author: FLV, C. J.

text:
    ZAMORA et al. v. VELA et ux.
    (No. 6004.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.)
    1. Mortgages <&wkey;38(l) — Warranty Deeb to Secure Debt — Conditional Sale.
    Evidence held to show that a warranty deed was a mortgage and not a conditional sale.
    2. New Trial &wkey;>99 — Newly Discovered Evidence.
    Newly discovered cumulative evidence which is probably not true and which would not change the result is not ground for new trial.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Suit by Nicolas Vela and another against Juan Vela Zamora and another to cancel deeds. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Mann & Henry, of Laredo, for appellants. Greer & Hamilton, of Laredo, for appellees.
   FLV, C. J.

This is a suit instituted by ap-pellees against Juan Vela Zamora and Antonio Rodriguez to cancel two certain deeds, one from appellees to Juan Vela Zamora, and the other by the last named to Antonio Rodriguez, thereby removing a cloud cast by the deeds on the title to lots 3 and 4, in block 234, in the eastern division of the city of Laredo, Tex. It was alleged in the petition that appellees bought lots 3, 4, and 5 in said block in Laredo from George W. Sprague, paying $75 in cash, and executing three notes for $50 each payable to the order of Sprague, a vendor’s lien being reserved on the land to secure the deferred payments; that appel-lees took immediate possession of the lots, fenced them, and constructed a residence on lot 5, and moved into it and-made it their home; that when all the notes were due the holder thereof desired payment of them and began to press appellees for the amount due; and that Nicolas Vela went to his cousin, Juan Vela Zamora, and arranged with him that enough money, about $114, be loaned to appellees to discharge the indebtedness on the land, the amount to be secured by the execution of a warranty deed to lots 3 and 4, “with the understanding then and there had between the parties that the plaintiffs were to have the right to pay off and discharge the said sum so loaned to them by the said defendant Zamora, and thereupon to require and demand from him a reconveyance back to them of the aforesaid two lots. They allege it was mutually understood and agreed between the parties that whilst said deed from them to the said Zamora was in form and on its face an absolute deed, yet in truth and in fact the same was only a mortgage and not in truth an absolute conveyance.” It was further alleged that in January, 1917, appellees found a purchaser who was willing to pay them $200 in cash for the two lots, “out of which they intended to pay off and discharge the debt so incurred to the said Juan Vela Zamora, the rest being a matter of profit to themselves.” It was alleged that Zamora refused to recognize anv right of appellees in and to the lots, but claimed ownership in himself, and he executed a deed to Antonio Rodriguez to the lots. Appellants claimed the deed was absolute and never intended as a mortgage, and Rodriguez claimed to be an innocent purchaser of the land. The cause was tried without' a jury, and judgment was rendered in favor of ap-pellees as prayed for by them, and it was recited in the judgment that $124.48 had been deposited in the court for Zamora by appellees.

The statement of facts shows that on February 28, 1914, Sprague conyeyed lots 3, 4, and 5, in block 234, eastern division of the city of Laredo, to appellees, the consid: eration being $75 cash and three promissory notes for $50 each, due respectively in October, 1914, June 26, 1915, and February 26, 1916. On November 16, 1915, appellees executed a warranty deed to Juan Vela Zamora conveying to him lots 3 and 4 aforesaid. The deed was duly recorded. On January 19, 1917, Zamora conveyed the lots to Antonio Rodriguez. Zamora paid the amount due on the vendor’s lien notes.

Nicolas Vela testified that Zamora, when the deed by him and his wife was executed, said:

“When you sell your property you will pay me my money and I will return you your deed.”

According to the testimony of Vela, Rodriguez was told by him before he bought from Zamora that the deed was merely a mortgage. On. cross-examination Vela swore that Zamora said:

“For this money you need not hurry about it, whenever you sell your property you pay me my money and I will return your property to you.”

The wife of Vela "testified that her husband told Rodriguez that he could not sell the lots because Zamora claimed them, and told Rodriguez that if Zamora sold the lots to him he would see what he could do to defend his property. Her understanding about the trade with Zamora was practically the same as that of her husband. The conversation with Rodriguez, as detailed by Mrs. Vela, was corroborated by Pedro and Ger-trudes Trevino.

