option to renew, which the lessee exercised, the lessor was liable for money expended by the lessee in making necessary repairs to put the plant in running condition for the renewal term.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 152, 538-543, 545-549, 551-557; Dec. Dig. § 152.]
    3.Appeal and Error (§ 724) — Assignment of Error — Noncompliance with Rules.
    Where assignments of error did not distinctly specify the ground of error relied on nor point out that part of the proceeding contained in the record in which the error was complained of in a particular manner with such reasonable certainty as was practicable in a succinct and clear statement, as required by the rules, they might be treated as waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    4. Appeal and Error (§ 1051) — Harmless Error — Admission of Evidence.
    In an action to foreclose a mechanics lien, where the petition contained an itemized account verified as required by statute, which was admitted in evidence without objection, and plaintiff’s claim was fully preved by other evidence, the admission of plaintiff s books was harmless, although they were not properly proved.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §| 4161 — 4170; Dec. Dig. § 1051.]
    Appeal from District Court, Grayson County; W. M. Peck, Judge.
    Action by Birge-Forbes & Co. against the Sweetwater Cotton Oil Company and others. From, a judgment in favor of plaintiff, defendants appeal.
    Affirmed.
    Elijah Robinson, of Kansas City, Mo., and Freeman & Batsell, of Sherman, for appellants. J. F. Holt and Head, Smith, 1-Iare, Maxey & Head, all of Sherman, for appellee.

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

   RAINEY, O. J.

Appellees sued the Sweet-water Cotton Oil Company to recover the sum of $5,056.21 and to foreclose a lien. Plaintiffs alleged: That they leased the oil and cotton gin plant of appellants, including machinery, fixtures, etc. That said plant needed repairs, which plaintiffs agreed to make, and for which appellants agreed to pay. That said lease was to continue for the term of ten months and provided that at the end of said term for a renewal at the option of plaintiffs, and the same was renewed. That plaintiffs made necessary repairs by putting in new machinery, etc., and took the necessary steps to fix and secure a mechanic’s, contractor’s, and materialman’s lien, and after the renewal they made additional necessary improvements, etc. They further alleged that said oil company was largely indebted and insolvent and had ceased operating its plant, and a receiver was appointed to take charge thereof and who duly qualified August 21, 1910. On April 10, 1911, appellant National Bank of Commerce, of Kansas City, Mo., with leave of the trial court, filed a plea of intervention alleging in substance that on November 1, 1904, said oil company had executed and delivered to the St. Louis Union Trust Company, of St. Louis, Mo., a corporation, as trustee its deed of trust by tbe terms of which said bank acquired a lien upon the property and assets of the oil company to secure to said bank the payment of 50 bonds for the sum of $1,000 each, bearing interest, and that the same had been duly recorded. That said oil company had made default, and upon the request of said bank the said trustee had advertised the property for sale according to the terms thereof, and during said time the said trustee applied to the United States Circuit Court, Northern district of Texas, for the appointment of a receiver, which was granted August 12, 1910, and the receiver shortly thereafter qualified and took possession of said property and on December 6, 1910, in pursuance of said deed of trust and the law of Texas, sold said property at public auction for cash to P. D. Whiting for the use and benefit of appellant bank, and said Whiting, acting for appellant bank, sold said property to James Newman, who purchased in good faith. That said bank would be subjected to great loss, etc., if said Dorsett retained possession of the property as receiver, and that said bank was to execute bond and make deposit to prevent loss or damage, and asked that said receiver be discharged and the property turned over to said Newman upon said bank making the deposit, and that said deposit be held subject to such orders, final judgment, and decrees as might be made in the case, and for all special and general relief.

On April 11, 1911, upon hearing the plea of intervention, it was ordered that the bank deposit with the clerk of the court $8,000; that the costs of the receivership in the case of the St. Louis Union Trust Company against the oil company be allowed to the receiver, Thomas Trammell, and attorney’s fees amounting to about $700 and the cost of the receivership in this court hereinafter to be ascertained shall be paid out of said deposit; and that the balance of said deposit be held subject to the orders to be made in the case, provided no part shall be used to pay any claim hereinafter filed in this cause; and it was further ordered that the property be turned over to Newman by the receiver, Moore O. Dorsett, and that he make final report to the court.

On April 14, 1911, Dorsett, as receiver, filed report in which he reported that he had delivered said property to Newman. On the date last aforesaid appellees filed their amended original petition, upon which they went to trial, setting out virtually the same items as in the original petition, charging a conversion of said property by said bank, and that it was entitled to collect out of the fund in court the full amount of its debt.

The bank answered, alleging the indebtedness to it by the oil company of $50,000, its lien by trust deed, the purchase| by Whiting, the conveyance to Newman, and confirmation of the sale and delivery of said property to Newman by judgment of the court of date April 11, 1911, and the superiority of its lien over appellees’ claim.

The oil company answered by general demurrer and general denial and controverting by affidavit the verified account of appellees attached to their third amended original petition. On the 2d of December, 1912, appellees filed in the trial court their first supplemental petition in which, among other things, they charged the appellant bank with systematic attempt to conceal the property of appellant cotton oil company and appropriated it to the bank’s use, with fraudulently having a receiver appointed by the federal court and causing a federal receiver to be placed in charge of the property of appellant cotton oil company, and in defiance of the receivership of the court below causing the property in question to be sold and the bank under its alleged deed of trust and afterwards selling to Newman, which they alleged was done to defraud appellees. Appellant bank on the same day filed its first supplemental answer, including general demurrer, general denial, and special answer denying in substance the conversion of any part of the property in question or any attempt to defraud the appellees, that the sale of the property by the trustee was legally made; that the receivership in the federal court was only in aid of said sale, was authorized by the said deed of trust, and was only for the purpose of preserving the property until it could be sold. It further alleged in said supplemental answer that the sale of the property made by" said trustee to satisfy appellant bank’s indebtedness was expressly ratified and confirmed by said court after the property in question had been sold and was in the possession of the receiver of this court, and that the action of this court in so ratifying and confirming said sale finally determined the rights of the parties and prayed that it be discharged with its costs. The cause was tried before a jury upon special issues submitted by the court at the request of appellees. Upon said special issues the jury made a finding of facts in which the jury found for the appellees in the sum of $5,153.79. Upon motion of appellees the court rendered judgment against appellant Sweetwater Cotton Oil Company for the amount of the verdict and directed that the same be paid out of the fund deposited in court by appellant national bank. Prior to the rendition of said judgment, appellant bank filed its motion for judgment on the facts found by the jury directing the money deposit in court to be paid to it and that it recover its cost. From the judgment of the court, the bank has appealed.

The appellant bank complains of the action of the court in not directing the jury to return a verdict for it and submits the following proposition: “The trial court having jurisdiction of the property and the parties, and the court having jurisdiction to cause the sale of all the property through its receiver, and the sale of the property having been made and duly reported to the court and pleaded, and the matter of the confirmation of the sale as reported having been considered and acted upon by the court, and the court having by judgment, as prayed for in the pleading reporting the sale, ordered the delivery of the property, then in the possession of its receiver, to Newman, the vendee of appellant bank, by reason of the sale so made and reported, and the said property having been delivered by the court’s receiver to said Newman in obedience to said judgment, the sale ■of said property for the price reported, to wit, $50,000, was • necessarily confirmed by the court; and, by permitting appellant bank to retain all of said purchase price except $8,000, the court acted upon and recognized said sale and confirmation, and the $8,000 deposited in court was retained as the balance of the proceeds of the property to be distributed by future orders and judgments of the court according to the rights of the parties; and, the lien of appellant bank being superior to the demand of the appellees, the court should have ordered the balance remaining after the payment of costs paid to said bank; its failure so to do upon proper timely motion constitutes error for which the cause must be reversed and rendered or remanded.”

The bank, among other things, in its petition of intervention, pleaded as follows: “That the amount claimed, and for which plaintiffs in the above-entitled suit ask judgment against said defendant the Sweetwater Cotton 'Oil Company, and for which they seek to establish a lien on the above-mentioned property, is only the sum of $5,056.86; that there is no other claim against said Sweet-water Cotton Oil Company or charge against the property therein mentioned except the costs of the receivership in the Circuit Court of the United States for the Northern district of Texas and the costs of receivership in this court up to the present time; that your in-tervener is willing and hereby offers to deposit in this court such sum as the court may deem just and proper in the premises. Said sum to be held subject to such orders and final judgment or decree as to the disposition thereof as may hereafter be made in the case.”