Juan Vela Zamora testified that he paid off! the vendor’s lien notes and the deed to the two lots was made by appellees, and he told Nicolas Vela:

“Well, Nicolas, you know that I have got no interest in the house. If in one, two, three, four, five, or six months you have the money for it, if it takes you one, two, three, four, five, or six months, you can give me my money back and I will give you tko deed back and you will only have to make the expenses of making a new deed.”

Again he swore that after the deed was executed he told Nicolas:

“In one, two, three, four, five, or six months if you have the money, I will take the money and give you the deed on it.”

Zamora sold the lots to Rodriguez for $200. The vendor’s lien notes, executed by appellees, were given to Zamora when he paid the holder of the notes.

T. A. Bunn, who held the notes, and was a witness for appellants, testified that when Vela and Zamora came to him' to arrange the transfer of the lots Zamora said:

“I do not want Nicolas to get into trouble, so I am going to let him have the money, but of course I have got to protect my interest and I have got to have some protection and he has agreed to give me two lots that he has out there as security and we want you to make out the papers.”

1-Ie testified that Zamora further said:

“The understanding is that I am to let Nicolas have $150 and he is to give me two lots for security, with the understanding that if ho don’t pay me the money in six months” then the property became Zamora’s.

Zamora did not pay any money directly to Vela, and only paid off two notes for $50 each, with interest from February 28, 1914, to November 16, 1915, at 8 per cent, per an-num, which amounted to about $114. Zamora claimed, however, to have paid $150 on that debt. Bunn testified that the amount due on the notes and $1.50 for writing the deed were paid to him'.

We overrule the first and second assignments of error. We think the evidence sufficient to show that the deed was intended as a mortgage to secure the amount paid by Zamora on the two notes. The evidence of Zamora himself tends to show that the deed was in truth a mortgage rather than a conditional sale which he seeks to make it. 1-Ie stated that the deed was given as security for money loaned. The debt was not canceled by the execution, and Zamora, and not appellees, held the notes after the money was borrowed. The transaction had all the earmarks of a transfer by the holder of the notes to a purchaser of them, and a mortgage given by the maker of the notes to secure them. Why Zamora should have chosen this method of securing himself, we fail to understand, when the transfer of the notes and the superior title would have given him all the lots to secure him. I-Ie may have had the secret design to place appel-lees in a position where he could claim the two lots without litigation, and be saved the trouble and expense of a foreclosure of the vendor's lien. Had he denied the agreement to reconvey the two lots, the fact that he had better security without the deed than with it would be a potent circumstance to show that the deed was given in full payment of the debt. However, his testimony and that of appellees shows that there was an agreement to reconvey and that the deed was given only to secure the debt. The facts of this case differentiate it from the cases cited by appellants as a brief review of them will show.

In the case of Miller v. Yturria, 69 Tex. 549, 7 S. W. 206, contemporaneously with the execution of the deed sought to be shown to be a mortgage, a written agreement was made that the debt might be paid off in six years, and it was explicitly stated in the agreement that the deed evidenced a conditional sale. There was no escape from thp conclusion that the transaction was a conditional sale and not a mortgage. The court Said:

“A conveyance, however, which purports to be a sale, either absolute or conditional, may be shown to bo a mortgage by proving that it was intended merely as a security for a debt.”

The facts in that case showed conclusively tljat the debts had been fully extinguished by the execution of the deed.

In the case of Hardie v. Campbell, 63 Tex. 292, it was held:

“That a deed absolute on its face may be shown * * * to be a security for debt, and therefore in legal contemplation a mortgage, is so firmly settled as to admit of no question. * * * When it is claimed that such a conveyance was in fact intended as a mortgage, the usual test applied is this: Was the relation of creditor and debtor terminated by the transaction? If so, it is not a mortgage ; but if the debt subsists, and that relation exists as well after as before the transaction, then the instrument will be considered as a mortgage.”

There was a letter in that case in which was contained the following language, “If at the end of 12 months you want to purchase the house from us, you can do so on favorable terms,” and it was held that the language, construed with other portions of the letter, failed to show a conditional sale. That case has no applicability to the facts of this case.

The case of Pierce v. Fort, 60 Tex. 464, has no bearing upon this case, and the cases of Cuney v. Dupree, 21 Tex. 211, and Grooms v. Rust, 27 Tex. 231, merely enunciate the rule as to what character of proof is required engraft trust upon a deed absolute upon its face.

In the case of Calhoun v. Lumpkin, 60 Tex. 185, the facts were that the deed was understood by the parties to be an absolute sale; it was agreed that the note should be and that it was canceled and extinguished, and the possession of the property was given tc the vendee. There were other facts tending to show an absolute sale, and of course the court held that it was an absolute sale. In the case before us the debt was not extinguished; vendee stated that the deed was given as security and the notes executed by appellees were given to the vendee, and the presumption would obtain that he still holds them.

In the case of Moreland v. Barnhart, 44 Tex. 275, the rule as to the character of evidence required to show a deed absolute on its face is a mortgage is stated. The trust in the case before this court has been shown according to the requirement of that rule. The case of Markham v. Carothers, 47 Tex. 21, also merely states the rule as to the class of evidence required in such' cases.

The ease of Gazley v. Herring, 17 S. W. 17, was decided by the Commission of Appeals, and the facts showed that there was no note or other written evidence of debt, and the facts showed overwhelmingly that the deed was absolute having been made to settle an attorney’s fee. No debt existed after the deed was executed.

The cases of Focke v. Buchanan, 59 S. W. 820, and De Shazo v. Eubank, 191 S. W. 369, merely reiterate the rule as to the kind of evidence required to show that a deed absolute on its face is in fact a mortgage. In none of the cases reviewed did the vendee admit that the deed was taken to secure a debt, and in none of them was there proof which showed that the debt was not extinguished by the execution of the deed.

The questions involved in this case are fully discussed by this court in the case of Hume v. Le Compte, 142 S. W. 934, and a writ of error was refused by the Supreme Court. This court said:

“The instrument was evidently intended as security for a debt, and as between a mortgage and conditional sale equity will construe the instrument as a mortgage.”

In that case, as in this, no claim had been made to the land until long after the deéd was executed, and the vendee had never been in possession of the land, nor was it shown that he had ever paid taxes on it.

In the case of Loving v. Milliken, 59 Tex. 425, it is held:

“The circumstances from which equity usually deduces the conclusion that a deed in form is in reality, a mortgage, are exactly those which are prominent in this case. The existence of a previous indebtedness between the parties; the need which the grantor has for money; a negotiation between the parties, in which a mortgage is discussed, though apparently refused; an agreement to furnish more money and extin-quish an old debt for a deed to the property; a sale finally'agreed on for much less than the property is worth; a statement of willingness by the grantee to reconvey if the money is refunded ; no change in possession of the property taking place, as is always contemplated in absolute sales, without some understanding to the contrary.”

The circumstances enumerated fit the facts of this1 case with a nicety and precision that is seldom found in authorities cited to uphold and support a proposition. As in that case, so in this, there was an indebtedness, appellees needed money, there was a negotiation in which a mortgage was mentioned, though seemingly not adopted, the value of the land was greater than the debt paid by Zamora, there was an agreement to reconvey in case money was repaid and there was no change in the possession of the lots.

Rodriguez was not an innocent purchaser. He went to appellees to buy the land and was told that, although Zamora claimed the land, appellees would contest the claim. Rodriguez knew of no claim to the land by Zamora and he sought to buy from appellees. He was informed that the claim of Zamora was only a mortgage, and he admitted that he offered to lend appellees the money required to pay off any claim against the land.

There was a plea in the answer of Zamora that if the deeds were canceled he should have judgment for $150, and that a lien be foreclosed on the property. This was not done; there being merely a recitation in the judgment that appellees had deposited $124 in court for Zamora. There is no order that the money be delivered to him, and no decision that the money is his, except in so far as it may be inferred from the fact that it had been deposited in court for him. Appellants, however, made no objection to the judgment in this regard in the trial court and have offered none in this court, but seem to be satisfied with the judgment in connection with the deposit.

The evidence claimed to be newly discovered was merely cumulative, and portions of it were probably not true, as it contradicted both Zamora and Vela as to matters occurring before the deed was executed. It would not probably have changed the result had it been used on the trial. The cross-assignments are overruled.