The court complied with the bank’s request upon condition that it would make a deposit in the registry of the court of $8,000. The deposit was made, and in lieu thereof the court released to the bank the property which was of the value of $70,000. It appears from the record, we think, that the value of the property was enough to pay both claims; there being none other, except costs. The ap-pellees had a lien on the property, and the court may have taken the view that the property was sufficient; and, as .the bank had taken possession of the property on an order of the court granted on its solicitation, it is not in a position to complain of the payment of appellees’ claim out of said deposit. There was no condition that said deposit be applied to any debt except the costs of receivership, and the “balance to be held subject to such orders, final judgments, and decrees to be made in the case.” It was provided, however, “that no part thereof shall be used for the purpose of paying any claim” thereafter filed in said cause. This latter clause can in no sense apply to appellees’ claim, as it was already being litigated in the ease.

We take it that, appellees having established a contractor’s lien on the property to the extent of machinery furnished and repairs made, the court may have concluded to lessen expense by closing the litigation and said in effect, in the language of appellees’ attorney, “As there are no other creditors, if you will make a deposit sufficient to pay'plaintiffs’ claim and the costs, I will discharge the" receiver.” However this may be, we are of the opinion that under the evidence the judgment in the particular complained of was correct.

Complaint is made that repairs and improvements made by appellees for the second term of the lease are not chargeable to the oil company; therefore the court erred in permitting proof to establish such charges. The terms of the contract of lease entered into between the oil company and appellees were that it should be for a period of ten months; that appellees should take immediate possession and advance money deemed by them necessary to put said plant in running order and condition and for insurance; that the money so advanced was to be considered a loan to the oil company, which the oil company promised to pay with 8 per cent, interest, and said last contract further provided: “Second parties are hereby given an option to renew this lease for twelve (12) months on same terms, provided first party is notified in writing of their election to exercise this option before the expiration of this contract.” Appellees elected to renew the lease and did operate the plant for the second term as stipulated in said contract. Under the terms of the contract, the oil company became liable to appellees for all moneys expended by them in putting in necessary repairs to put the plant in running condition, which is not controverted. Appellees having renewed the lease for the second term, they had the right to make the necessary repairs to put it in running condition for the second term, and the oil company became liable for all moneys so expended.

The assignments of error Nos. 2 and 3 do not conform to rules 24 and 25, and we are justified in treating them as waived. They do not distinctly specify the ground of error relied on. Nor do they “point out that part of the proceeding contained in the record, in which the error is complained of in a particular manner,” “with such reasonable certainty as may be practicable in a succinct and clear statement.” However, we will say that the error, if any, is not excluding ap-pellees’ books from being introduced as evidence on the ground that they had not been properly proven up was harmless.

Appellees’ petition contained an ite’mized account fully verified as réquired by statute. Said account showed every item sued for and was introduced in evidence without objection. The testimony of W. W. Birge and other evidence fully established appellees’ claim, and no* injury resulted to appellant by the introduction of said books. We have considered all of the other assignments of error presented but find no reversible error. The evidence fully supports the verdict of the jury, and the judgment is affirmed.

Affirmed.


author: RASBURY, J.

text:
    ST. LOUIS & S. F. R. CO. v. WHITE et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.
    Rehearing Denied Dec. 6, 1913.)
    1. Carriers (§ 227) — Transportation of Cattle-Rough Handling — Evidence — Pleading and Proof.
    Where, in an action against a carrier for injuries to cattle due to rough handling' en route, the complaint alleged that the cattle while on defendant’s cars were handled in a rough manner, the cars being rammed and jammed together, bruising and injurying the cattle, etc., evidence that the rough handling was due to the necessity of often stopping the train suddenly because another of defendant’s trains, preceding that on which the cattle were being transported, was being pulled by a broken-down engine, which would suddenly be overtaken by the cattle train, was admissible, though plaintiff established a prima facie case by proving delay and rough handling.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.]
    2. Continuance (§ 31) — Grounds—Evidence —Surprise.
    In an action for injuries to cattle by rough handling en route, defendant was not entitled to a continuance for surprise because of the admission of evidence that the rough handling was due to sudden stoppages, on account of a preceding train being pulled by a broken-down engine.
    [Ed. Note. — Eor other cases, see Continuance, Cent. Dig. §§ 96-98; Dec. Dig. § 31.]
    3. Carriers (§ 213) — Transportation oe Cattle — Delay—Damages — Market Decline.
    Where a carrier, contracted to transport and deliver cattle in time for a particular market, it was bound to make the delivery in time, so that the cattle might be fed and watered, according to custom, before being placed on the market; and hence, where there was no time for this before the market closed after the delivery at destination on the day the cattle were to be sold, the carrier was liable for a loss due to decline in the market on the succeeding day.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. § 213.]
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Action by J. B. White and others against the St. Louis & San Francisco Railroad Company and others. Judgment for plaintiffs against the St. Louis & San Francisco Railroad Company alone, and it appeals.
    Affirmed.
    Andrews, Ball & Streetman, of Houston, and A. H. Dashiell, of Terrell, for appellant. Wynne, Wynne & Gilmore, of Wills Point, for appellees.

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

   RASBURY, J.

At a former term this case was affirmed without considering the assignments of error for the reason that same did not comply with rules 24 and 25 (142 S. W. xii), recently promulgated by the Supreme Court for the government of the Courts of Civil Appeals. Subsequent to the affirmance of the case the Supreme Court held the rules so promulgated to be in violation of articles 2061 and 2062, Revised Statutes 1911, in requiring litigants to set out in a motion for new trial alleged error in giving or refusing charges or other action of the trial court appearing of record. Missouri, Kansas & Texas Railway Co. v. Beasley. (Sup.) 155 S. W. 183; Benton v. Kuykendall et ux., 160 S. W. 438, decided by this court October 25, 1913. For the reasons stated in the opinion last cited, our former opinion in this case will be withdrawn, the assignments considered, and what we here say stand as our opinion in the case.

Appellee White sued appellant and Texas Midland Railroad and Paris & Great Northern Railroad Company for $1,259.04, damages alleged to have resulted to a shipment of cattle consigned by appellee to said carriers for transportation to St. Louis, alleging such damages to be due to rough handling and delay, and upon trial before jury recovered verdict for $755.42 against appellant. The trial court instructed verdict for the Texas Midland Railroad and the Paris & Great Northern Railroad Company.

In lieu of a statement of the pleading and the evidence, we will, whenever it becomes necessary, state the same while considering the particular assignment of error.

The first assignment complains of the action of the court in permitting appellee’s witnesses to testify upon trial that the cause of the rough handling was due to the fact that ahead of appellant’s train containing the cattle, while en route to destination, was another of its trains pulled by a broken-down or defective engine, which would suddenly stop and be overtaken by .the train hauling appellee’s cattle, compelling it, in turn, to suddenly stop, and by reason of which appellee’s cattle would be thrown to the floor and upon each other, and to which their injuries were, in a large measure, attributable. The precise point is that, appel-lee having alleged only rough handling and delay, proof of the cause of such rough handling was inadmissible; in short that the allegations and proof did’ not correspond. It is of course elementary that the proof in a suit at law must correspond with the allegations of the complaint. Measured by that rule, we are of opinion that the evidence complained of was properly admitted. The allegation, in substance, is that ^ the cattle while on appellant’s cars were handled in a very rough manner; the cars containing them being rammed and jammed together, bruising and injuring them, etc. We think appellee established a prima facie case when the delay and rough handling was shown, yet when appellee assumed the additional and unnecessary duty of also showing the cause of such rough handling and ramming and jamming of the cattle, it cannot intelligently be maintained that such proof was in any respect a variance from the allegations of the complaint. The general rule is that, in order to constitute material variance between the allegata and probata, the variance must be in the nature and elements of the cause of action as distinguished from proof of circumstances, incidents, or causes which contributed to the alleged cause of action, but not particularized in the complaint. By way of illustration, in the case at bar the claim or cause of action was rough handling. Proof of the facts, incidents, or circumstances wdiich caused the rough handling, while not necessary to maintain appellee’s cause of action, was in no sense proof of facts tending to establish a cause of action at variance with the one alleged. Appellant cites as in point T. & P. Ry. Co. v. Stewart, 43 Tex. Civ. App. 399, 96 S. W. 106. As we interpret that opinion, the court there held that if the plaintiff in that case desired “to prove that the car in which Ms horses were shipped was defective and resulted in injury to them,” he should have so alleged in his pleading. Here it is not asserted that the cattle were injured by reason of the defective or broken-down engine on the train ahead of the train containing appellee’s cattle, but by carelessly and negligently and suddenly stopping the ears containing ap-pellee’s cattle, caused by running in too close proximity to or in suddenly overtaking the train ahead pulled by the defective or crippled engine. We think the assignment should be overruled.

The second assignment complains of the refusal of the court below to permit appellant to withdraw its announcement of ready and continue the case because of surprise at the testimony of the witnesses mentioned in our discussion of the first assignment of error, and relating to the cause of the sudden stops of the train transporting appellee’s cattle. For the reason stated in discussing the first assignment of error, and because the proof of the cause of the stops was reasonably to be anticipated and in law is insufficient to constitute surprise, this assignment is also overruled. S. A. & A. P. Ry. Co. et al. v. Martin et al. 49 Tex. Civ. App. 197, 108 S. W. 981; St. L. & S. F. R. Co. v. Cartwright, 151 S. W. 630.

The third, fourth, and fifth assignments of error in effect attack the verdict and judgment on the ground that the evidence is insufficient to support same. We have carefully read the testimony incorporated into the brief of counsel for both appellant and appel-lee, and in our opinion the evidence on the three material issues in the case — that is delay en route, rough handling, and decline in the market — sustains the verdict of the jury. We might, in deference to counsel, analyze and compare the evidence of both sides in order to present the reason for our conclusions, but, since it is a matter finally for this court to determine after reading the evidence, we do not believe we will be expected to do more than carefully examine the same and state our conclusions, which are that it cannot be said, from an examination of the evidence, that the verdict of the jury on either issue is manifestly against the evidence, or inadequate with or contrary thereto; and, until the evidence presents such a case, we are without authority to disturb the verdict.

The sixth and seventh assignments of error also attack the verdict and judgment on the ground that the evidence was insufficient to sustain same. The point made under said assignments is that appellee pleaded and offered testimony to prove that there was a decline in the market of 15 cents per hundred pounds between Monday, the day the cattle should have been delivered and sold, and Tuesday, the day they were actually sold, and recovered for such decline. The evidence shows a decline of 15 cents per hundred pounds between the dates indicated. It also shows that the cattle should have arrived early Monday morning, but were in fact delivered Monday at 2:30 p. m., and that the market closed at 3 p. m. Evidence also shows that the cattle arrived too late Monday to enable those in charge thereof to profitably place them upon the market, since it would have required an hour or an hour and a half to shape them up for market.

These assignments really challenge the legal right of appellee to recover for a decline in the market, rather than that the evidence is insufficient, since it is undisputed that there was a decline in the market, as we have just stated. Upon this question the Sixth Court of Civil Appeals has held, in C., R. I. & G. Ry. Co. v. Young & Ball, 107 S. W. 127, as follows: “Alluding to the record, the evidence shows that the cattle were delivered at the stockyards, the place of the stock market, by the Belt Railway Company, the agent of appellant, at 2:20 p. m., and the employSs of the stockyards company unloaded the cattle into pens selected by the consignee. The stock market closed at 3 o’clock p. m. Appellees ’ explain that, before cattle are ready for sale, after they are unloaded from the cars, they should be watered and fed, and given some time in which to rest, and that this could not have been done before the market would have closed for the day. We think that the record in this ease shows a delivery of the cattle by the appellant through its agent, the Ft. Worth Belt Company, to the consignee that same evening, and within time for the stock market that evening. A carrier of live stock is not liable for the damages occurring to the live stock after the same have been actually or legally delivered to the shipper or consignee. If ap-pellees shipped the cattle for the purpose of selling same on the special market of October 17th, and the cattle were delivered at 2:20 p. m., in time for that evening’s market, and appellees delayed the sale on that market, then the railway company was not chargeable with any subsequent damage or loss occurring after the delivery; nor could appel-lees claim that, because the cattle could' not be rested and fed and watered by them after the delivery and before the market closed, it was not a delivery in time for the market of that evening.”

The Third Court of Appeals, upon the same question, in F. W. & D. G. Ry. Co. v. Albin, 142 S. W. 933, has held as follows: “Appellant’s main contention is that, as the proof shows that the cattle were delivered to the consignees in time for sale on the Ft. Worth market in the afternoon of December 13th, if the consignees had not taken time to feed and water them before offering them for sale, therefore appellant cannot be held liable for the loss which occurred on account of the cattle’s being held over in pens until the forenoon of the 14th, and Railway Co. v. Ball, 107 S. W. 127, is cited in support of that contention. That case seems to support the proposition urged; but, with due respect to the Court of Civil Appeals which rendered that decision, if it was made upon a state of facts similar to the facts presented in this case, we believe the decision is unsound and should not be followed. The proof in this case shows that when cattle are shipped to market, and after they are delivered by the carrier to the consignee, it is customary, in the usual course of business, to feed and water them before placing them upon the market; and we hold that, when a carrier contracts to deliver live stock or other property at the place of destination in time for sale on the market of a particular day, the contract signifies that the delivery must be made within time to prepare the property for and place it upon the market in the usual and customary manner. It is perhaps a matter of common knowledge, and no doubt carriers of live stock to market are aware of the fact that, when such stock have reached their destination, their weight will be materially increased by feeding and watering them, and their value thereby .enhanced, before offering them for sale by weight.”

The reasons for the conflicting rules adopted by the two courts are clearly and succinctly stated in the opinions from which we have quoted, and we can add nothing thereto. Deeming the views in the latter ease as more in consonance with our views, we adopt same in disposing of the assignments under discussion.

We have carefully examined the remaining assignments of error, some of which present, in different manner, issues already discussed, and because same in our opinion present no reversible error they are overruled.

The judgment is affirmed.


text:
    DELAWARE INS. CO. v. WALLACE.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 8, 1913.
    Rehearing Denied Nov. 29, 1913.)
    1. Insurance (§ 372) — Fire Insurance — Change of Location of Property.
    When insured property is removed from the location specified in the policy, without the knowledge or consent of the insurer, the insured cannot ordinarily recover; but there may be a waiver of the provision, limiting the liability to such location, or the insurer may be estopped to set it up.
    [Ed. Note. — For other cases, see Insurance. Cent, Dig. § 941; Dec. Dig. § 372.]
    2. Evibence (§ 148) — Admissibility—Telephonic Conversation.
    In an action against a fire company, where the defense was that the goods had been removed from the location specified in the policy and the insured claimed that the insurer’s agent agreed to change the policy to cover the new location, evidence of a telephonic request upon the agents of the insurer to change the location specified in the policy, and their agreement to do so, is admissible where the facts and circumstances were sufficient to warrant a finding that the communication was in fact between insured and the agents of insurer.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 438; Dec. Dig. § 148.]
    3. Insurance (§ 386) — Fire Insurance — Defense.
    In an action on a fire policy, where the defense was that the goods had been taken from the location specified in the policy, the insured, upon showing that the insurer’s agent agreed to his request to change the policy so as to cover the place where the loss occurred, is entitled to recover, even though no change had actually been made on the policy, and though the policy provided that none of its provisions could be waived unless in writing upon or attached to the policy.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1024; Dec. Dig. § 386.]
    4. Insurance (§ 163) — Fire Policies — Construction.
    An insurance policy upon household and kitchen furniture which was to run for three years includes furniture acquired subsequent to the issuance of the policy.
    [Ed. Note. — For other cases, see Insurance. Cent. Dig. §§ 339-346; Dec. Dig. § 163.]
    Error from Dallas County Court; W. F. Whitehurst, Judge.
    Action by Carl Wallace against the Delaware Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Wm. Thompson and Will C. Thompson, both of Dallas, for plaintiff in error. Mea-dor & Davis, of Dallas, for defendant in error.

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

   RASBURY, J.

Defendant in error sued the plaintiff in error upon a fire insurance policy for $650, covering his household furniture, etc., alleging the issuance of the policy December 11, 1909, for a period of three years therefrom, the loss of the insured property, demand for payment, and refusal. The plaintiff in error answered by general denial and special plea, denying liability on the ground that by the provisions of the policy the furniture, etc., was insured only while contained in the residence of the insured on Terrace Drive in South Dallas, Tes., while the loss occurred while the goods were situated in a residence on Windmere avenue, Oak Cliff, Dallas, Tex., to which place same had been removed without the consent of the company. Defendant in error in his original petition anticipated the company’s defense, and alleged that he had notified the company of his change of residence, and requested it to make such notations upon his policy or its records as would protect him in any loss, and that it promised to do so, and that he assumed it had done so. Upon trial by jury defendant in error recovered verdict for the amount of the policy, interest, and costs of suit. Judgment was entered in accordance with the verdict, from which the plaintiff in error has appealed.