The judgment will be affirmed.
      ©=pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    RENFROE v. HALL.
    (No. 1315.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 13, 1918.
    Rehearing Denied, April 10, 1918.)
    1. Chattel Mortgages <&wkey;5 — Bailment— What Constitutes.
    A contract to hold a piano for salo, the title to remain in the music company, price on sale to be immediately paid over, piano to be returned upon request at any time before sale was a bailment with right to sell, and not a mortgage required by Rev. St. 1911, art. 5654, to be registered.
    2. Pledges <&wkey;24 — Pledgee as Bona Fide Purchaser.
    Where a party sold a piano, and received the purchase price thereof, and thereafter pledged another piano, to which he did not have title, to the buyer to secure delivery, and the pledgee subsequently received notice of ownership from the owner of the pledged piano, and later entered into an agreement with the seller to accept the pledged piano in place of the one he bought, the owner can recover the piano, as the pledgee was not a purchaser without notice from one apparently the owner.
    Appeal from Taylor County Court; 1-Ion. E. M, Oversliiner, Judge.
    Action by E. E. Hall against George Ren-froe and another. Judgment for plaintiff, and the named defendant appeals.
    Affirmed.
    W. - D. Wilson, of Spur, for appellant. Scarborough & Davidson, of Abilene, for ap-pellee.
   HUFF, C. J.

Hall, the appellee, sued Stif-fler and George Renfroe, and alleged that he consigned to Stiffler a certain piano under a written contract, hereafter set out, the title to which remained ip plaintiff; that Stiffler, prior to the contract of consignment, contracted with Renfroe to sell him a piano; Renfroe had paid Stiffler the consideration, and Stiffler then went to Abilene, made the contract with plaintiff, and obtained the piano, and afterwards delivered it on his (Ren-froe’s) debt; that Renfroe did not buy the piano, but held it as a pledge until Stiffler produced the piano which Renfroe had contracted and paid for; that Renfroe had no right of title or possession as against Hall, etc. Renfroe alone answered by general denial, and that Stiffler had possession of the piano and was the apparent owner, and, believing him to be the owner, he purchased it without notice or knowledge of plaintiff’s right, title, or claim, and in good faith, for a valuable consideration; that, if Stiffler was the agent of plaintiff, that he delivered possession to Stiffler, and clothed him with the indicia of ownership; and that he bought in good faith, without notice, etc., and was an innocent purchaser, without any notice or knowledge of Stiffler’s agency. The case was tried before the court, who rendered judgment for Hall for the piano and the rents due thereon, and filed the following findings of fact:

“(1) On or about the 25th of April, 1916, plaintiff shipped to defendant A. Stiffler the piano in controversy, to be sold by the said Stif-fler, as agent for the plaintiff, under the terms of a written contract of agency introduced in evidence therein, whereby the title to said property was to remain in plaintiff until sold by the said stiffler, and the proceeds of sale were to be the property of plaintiff; that the wholesale market value of said piano was $350, and the retail market value of the same was $550.
“(2) That prior to the time said Stiffler made said contract with plaintiff, and prior to the time said Stiffler received said piano, he, the said Stiffler, had made a contract with defendant George Renfroe to trade him a piano in consideration of an automobile and a cow and calf. Said piano was selected by said Ren-froe from cut and description shown in a cat-alogue which was shown by said Stiffler to said Renfroe.
“(3) The piano in controversy was shipped by plaintiff to Stiffler at Spur, Tex., and prior to its arrival Renfroe had delivered to Stiffler the automobile and cow and calf. Renfroe expected a piano of the kind he had ordered of Stiffler and' Stiffler told Renfroe that he had a piano at the depot which was not exactly like the one he ordered, but that he (Renfroe) could take said piano and hold it until he (Stiffler) got another one. Stiffler further told Renfroo that this piano was his property, and he had paid for it, and delivered possession of the same to Renfroe, who at that time had no knowledge of any rights or claims of plaintiff, and the said Renfroe took the same in good faith, believing it to be the property of A. Stif-fler.
“(4) Some two or three weeks after the delivery of the piano by Stiffler to Renfroe, plaintiff apprised Renfroe of his claims and demanded possession, of the piano, which Renfroe refused, saying that he was going to keep the piano until Stiffler delivered him another one. After this Stiffler had a piano shipped to Spur, and asked Renfroe to exchange the piano in controversy for this piano. Renfroe expressed a willingness to do so, provided the piano suited him and his wife, but Renfroe ascertained that this piano had been shipped with bill of lading attached, and that there would have to be paid $180 before the same could be delivered to him. Stiffler said he did not have the money to pay this, and Renfroe refused to pay it. Stiffler failed and refused to deliver Ren-froe another piano, and permitted Renfroe to keep the piano in controversy in satisfaction of the trade for the automobile and cow and calf.
“(5) That Renfroe has had said piano in his possession after demand, and the reasonable rental value of the same is the sum of $10 per month from June 1, 1916.
“(6) That defendant A. Stiffler has not paid plaintiff anything for said piano.
“(7) The written contract between plaintiff and A. Stiffler was as follows:
“ ‘Abilene, Texas, 4/25/16.
“ T, A. Stiffler, have this day received of the Hall Music Co., one piano numbered 99134, styled 90, Werner Player, same to be held by me on sale for said Hall Music Co., as per agreement made this day, said piano to remain the property of the HaU Music Co. and to be immediately paid over to said Hall Music Co. It is further agreed that any time before said piano is sold or leased I will, upon request of said Hall Music Co., return said piano to them without expense. [Signed] A. Stiffler.’ ”