The evidence warrants the following conclusions of fact: Miller & Stemmons were the duly authorized agents of the plaintiff in error at Dallas, Tex., and policies issued at Dallas by their terms were not valid until countersigned by them. They did countersign the policy sued upon. The policy insured defendant in error’s household goods for a period of three years from December 11,1909, in the sum of $650, “while located and contained” in his place of residence on Terrace Drive in the city of Dallas, “and not elsewhere.” On June 1, 1911, Wallace changed his place of residence to Windmere avenue in said city, removing his household goods to that place. At the time of changing his residence he directed his bookkeeper, Mr. Fryar, to have the company’s agent to make a proper “transfer.” Fryar called up Miller & Stem-mons, the company’s agents, over the telephone, and asked for the insurance agent and when he got him on the telephone told him to transfer the Carl Wallace policy on household goods from Terrace Drive to Windmere avenue, and the person answering the telephone assured him he would do so. Miller & Stemmons had about 12 or 14 employés at that time, and it was customary for customers to telephone, requesting transfers of their policies. The policy provided that none of the conditions or provisions of the policy could be waived unless same was written upon or attached thereto. No such waiver was written upon or attached to the policy sued upon.

The first assignment of error complains of the refusal of the trial court to direct a peremptory verdict for the plaintiff in error, and under said assignment the proposition is urged that when insured property is removed from its specified location, without the knowledge or consent of the insurance company, the insured cannot, in case of loss, recover. As bare legal doctrine the proposition is of course sound. British American Insurance Co. v. Miller, 91 Tex. 414, 44 S. W. 60, 39 L. R. A. 545, 66 Am. St. Rep. 901; 19 Cyc. 740. But there may be a waiver of such provision, estoppel to assert it, or agreements affecting it without entailing limitations upon the general rule. 19 Cyc. 777.

This leads to a consideration of the plaintiff, in error’s second assignment of error, which, in effect, challenges the sufficiency of the testimony to sustain the finding of the jury that the promise to approve the change of location of the property was made by one having authority to do so. As we have shown in stating the facts, Miller & Stemmons were the agents of the company, and had authority to make the indorsement upon the policy permitting a change in the location of the property. It was customary with them to take such requests over the telephone and act upon same. Defendant in error made just such a telephonic request at the office of Miller & Stemmons, and the fact is not disputed, except inferentially. Over the telephone of Miller & Stemmons he received the assurance that the indorsement would be made. This testimony was admissible under the rule announced in American National Bank v. First National Bank, 41 Tex. Civ. App. 392, 92 S. W. 440, permitting the detailing of telephonic communications to the jury when the facts and circumstances adduced in testimony are sufficient to authorize a finding by the jury that such communication was between the parties litigant or their agents. The jury did find that a request for a change of location of the insured property was made. This left nothing to be done by defendant in error, and whether the indorsement was actually made upon the policy or not in no respect affects his right to recover in case of fire, in the absence of other defenses. Ætna Insurance Co. v. Eastman, 80 S. W. 255.

The fourth assignment of error asserts that the verdict of the jury is not supported by the evidence. This assignment is based upon the fact that while a loss of over $2,000 is shown, defendant in error could only show that about $500 of the loss was upon property owned by him at the time of the writing of the policy. The policy by its provisions insured defendant in error against loss by fire “to an amount not exceeding $650.00 on the following described property, while located and contained as described herein, * * * to wit: Household and kitchen furniture.” The foregoing is all that is to be found in the policy relating to the property intended too be insured. It does not afford much assist-" anee in aid of the issue.

It was said, however, in Moriarty v. United States Fire Insurance Co., 19 Tex. Civ. App. 669, 49 S. W. 132, that “in order for after-acquired property to be covered by a policy theretofore issued, such property must be of the character of that described in the policy, and it must have been in contemplation of the parties, at the time of the issuance of the policy, that such after-acquired property would be covered by its terms.” In the case at bar all property acquired by Wallace after the issuance of his policy was of the character of that insured, and in that respect meets the rule. We think it also clear that it was contemplated by the plain-' tiff in error and defendant in error that the policy should cover all household goods, etc., subsequently purchased. There is no express provision in the policy, excluding after-acquired property of like character from the protection of the policy, to prevent the application of the rule stated. The fact that the policy extended over a period of three years is persuasive of such construction, since in that period of time the mutations probable in household goods are many, and it is reasonable to presume that the parties intended that the policy during that time should protect defendant in error in case of fire against loss on such goods as were actually on hand at the time of the fire.

It must be conceded that by analogy the case of Phoenix Insurance Co. v. Dunn, 41 S. W. 111, holds a contrary rule, but we think the better rule, and the one that follows the trend of the great weight of modern authority, is the one just quoted; and, if there is such conflict, we feel constrained to adhere to the rule announced in the Moriarity Case.

We have carefully considered the remaining assignments of error, which but present the points already considered in a different manner, and, finding no reversible error therein, same are overruled.

The judgment is affirmed.


author: TALBOT, J.

text:
    FIRST STATE BANK OF HUBBARD v. HUBBARD FARMERS’ OIL & GIN CO. et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1913.)
    1. Receivers (§ 19) — Grounds for APPOINTMENT — IN SOLVENT CORPORATION.
    Where, in an action against a corporation on a note and to foreclose the mortgage securing same, certain stockholders of the defendant corporation petitioned for a receiver, and alleged and proved not only that the corporation was insolvent and that they were stockholders, and that the interests of all creditors of the corporation could be best protected by a receiver, but also that they were creditors of the corporation, a receiver was properly appointed.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 27; Dec. Dig. § 19.]
    2. Receivers (§ 32) — Petition for Appointment— Sufficiency.
    Where certain creditors of the defendant corporation, who were also stockholders and defendants in a suit to foreclose a mortgage against it, applied for a receiver, “and for any and all relief either in law or equity to which they may show themselves entitled,” and their allegations and proof were sufficient, a receiver should have been appointed, though they did not specifically ask judgment on their claim.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 45-50, 64; Dec. Dig. § 32.]
    Appeal from District Court, Hill County; O. L. Lockett, Judge.
    Action by the First State Bank of Hubbard against the Hubbard Farmers’ Oil & Gin Company and others. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Wear & Frazier, of Hillsboro, for appellant. H. C. Bishop, of Hubbard, and Collins & Cummings, of Hillsboro, for appellees.

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

   TALBOT, J.

On July 7, 1913, appellant filed its petition in the district court of Hill county, Tex., to the September term thereof, to recover on a note for $10,025, dated September 11, 1912, due on demand, with interest at the rate of 10 per cent, from maturity and 10 per cent, additional for attorney’s fees; also to recover the sum of $7,604.10 due upon overdrafts, and to foreclose the mortgage lien executed by the defendant Hubbard Farmers’ Oil & Gin Company, to secure the payment of said several sums upon the real estate described in plaintiff’s petition. The appellees W. C. Horn, Eb Johnson, J. A. Madera, Percy Wood, W. E. Berry, and Will Bankston were also made parties defendant; it being alleged that they, by the terms of a written obligation which they had signed and which is set out in plaintiff’s petition, had agreed and bound themselves to pay or to become personally responsible for the indebtedness due the plaintiff by the Hubbard Farmers’ Oil & Gin Company. On July 17, 1913, the appellees W. C. Horn, Eb Johnson, J. A. Madera, Percy Wood, W. E. Berry, and Will Bankston filed their original answer, in which, among other things, they alleged that they were stockholders in the Plubbard Farmers’ Oil & Gin Company, a corporation, and that such corporation was not only indebted to the appellant, but was indebted to divers and sundry other persons in large amounts in excess of the assets owned and held by said corporation, and that said corporation was in imminent danger of insolvency and was in fact insolvent (said answer giving a list of the indebtedness due, aggregating a total of $34,129.10); that, of the total amount of said indebtedness, $5,-000 was due W. C. Horn, Eb Johnson, W. E. Berry, and Percy Wood, and $2,500 due W. E. Berry, Bob Pritty, G. F. Houx, and Will Bankston; and that $9,000 was due Eb Johnson and Bob Pritty, evidenced by promissory notes and secured by a mortgage on the property of said Hubbard Farmers’ Oil & Gin Company, said mortgage being an inferior lien to the lien held and sought to be foreclosed by appellant. Said defendants further alleged that the value of the property of said Hubbard Farmers’ Oil & Gin Company was about $25,000, and that, unless a receiver should be appointed, the assets of said corporation would be dissipated, and the creditors of said corporation caused to suffer serious and irreparable injury; that the property of said oil and gin company consisted of oil mill property; that said company did not have funds with which to operate the same, and the oil mill plant and machinery was standing idle, because of said fact; that the season for the operation of oil mills was near at hand; and that, unless a receiver should be appointed, the appellees, as well as the defendant corporation, would suffer serious and irreparable loss. Said answer also alleged that the oil mill business, when properly conducted, in the town of Hubbard City, was a profitable business, and that, if the court should direct the operation of the same under a competent man, large sums of money could and would be realized as profits sufficient to discharge the indebtedness due appellant as well as other indebtedness, due by said corporation, and that the value of the oil mill property would be greatly enhanced, if put into operation during the approaching season and pending the determination of this litigation. The answer also alleged that the defendant Eb Johnson and Bob Pritty are interested in said oil mill property, not only by reason of being stockholders in said corporation, but are the owners and holders of a valid and subsisting lien against said property, and they allege that, if said property should be placed in the hands of a receiver and properly operated and managed, the profits arising from said business will be sufficient to pay the plaintiff’s debt and to satisfy the lien owned and held by them against said property. The prayer of said answer was for the appointment of a receiver and for any and all relief, either in law or in equity, to which they may show themselves entitled. On July 25, 1913, appellant filed a supplemental petition, contesting the right of the said appellees to the appointment of a receiver. On August 8, 1913, Hon. O. L. Lockett, district judge, appointed O. O. Condor receiver to take charge of all the property of the oil mill, with authority to run and operate the mill “during the litigation in this case,” fixing his bond at $12,000. On August '10, 1913, appellant filed a motion to vacate and set aside the order of the court appointing the receiver, which, on August 12, 1913, was overruled and appellant excepted and gave notice of appeal. On August 22, 1913, appellant filed an appeal bond and now has the case befqre this court.

The transcript shows that appellant filed two assignments of error, both of which raise practically the same question, and in their brief counsel for appellant present the second and contend that the court erred in appointing a receiver to take charge of and to operate the mill in question, because: (1) The indebtedness due the plaintiff by the defendant Hubbard Farmers’ Oil & Gin Company, and the lien given to secure the same not being questioned, and it not appearing that the plaintiff was in any manner derelict, and the parties making application for a receiver being stockholders and not seeking to establish any debt and asking no relief of any kind except the appointment of a receiver, the appointment should not have been made; (2) the applicants being stockholders in the defendant Hubbard Farmers’ Oil & Gin Company, seeking no relief except the appointment of a receiver, and the appointment of a receiver being only an ancillary remedy, the appointment should not have been made; (3) the applicants being stockholders in the defendant Hubbard Farmers’ Oil & Gin Company, and asking for the establishment of no debt against said company and seeking no relipf as against said company, it is manifest that they are acting in the premises for and as agents of the defendant company, and it is improper to appoint a receiver at the instance of the defendant corporation; (4) it nof being shown that by the appointment of a receiver it was possible or probable to raise the money to operate the machinery during the season of 1913-14, it was improper to take from the appellant the property upon which it had been given a lien and thus delay it in the collection of its debt; (5) to authorize the appointment of a receiver the petition must not only show well-grounded apprehension of immediate injury to the petitioner, but that he will also probably recover. In view of the record sent to this court, we do not believe the contentions of appellant should be sustained.

In the order appointing the receiver the court made the following findings of fact, which were warranted by the evidence adduced, namely:

“1. The indebtedness of the oil and gin mill company is about $35,000, and the assets of the mill company is $24,000. Practically all o"f the indebtedness is past due, and there is no money on hand or accessible to meet the obligations of the oil mill, and therefore the oil mill is found to be insolvent.
“2. The court further finds that the defendants W. C. Horn, Eb Johnson, J. A. Madera, Percy Wood, W. E. Berry, and Will Bankston are all directors of the said oil mill company and have also signed a written obligation guaranteeing the indebtedness of said oil mill to the plaintiff in this case. And that the defendant Eb Johnson and Bob Pritty are creditors of said oil mill in the sum of $9,000, and have a second mortgage on the mill property in controversy, and that said guarantors are liable to said state bank for the indebtedness of the said oil mill company in the sum of $-.
“2½. The court finds from the evidence that this mill will be shut down and not operated unless a receiver is appointed, and, if the property shQuld be sold while it is not being operated, it will bring from one-fourth to one-third less than its value.
“3. That the indebtedness due the plaintiff in this ease amounts to about $18,000, and the indebtedness on which the said defendants are liable as guarantors amounts to about $-. The second mortgage amounts to the sum of $9,000.
“4. The court finds from the undisputed evidence in the case that the present management of said oil mill has no money and can obtain none with which to operate said mill during the present season and during the litigation in this case, and if a receiver is not appointed the mill will be shut down and not run during this present cotton season.
“5. The court further finds from the evidence that, if the proper receiver is appointed, he can and will secure the necessary funds to operate said oil mill during the. litigation, and the evidence further shows that if a proper manager is appointed that the mill can be run at a profit.”

Upon these conclusions of fact the court expresses the opinion that it was his duty to appoint a receiver to take charge of the oil company’s properties and to run and operate its mill pending the litigation in this case, and in this opinion we concur. The pleadings of the appellees alleged that the Hubbard Farmers’ Oil & Gin Company, a corporation, was insolvent; that they were stockholders and interested in the property of said corporation as creditors; that appel-lee Eb Johnson and Bob Pritty as stockholders were creditors of said oil and gin company in the sum of $9,000 and held a second mortgage lien on the mill property in controversy to secure the payment of said indebtedness; and that serious and irreparable injury would result to them unless said property was placed in the hands of a receiver. The truth of these allegations is affirmed by the court’s findings, and the findings are supported by the evidence. The court finds, as shown above, that, according to the undisputed evidence, the present management of. the mill has no money and can obtain none with which to operate it during the litigation brought about by the institution of appellant’s suit, and that if a receiver is not appointed the mill will be shut down and not run during the present cotton season; that if the proper receiver is appointed he can and will secure the necessary funds to operate the mill, and that under proper management the mill can be run at a profit. The debt of Johnson and Pritty is alleged, the lien on the property of the oil and gin company is alleged, and appellees pray for relief. These allegations and conclusions of fact of the court, which are supported by the evidence, clearly distinguishes, in our opinion, the present case from the cases cited by appellant in support of his claim for a reversal.

It may be conceded that, if the applicant for the appointment of a receiver shows no cause of action, no right exists to have the appointment made, and that mere insolvency of a corporation or imminent danger of insolvency is not a cause of action which will, under our statute, entitle a stockholder, simply as such, to have a receiver appointed; but appellee Johnson, who, in conjunction with the other appellees, sought the appointment of a receiver in this case, shows himself and Bob Pritty to be not only stockholders of the Hubbard Farmers’ Oil & Gin Company, but lien creditors thereof, and that unless a receiver is appointed to take charge of and to operate its mill they, as such creditors, will be seriously and irreparably injured. The right therefore to have a receiver appointed in this case is not predicated upon the sole ground that appellees are stockholders of the defendant company and that said company is insolvent, or in imminent danger of insolvency, but in addition thereto, upon the ground that they have a cause of action against the corporation independent of the receivership.

Appellees do not, as claimed by appellant, specifically ask judgment on their alleged claim; but we do not regard this as. controlling a decision of the question. They do set up that they are creditors, as well as stockholders, and allege the debt and lien of Eb Johnson and Bob Pritty, and pray for the appointment of a receiver, “and for any and all relief, either in law or equity, to which they may show themselves entitled.” It cannot be successfully contended that under the pleadings and prayer for relief these appel-lees would not be allowed to establish in the receivership proceedings their debt and the lien of Johnson and Pritty and recover thereon if the facts they allege are true.

Believing the appointment of a receiver under the pleadings and proof and statute and decisions of this state was authorized and proper, the judgment of the court below is affirmed.


author: FLY, C. J.

text:
    POLEMANAKOS v. AUSTIN FIRE INS. CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 5, 1913.
    Rehearing Denied Dec. 3, 1913.)
    1. Insubance (§ 244) — 'Cancellation—Return OP UNEARNED PREMIUM — NECESSITY.
    Under a provision of the New York standard fire insurance policy that it shall be canceled at any time by the company by giving notice of such cancellation, and that if it shall be canceled the unearned portion of the premium shall be returned on surrender of the policy, the repayment of the proper proportion of the premium, unless waived, is essential to a valid cancellation by the company, and notice ■without such repayment or a tender of the amount is ineffectual.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 194, 524L-530; Dec. Dig. § 244.]
    2. Insurance (§ 246*) — Cancellation by Mutual Consent.
    Regardless of the provisions of a fire insurance policy as to cancellation, the policy may be canceled by the mutual consent of the parties thereto.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 246.]
    3. Insueance (§ 668) — Action — Question bob Juey.
    Where an insurance company gave notice that a policy was canceled without tendering the unearned portion of the premium, and insured did not object or request the return of the unearned premium hut on the contrary thought the policy was canceled without such return and secured other insurance to replace that canceled, it was a question for the jury whether the policy was canceled by mutual consent.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.]
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Action by A. D. Polemanakos against the Austin Fire Insurance Company. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    L. B. Moody, of Houston, for appellant. Wm. Thompson and Will C. Thompson, both of Dallas, for appellee.