The first and second assignments are to the effect that the court erred in admitting the contract between appellee and Stiffler in evidence, and in rendering judgment for appellee because under article 5654, R. C. S., the contract was a chattel mortgage, and had not been filed for registration as required for chattel mortgages. The contract is not, in our opinion, a contract of sale in which title was reserved to secure the purchase money, but was nothing more than a bailment, giving the bailee the right to sell, making him an agent in the nature of a factor. Milburn Mfg. Co. v. Peak, 89 Tex. 209, 34 S. W. 102; Stein Double Cushion Tire Co. v. Fulton, 159 S. W. 1013.

The third assignment is to the effect that Renfroe was entitled to judgment because, as found by the court, he took the piano from Stiffler as a pledge to secure the delivery of a piano purchased without notice that the agent was not the owner, which was afterwards applied to the satisfaction of the obligation with the consent of Stiffler. A proposition is presented thereunder to the effect that a purchaser from an agent of property of an undisclosed principal, in good faith, without notice, relying upon the agent’s apparent ownership, is entitled, when sued by the owner, to any defense against the principal which existed against the agent at the time when the purchaser was chargeable with notice as to who was the true owner. - The assignment and propositions assert different propositions of law. We think it exceedingly doubtful, under appellant’s answer, if the proposition presented under the assignment be correct, whether appellant could require an adjustment of equities. It is not alleged in the pleadings that any money or property was advanced to Stiffler on this piano, and that appellant was induced to do so by reason of the agent’s apparent ownership, nor is it alleged the amount which he was induced to so advance before appellant had notice as to who was the true owner. The pleadings are that appellant purchased in good faith, without knowledge that there was an undisclosed principal. The findings of fact by the trial court established that there was no purchase of the piano before appellant knew that appellee had asserted title to the piano and had demanded of appellant its return. The facts further show, as found, that an automobile, a cow and calf, were delivered to Stiffler on a contract to deliver him a certain kind of piano selected from a catalogue, and that the piano in question was not the kind ordered, and that it was not delivered as a fulfillment of the contract, but only held until the kind of piano ordered could be secured. Manifestly there was no sale up to this time. Appellant was not induced to pay anything on the faith of the representation that this particular piano belonged to Stiffler. He had made his payment only on the promise of Stiffler that he would deliver a certain kind of piano ordered. It will not, therefore, be necessary to determine whether, under the facts of this case, the appellee, by intrusting Stiffler with the piano, should be estopped from asserting that the title to the piano did not pass, or that he was an undisclosed principal in an agency contract at the time of making the order for a piano and paying therefor. Holmes v. Tyner, 179 S. W. 887-892. The relation established by the transaction between appellant and Stiffler was that of creditor and debtor, and was so existing when Stiffler turned the piano over to appellant to hold until he performed his obligation. Before there was any pretense of a sale by Stiffler to appellant of the piano to satisfy the obligation, appellant was notified and had knowledge that the piano belonged to appel-lee, and that Stiffier was only an agent with authority to sell. It is a general rule when an agent has only the indicia to sell he cannot mortgage, pledge, barter, or exchange, and, if the property is so sold, the owner may recover the property. The facts of this case clearly bring it within the rule established in this state. McCreary v. Gaines, 55 Tex. 485, 40 Am. Rep. 818; Low v. Moore, 31 Tex. Civ. App. 460, 72 S. W. 421; Belton v. Belton, 64 Tex. 337; Warner v. Martin, 11 How. 209, 13 L. Ed. 667; Chattanooga, etc., v. Gorman, 12 Tex. Civ. App. 75, 34 S. W. 308; Skaggs v. Murchison, 63 Tex. 348. It is generally held if an agent who has general authority to sell transfers his principal’s goods to a third person in payment of or as security for the agent’s own debt, the principal may, as a general rule, recover from the third person the goods so transferred or the value thereof. Authorities supra; R. C. L., vol. 11, Factors, § 10, on page 760; Mechem on Agency, §§ 2509, 2512. We would not, in the absence of a statute, be authorized to require the repayment of the consideration before the appellee could recover his property, even if we should find that it had been advanced upon the property upon the faith that the agent was the apparent owner thereof. The advancment, however, in this case, was not so made, as found by the trial court. Mechem on Agency, § 2511.

Under the findings of fact we think the conclusions of law filed by the trial court present sound propositions of law. His able opinion bas been of much assistance to us in tbe consideration of tbis case.

Tbe judgment is affirmed.
      ig^=>Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    CAMDEN FIRE INS. ASS’N v. BOND.
    (No. 7908.)
    (Court of Civil Appeals of Texas. Dallas.
    March 2, 1918.
    Rehearing Denied March 30, 1918.)
    1. Insurance <&wkey;327 — Breach oe Warranty —Removal oe Goods.
    Where insured moved the insured goods to another residence situated on a different lot, there was no contractual relation between him and the insurer, unless breach of warranty of location was waived by insurer.
    2. Insurance <&wkey;388(3) — Removal oe Goods —Waiver by Insurer.
    Where after damage to goods and removal to other location within knowledge of insurer, a duplicate receipt was given for amount of partial loss, reciting that “said policy is hereby reduced in said sum” and unearned premium on policy was not returned, the insurer waived the right to avoid policy for removal of goods; the policy standing as reduced.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by J. V. Bond against tbe Camden Eire Insurance Association. Verdict and judgment for tbe plaintiff, and defendant appeals.
    Affirmed.
    Claude Westerfeldt, of Dallas, for appellant. Wood & Wood and W. W. Hagebusb, all of Dallas, for appellee.
   RAINEY, C. J.

This is an appeal from a judgment for $201.93 on a fire insurance policy issued by appellant to appellee. Tbe property insured was household goods, and situated first in a residence on a certain lot in tbe city of Dallas, Tex. Tbe residence was entirely consumed by fire, but tbe property was saved, although damaged, and was moved to another building across tbe street and tbe damage to tbe property was adjusted, tbe loss amounting to $98.07, which was' paid. Subsequent to tbis time appellee moved tbe goods to another residence situated on a different lot, when another fire occurred, which consumed said' residence and all of said household goods. For loss of property from this last fire this suit was brought, and a verdict was instructed for appellee.

Tbe leading proposition for a reversal presented by appellant is:

“There was no contractual relation existing between the parties, plaintiff and defendant, as defendant had no agreement, expressly or impliedly or otherwise, to insure the property where it was burned.”

This proposition we think is correct and supported by the great weight of authority, unless waived, which appellee contends was the fact in this case.