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

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

   FLY, C. J.

Appellant sued appellee on two fire insurance policies, one for $1,000, the other for $1,500, insuring a certain brick house in Houston, Tex., which was consumed by fire on January 20, 1911. The defenses were that the total insurance on the building Was largely in excess of its value; that the' house was left vacant and was vacant at the time of the fire, and thereby the policies were forfeited; that it was provided in each of the policies, “This policy shall be canceled at any time, at the request of the insured, or by the company giving notice of such cancellation;” that on January 18,1911, the said policies were canceled by appellee and notice thereof given to appellant on that date, and appellant had agreed to such cancellation; that appellant obtained insurance in another company in lieu of the canceled insurance, which was fully paid. Appellee tendered the unearned premiums into court. The court instructed the jury to return a verdict in favor of appellant for $13.78 unearned premiums, with interest at 6 per cent, per annum from March 18, 1911, and in favor of appellee for a surrender of the policies, which was accordingly done, and the judgment appealed from was rendered thereon.

The material evidence in the cause emanated from appellant. He testified that on January 18, 1911, an agent of appellee called him on the telephone and notified him that the insurance company, had canceled his two policies. He admitted the identity of the canceled policies with those on which he had sued and admitted that he did not protest against the cancellation nor demand a return of any part of the premiums. He sought to obtain other insurance from the agent, but, failing, he applied to two other agencies and from one actually obtained $2,500 insurance. That amount was paid him by the insurance company, and in addition he had $2,500 insurance on the house in other companies. In applying for and obtaining the insurance after.appellee had canceled its policies, appellant stated that he had no intention to raise his insurance to $7,500 but merely wanted to replace the insurance lost by the cancellation of the two policies. In answer to a question as to his desiring to get the new insurance to take the place of the canceled policies, he said; “I guess so, as I didn’t want to cancel policies to get policies. That was my purpose, idea, and intention. When he told me he couldn’t get any written for me and I told him I would see about it myself, I had the same purpose and intention in my mind. That was the same thing, and I didn’t have any other purpose or intention. When Mr. Young telephoned me telling me the Austin Fire Insurance Company had directed him to cancel the two policies, these two policies I sue on here, I didn’t offer any objection to him. After I had had my talk with Mr, Young on Saturday evening, I called up Mr. Dumble and asked him if he couldn’t issue me some policies on this property to take the place of the ones which the Austin Fire Insurance Company canceled, and Mr. Dum-ble told me he didn’t have any companies in his office that he could write insurance on that building in at that time without submitting it to them, and I told him that I wanted my insurance for that day, for Saturday. I think he told me something like he wouldn’t be able to hear from the companies in his office about whether they would carry the policies or not before the Tuesday following. I am not sure about it. After he told me that I rang off, and then I called up the office of Torrey & Co., insurance agents, at Houston, and told them that the Austin Fire Insurance Company had canceled my two policies, and I wanted to know whether they could issue me $2,500 insurance to take the place of it.” Torrey & Co. issued the policies and paid the claim after the fire. Appellant further testified: “In applying to Mr.1 Torrey for the $2,500 in the Pennsylvania Fire Insurance Company, I didn’t have any purpose or intention to increase my insurance above the $5,000. I simply had the purpose and intention to get $5,000 insurance to take the place of the Austin Fire Insurance Company that Mr. Young had canceled; that is right.”

The house was burned on the night of Sunday, January 19, 1911, the next day after the cancellation of the policies by appellee and the issuance of the policies by Torrey & Co. Several days after the fire, Young, the agent of appellee, tendered tlie unearned premiums, $13.78, to appellant.

The following stipulation is found in each of the two policies: “This policy shall be canceled at any time at the request of the insured, or by the company by giving notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate, except that when this policy is canceled by this company giving notice, it shall retain only the pro rata premium.”

The policies in question are what are known as the New York standard policies, and the general rule formulated in the consideration of the provision as to cancellation hereinbefore copied is that, unless waived, the repayment of the proper proportion of the premium is essential to a valid cancellation and notice without such repayment, or a tender of the amount is ineffectual. Planters’ Ins. Co. v. Walker Lodge, 1 White & W. Civ. Gas. Gt. App. § 758; Insurance Co. v. Busby, 3 Willson, Civ. Cas. Ct. App. § 101; Hartford Fire Ins. Co. v. Cameron, 18 Tex. Civ. App. 237, 45 S. W. 158; Ætna Ins. Co. v. Rosenberg, 62 Ark. 507, 36 S. W. 908; Manlove v. Comm. Mut. Ins. Co., 47 Kan. 309, 27 Pac. 979; Van Valkenburgh v. Lenox Fire Ins. Co., 51 N. Y. 465; Griffey v. Insurance Co., 100 N. Y. 417, 3 N. E. 309, 53 Am. Rep. 202; Tisdell v. Insurance Co., 155 N. Y. 163, 49 N. E. 664, 40 L. R. A. 765; Buckley v. Insurance Co., 188 N. Y. 400, 81 N. E. 165, 13 L. R. A. (N. S.) 889; Scheel v. Insurance Co., 228 Pa. 44, 76 Atl. 507; Taylor v. Insurance Co., 25 Okl. 92, 105 Pac. 354, 138 Am. St. Rep. 906.

Construing the cancellation clause in a policy which is identical with the language of the policies in this case except that fiv.e days’ notice was required in that case and no time mentioned in this, it was held by the court of Civil Appeals of the Second District (Hartford Fire Ins. Co. v. Cameron, 18 Tex. Civ. App. 237, 45 S. W. 158): “We think that the cancellation clause, taken as a whole, means that when the company elects to cancel the policy it must, upon giving of notice of such intention, at the same time return or tender to the insured or his agent the unearned portion of the premium. The latter part of the clause, by providing that the company in such cases ‘shall retain only the pro rata premium,’ clearly implies that the other portion shall be returned; and, while it does not in turn declare when the return shall be made, it would be unreasonable and unjust to allow it to cancel its obligation and retain the consideration upon which it was based.” This construction of the cancellation clause is fully upheld by the New York and other cases cited.

In the cited case of Tisdell v. Fire Ins. Co., the New York Court of Appeals, after citing the case of Nitsch v. Insurance Co., 152 N, Y. 635, 46 N. E. 1149, said: “In that case, as in this one, the question presented was whether the provision of the New York standard policy of fire insurance, relating to the cancellation of the policy at the instance of the company, requires that, in addition to giving the five days’ notice, the company must return or tender the unearned premiums in order to effect a cancellation. The answer was in the affirmative” — citing the two cases last mentioned. The New York court in Buckley v. Insurance Co., herein cited, held: “If the insurance company desires to cancel, it must, as we have held in the cases cited, not only give the notice required but accompany it by the payment or tender of the pro rata amount of the unearned premium. It cannot legally demand of the insured the surrender of the policy and its cancellation until this is done.” In the cited case of Taylor v. Insurance Co., the Supreme Court of Oklahoma reviewed a number of cases that bear upon the cancellation clause in question, and in a well-considered opinion it was held that the return of the unearned premium is essential to a cancellation of the policy by the insurance company.

There are some authorities that hold to the contrary view, consisting of three federal court decisions, a New Jersey case, and an Ohio and Illinois case. We prefer that interpretation of the cancellation clause given By New York courts and followed by a great number of the states, not only because it is reasonable, but on the grounds stated in a Pennsylvania case (Gosch v. Ins. Co., 33 Pa. Super. Ct. 496) and quoted in Taylor v. Insurance Co. by the Oklahoma court as follows: “Turning, then, to the language of the agreement, in which the parties have undertaken to state their respective rights and duties, if we find it susceptible of two constructions, one in harmony with, the other in opposition to, those general principles already referred to, a sound discretion would seem to invite us to accept the former and reject the latter just as, in ascertaining the true meaning of a doubtful clause in a will, the courts incline to that construction which would vest the estate rather than leave it contingent, which would give it to the heir rather than to the stranger. Taking up, then, the provision of the policy on this subject, and looking at it as a whole, we may confidently say that it contemplates a complete and effective destruction of the contractual relation at the instance of either party, and that to accomplish this end the party moving must do two distinct and separate things; the object in view undeniably being that, when thfe cancellation shall have been completed, both parties will have been restored, as far as possible, to the conditions existing before the contractual relation began.”

There can be no doubt of the correctness of the proposition of appellee that, “regardless of the provisions of a contract of fire insurance as to cancellation, the contract may be canceled by the mutual consent of the parties thereto”; but the mutual consent is a question of fact to be determined by a jury and not one of law for the court. Appellant may not have objected when he was told that the policy was canceled; he may not have requested the return of the unearned premium ; he may have thought the policies were fully canceled without a return of the unearned premium; he may have secured more insurance to replace that in the two policies; he may have obtained $7,500 insurance on the house instead of $6,000; but those things did not justify the court in taking the case from the jury. The facts narrated did not, as a matter of law, constitute an agreement to set aside a solemn written clause in the policies; and, if they constituted circumstances which tended to show such agreement, the jury alone should pass upon them.

As said by the Supreme Court of Pennsylvania in the case of Scheel v. Insurance Co.: “A policy of fire insurance is a contract of indemnity, and unless it is canceled by mutual consent, or the policy provides that it may be terminated on the option of the parties and is so terminated, it will continue in force for the term for which it was written. If the right to terminate is reserved in the policy, the conditions upon which it is to be exercised must be strictly complied with; and, if a certain number of days is required before the notice to cancel is to take effect, the policy will still be in force, and cancellation will not become effective until the expiration of the time named in the notice. If the insurance company allege as to defense in an action on its policy that the assured has waived the five days’ notice, or that he has replaced the policy by another policy and thereby relieved the company from liability, it is incumbent upon the company to aver in its affidavit of defense and prove on the trial, not only that such was the intention of the assured, but that his intention was carried out with his consent and by his agreement with the company. In other words, the mere procurement of another policy on the same property and for the same amount * * * does not disclose an intention on the part of the assured to cancel the earlier policy or to relieve the company from liability thereon; and, in order that it may have such effect, the company must aver and prove that the assured consented and agreed to the cancellation and the substitution of the later for the earlier.” The facts in the Pennsylvania case are very similar to the facts in this case. See, also, Bard v. Ins. Co., 108 Me. 506, 81 Atl. 870, and Insurance Co. v. Clarke, 116 Md. 622, 82 Atl. 974, 39 L. R. A. (N. S.) 829, Ann. Cas. 1913D, 488.

The case of Insurance Co. v. Cameron, herein cited, is the only Texas ease directly bearing on this case, and it has never been questioned in this state and has been often cited by the appellate courts of other states. In the case of Insurance Co. v. McKinnon, 59 Tex. 507, cited by appellee, the premium had not been paid, and the court held: “The premium not having been paid, there was no necessity to refund prior to the cancellation of the policy in order to confer the right to terminate the risk.” So far as we have ascertained, the case has never been cited. In the case of Hotel Co. v. Home Ins. Co., 17 Tex. Civ. App. 615, 43 S. W. 1081, the court held that the premium had been returned. In the other Texas case cited (Ragley Lumber Co. v. Insurance Co., 42 Tex. Civ. App. 511, 94 S. W. 185), the cancellation was made at the instance and request of the assured, and of course it did not depend on the return of the premium.

For the error in taking the case from the jury, the judgment is reversed, and the cause remanded.


author: TALIAFERRO, J.

text:
    EBERSOLE v. SAPP.
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 12, 1913.
    On Motion for Rehearing, Dec. 3, 1913.)
    1. Trial (§ 142) — Jury Question.
    While a case may be taken from the jury when there is no evidence from which the facts sought to be shown can be fairly deduced, there is a jury question when the evidence is such that the jury may deduce the ultimate fact from the evidence introduced. .
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 337; Dec. Dig. § 142.]
    2. Master and Servant (§ 276) — Injuries to Servant — Actions—Evidence—Sufficiency.
    In a personal injury action by a servant, evidence held sufficient to warrant a finding that the explosion which injured plaintiff was caused by the striking of a metal bucket on the concrete walls or the bottom of the manhole in which he was required to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §8 950-952, 954, 959, 970, 976; Dee. Dig. § 276.]
    3. Master and Servant (§ 97) — Liability for Injuries — Proximate Cause.
    The test whether injury was the result of the negligence complained of is not whether the particular event which occurred should have been contemplated, and so a master who required his servant to labor in a manhole filled with combustible gas cannot escape liability for injuries from an exposion resulting from a spark emitted from the concrete walls of the manhole when struck with a metal bucket, on the ground that the precise injury could not have been foreseen.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.]
    4. Master and Servant (§ 124) — Injuries to Servant — Duty of Master.
    Where a master required his servants to work in manholes, it was his duty to inspect them to see that they were in a reasonably safe condition, and the fact that they were filled with combustible gas, the source of which the master did not know, will not free him from liability for damages for injuries from an explosion.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig'. §§ 235-242; Dee. Dig. § 124.]
    5. Master and Servant (§ 286) — Injuries
    to Servant — Actions—Jury Question.
    In a personal injury action against a master, the question of the master’s negligence held for the jury.
    [Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 3008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050'; Dec. Dig. § 286.]
    On Motion for Rehearing.
    6. Appeal and Error (§ 1002) — 'Verdict— Conflicting Evidence.
    A verdict on conflicting evidence is conclusive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by M. Sapp against F. E. Ebersole and others. From a judgment for pldintiff against the named defendant, he appeals.
    Affirmed.
    W. L. Cook, of Houston, for appellant. Green & Boyd, of Houston, for appellee.

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

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

   TALIAFERRO, J.

This suit was brought in the district court of Harris county, Tex., by appellee, M. Sapp, to recover damages for personal injuries alleged to have been sustained in the service of F. E. Ebersole and the Home Telephone Company. The cause was submitted to a jury, and they returned a verdict in favor of the plaintiff against F. E. Ebersole for the sum of $1,000. Upon the verdict as returned judgment was rendered and entered, from which this appeal is perfected.

The allegations of negligence were: That appellant was negligent, in allowing gas to accumulate in the manhole, in failing to warn appellee of the presence of the gas and of the danger from its presence, in sending appellee into the manhole in its dangerous condition, in constructing the manhole of cement or hard substance, and in furnishing appellee a metallic bucket to dip water therefrom. Appellant pleaded general denial, assumed risk, contributory negligence, and that the injury resulted from a cause too remote to be reasonably anticipated by the appellant. The court instructed the jury to find in favor of the defendant telephone company, and the defendant gas company was dismissed.

Appellant’s first assignment of error assails the action of the trial court in refusing a peremptory instruction in his favor. The first proposition under the assignment presents the one question of whether there is any evidence upon which it could be legitimately inferred that the explosion occurred by reason of a spark generated by the act of appellee in striking a metal bucket against the bottom or side of the manhole. The cases are not uncommon where the jury must draw, from the facts satisfactorily proven, inferences and deductions upon which they must base their verdict. That is their province; to reach the truth, despite obscurity and contradiction. Where there is no evidence from which the fact sought to be shown can be fairly deduced, then it is the duty of the court to take the question from the jury; but, where fair minds of ordinary intelligence could reach different conclusions from the evidence presented, the jury alone shall determine the truth. The evidence here, upon this issue, leaves much to be desired in certainty and definite intent; but such is often the case, and there was some evidence from which the jury could base the verdict as found.

Before proceeding further, we think it well to briefly state the facts in the case. The suit was originally brought against the appellant, Ebersole, the Home Telephone Company, and the Houston Gas & Electric Company. The suit was not prosecuted against the last-named company, and the court instructed a verdict in favor of the telephone company. Ebersole was an independent contractor, maintaining repairs, etc., upon the property of the telephone company, including the manholes in the streets of the city of Houston. Appellee and another negro, named Abe Jones, were in Ebersole’s employ, and part of their duty was to take out the water that accumulated in the manholes. In some of these manholes gas was found, and in others there was none. Both appellant and appellee were aware of this. Appellee and his fellow workman were instructed to dip the water out of the manhole in question and were provided with a metallic bucket for the purpose. There was gas in this hole. Appellee descended into the hole, and by use of the metal bucket was dipping up the water, and while so engaged the gas became ignited, exploded, and appel-lee was injured. There is no evidence from which it can ever be inferred that appellee lighted a match while in the hole. The bottom and sides of the manhole were composed of cement and brick. Appellee had been engaged in this kind of work for appellant for several weeks, but did not know, and had never been told, that using a metal bucket, under the circumstances, was likely to generate a spark which would ignite the gas. Neither had appellant knowledge of that fact; but it is admitted that such a spark, if emitted, would ignite combustible gas,' such as was in this hole. So much is undisputed. The facts about which the evidence is in conflict are: Whether appellant and appellee were aware of the gas in this hole; whether appellee had been warned of the dangers of his work; whether appellee descended into the hole with a lighted cigarette in his mouth; whether a lighted cigarette would have ignited the gas and caused such an explosion; whether the contact of such a bucket as that used by appellee with a substance such as composed the bottom or walls of the manhole would emit a spark; and whether such contact did in fact emit a spark which did in fact ignite the gas.

From the above statement of facts it is apparent that the jury must have reached its opinion upon the cause of the explosion by means of elimination and deduction. They evidently believed the statement of ap-pellee that he did not descend into the hole with a lighted cigarette; there was no evidence to support the contention that he lighted a match while in the hole; there is no evidence of fire coming from any other source which could have ignited the gas — and yet the gas exploded. Appellee testified that while in the hole, which was nearly empty of water, and while stooping over dipping out the last small portion of water left, he scraped the bucket along the bottom of the hole, and there was an immediate flash of light and an explosion. In this state of the evidence, the jury were relegated to the only remaining hypothesis which would explain the explosion; that is, that a spark of fire had been generated when the bucket came in contact with the hard bottom of the manhole. There was evidence that such a contact would have that effect, and that such a spark would ignite the gas. We think the evidence was sufficient to support the jury’s finding.

In appellant’s second proposition under this assignment, he seems to contend that the proximate cause of the injury in this case was an event or occurrence so remote and unusual as to have been beyond the power and without the duty of appellant to anticipate or guard against. The rule that an injury which could not have been foreseen or reasonably anticipated as the natural and probable result of a negligent act is not actionable because it is not the proximate cause, if not universally settled, is supported by great authority. Kreigh v. Westinghouse, Church, Kerr & Co., 152 Fed. 120, 81 C. C. A. 338, 11 L. R. A. (N. S.) 684. But the rifle has proper and well-defined limitations in its application. The true test, as applied by our Supreme Court, is, not whether the very occurrence which happened should probably have been anticipated, but whether the injury suffered by the plaintiff, or some like injury to some one, ought to have been anticipated by the defendant. T. & P, Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Washington v. M., K. & T. Ry. Co., 90 Tex. 320, 38 S. W. 764; Railway v. Hayter, 93 Tex. 242, 54 S. W. 944, 47 L. R. A. 325, 77 Am; St. Rep. 856; Railway v. Kieff, 94 Tex. 334, 60 S. W. 543. “It is not necessary that the particular event which occurred should have been contemplated. It is enough if the probable happening of some accident of the kind should have been contemplated which involved damage to the property of others that ought to have been guarded against.” St. Louis, B. & M. Ry. Co. v. Maddox, 152 S. W. 225, and authorities cited.

The manhole into which appellant sent his servant was an unsafe place to work because of the combustible gas accumulated therein, and, this fact being known to appellant, it became his duty to protect the servant from any act or occurrence, reasonably to be anticipated, which would increase the dangers of the place while he was there. Appellant knew that if fire came into contact with the gas while appellee was in the manhole an explosion and appellee’s injury were inevitable. It may be that such a danger from striking a metal bucket upon cement and brick should not ordinarily or usually be expected to occur, but this was not an ordinary or usual situation. Unless protected against fire, appellee’s position was one of great peril, and appellant’s duty was to anticipate and prevent every probable occurrence which was likely to subject his servant to that extra hazard. And while the evidence that the bucket in question was capable of striking a spark of fire from the substance of the manhole was in conflict, there was ample evidence upon which the jury could base their verdict that such was the ease. Furthermore, it is a fact of common knowledge, and is in evidence here, that metal of some sort, iron or steel, will strike a spark from such material. We cannot see then wherein this happening is so remote or unexpected as to shock the sense of probability. There is a high degree of duty incumbent upon the master with reference to the implements furnished his servant with which to work. He is bound to inspect them and bo determine whether they are reasonably safe and suitable instrumentalities for the performance of the duties then being performed.

In this ease it is not shown that appellant exercised any care in the selection of the bucket • in question, or that he made any effort of any kind to ascertain whether the implements being used by appellee in his work were reasonably suitable for the purpose. The servant was provided with a metal bucket to dip water out of a hole made of cement and filled with gas. If the evidence is to be believed, and the jury did believe it, the most natural and probable thing occurred; the bucket struck a spark from the bottom of the manhole which ignited the gas and appellee was injured. This case is not analogous to the cases cited by appellant. In those cases the facts show that no act of initial negligence was charged against the defendants. In the case of Dullnig v. Duerler Mfg. Co., 83 S. W. 889, the court says: “While bottles filled, with mineral water charged at a much higher pressure sometimes exploded from the force of the pressure, a bottle of the kind charged with no higher than the one in question was never known before to explode, and it could not have been reasonably anticipated that this one would, while handled in the manner it was.” And in the case of Pullman Co. v. Caviness, 53 Tex. Civ. App. 540, 116 S. W. 410, the court said: “In this case it is shown by the undisputed evidence that the defendant did not know that its servants were exposed to any unusual or abnormal risk in the application of the bedbug poison.”

The third proposition under this assignment contends that there is no evidence from which the jury could have inferred negligence on the part of Ebersole, in the matter of gas being in the manhole. There is no merit in this contention. The evidence is more than sufficient to show that appellant knew that gas frequently, if not usually, accumulated in the manholes where appellee was working, and the evidence does not show that he ever made any effort to prevent or remove the condition. The fact, if true, that appellant did not know whence the gas came, would not make it less an act of negligence to allow it to so accumulate and remain in the hole where his servants were sent to work. It was not only appellant’s duty to inspect the manholes to ascertain their condition, but to exercise reasonable care after such inspection to render them safe places for appellee to pursue his labor.

The second assignment of error is overruled. Considering the charge as a whole, we do’ not think the paragraph in question is subject to the objections urged by appellant. The facts to be found were upon issues which were raised by the evidence.

Appellant’s third assignment of error assails the charge of the court which submits to the jury the question of appellant’s negligence in furnishing appellee a metal bucket as the implement with which to dip the water from the. manhole. It is very earnestly urged in support of this assignment that there is no evidence from which the jury could legitimately draw the inference that this act was negligent or that the use of such bucket was the proximate cause of the injury. We have already sufficiently discussed the question of proximate cause. But how far may appellant’s contention be sustained that the evidence does not support the inference that defendant was negligent in furnishing his servant with a metal bucket to use in the work? Let us see. There is evidence that the manhole was built of a very hard substance made of cement. Also, that iron or steel struck upon this substance will emit a spark of fire. It.is sharply controverted whether a galvanized iron bucket, used as plaintiff used it, will cause such a spark. But there is evidence that it will. If appellant had required his servant to go into this hole with a pick or drill of steel or implement of iron, with instructions to perform a service which would have brought the steel or iron sharply in contact with the cement, it would hardly be contended that negligence could not be inferred from his act. Why not then in this case, where he furnished the servant with another metallic implement, which by some evidence it appears would probably cause the same effect. It appears to us that it is a matter only of degree of probability and purely a question for the jury. The third assignment is' therefore overruled.

The charge of the court is not subject to the objections urged by appellant’s assignments of error Nos. 4 and 5, and they are overruled.

There was no error in refusing to give appellant’s special charges Nos. 2, 5, 7, 11, and 9. So much of these charges as is proper was sufficiently covered by the court’s general charge to the jury. The seventh, eighth, ninth, tenth, and eleventh assignments of error are therefore overruled.

The judgment is affirmed.

On Motion for Rehearing.

In his motion for rehearing appellant contends that we were in error in our findings of fact when we say that there was no evidence that appellee lighted a match while in the manhole. The contention is correct. We overlooked the testimony of Ebersole and Abe Jones that appellee stated, in their hearing immediately after the injury, that the explosion was caused by his lighting a cigarette. But this is not material, as at best it but created a conflict in the evidence which was resolved by the jury in favor of appellee.

Throughout his brief and in his motion for rehearing appellant dwells with great insistence upon the idea that plaintiff’s injury was the result of a “most extraordinary event” and one that no amount of perspicuity would have anticipated. But appellant persistently ignores his original act of negligence in allowing explosive gas to accumulate and remain in the manholes. With that condition of danger existing, then the question of remoteness of the occurrence which brought about the damage is not apparent. If by bringing a bucket, such as appellee was using, in contact with such material as the manhole was composed of would and was likely to cause a spark of fire to be emitted, wherein is found the remoteness between the two concurrent causes of the appellee’s injury? If the bucket and the manhole, both furnished by the master, were of such substance as to create such a spark, then the creation of such a spark was but the result of a natural law. The duty was upon the master to furnish the servant a reasonably safe place to work. He did not do so. His duty was to furnish the servant reasonably safe appliances with which to work. He did not do so. The use of the appliance provided the servant, in the place where he was put to work, resulted in the explosion which caused the servant’s injury. The master owed the servant the duty to inspect the place and the appliance and to ascertain their condition and fitness for the work being performed. The servant owed the master no duty to inspect and was bound to know only the obvious risks and the dangers naturally growing out of the condition and reasonably probable in the sequence of events.

We see no error in our opinion, and the motion for rehearing is overruled.