Appellee by his first supplemental petition alleged on the question of waiver as follows :

“He denies that part of defendant’s special answer wherein it is alleged that the property covered by the policy herein sued on was, without the authority or knowledge of the defendant, removed to other premises. Plaintiff admits that after the issuance of the policy sued on_, the property, for the value of which this suit is brought, was removed to other premises, but plaintiff says that such property was so removed to other premises with the knowledge and consent of the defendant company; that during the month of May, 1915, when defendant company had settled with this plaintiff for a loss occurring at that time, they required him to sign a receipt in duplicate for the amount paid him in settlement of said loss; such receipt being substantially in words and figures as follows: “$98.07. Duplicate Receipt. 191 — .
“Received of the Camden Eire Insurance Association' of Camden, N. J. ninety eight and 07-100 dollars, being in full satisfaction and compromise settlement of all claims and demands against said company for loss and damage by fire which occurred May 5th, 1916, to the property insured under Policy No. 1408678 issued at Dallas, Texas, agency and said policy is hereby reduced in said sum.
“[Signed] J. V. Bond, Assured.
“This duplicate receipt must be signed by all claimants and attached to policy No. 1408678.
“That at the time said receipt was signed by plaintiff, defendant knew that his property had been removed from the premises in which the loss occurred during the month of May, 191 — , and, instead of canceling said policy and returning to this plaintiff the unearned premium on said policy, they continued the policy in full force and effect for the balance of the term covered by said policy, but in a reduced amount; that is, an amount equaling the difference between $300, the face value of the policy, and $98.07, paid plaintiff on the loss sustained in May, 1915; that it was understood and intended by plaintiff and defendant that in lieu of issuing a new policy on the personal property covex-ed by the policy herein sued on, they would continue such policy in full force and effect, reducing their liability thei-eunder to the extent of $98.07, and with full knowledge that the property had been i-emoved to other premises, and evidenced this understanding by issuing in their own words and language the receipt above set out, and plaintiff was thereby caused to believe, and did believe, that his personal property, or so much of same as was covered by said policy, was protected throughout the balance of the term covered by said policy, and plaintiff says that by reason of the facts above set out, defendant waived that clause in its policy which provided that said property would be covered by insurance while located as contained and described in said policy and not elsewhere, and defendant is now estopped to deny that it waived said clause in its policy, and is estopped to rely on such clause, as a defense to plaintiff’s cause of action.”

Tbe evidence establishes the foregoing plea, and shows that the place of the property when burned was waived by appellant.

Further article 4874a, Vernon’s Sayles’ Ann. Oiv. St. 1914, provides:

“Breach or violation by insured of policy, etc., on personal property, not a defense, when—
“That no breach or violation by the insured of any of the warranties, conditions or provisions of any fire insurance policy, contract of insurance, or application therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about tbe destruction of the property.”

It was not claimed that the “breach or violation contributed to bring about the destruction of the property.” MacPherson v. Fire Ins. Co., 185 S. W. 1055; Fire Ins. Co. v. McMinn, 188 S. W. 25; Ætna Ins. Co. v. Waco Co., 189 S. W. 815; Ins. Co. v. Finegold, Syl. 5, 183 S. W. 833; Ins. Co. v. Nelms et al., 184 S. W. 1094.

Just after the first fire appellant knew of the situation of the property; that it could not be placed in the former residence, it having been entirely destroyed; that it had the opportunity to cancel the policy — but left ap-pellee to conclude that it would remain in .force for the original amount, less the $98.07; and it will not now be heard to say to the contrary.

The judgment is affirmed.
      iSvjFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    CAOGNARD v. TARNKE et al.
    (No. 8083.)
    (Court of Civil Appeals of Texas. Dallas.
    March 23, 1918.)
    1. Partnership <&wkey;243 — “Surviving Partner.”
    A surviving partner is one who during existence of the partnership outlives the others; and so the relation, with its attaching rights, cannot arise, where the partnership is dissolved by agreement, and the partner continuing the business dies; notwithstanding provision of the dissolution agreement that ho should collect and divide with the retiring partner certain accounts due the partnership.
    2. Receivers &wkey;>16 — Grounds oe Appointment-Denial op Interest.
    Mere denial of plaintiff's interest in accounts, which he claims he and defendant’s intestate owned jointly, and intestate agreed to collect and divide the proceeds with him, is not ground for appointment of receiver therefor.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by Joseph A. Caognard against Mrs. Fred Tarnke and another. From an adverse judgment, plaintiff appeals.
    Affirmed.
    M. M. Parks and L. P. De Lee, both of Dallas, for appellant. W. J. Rutledge, Jr., of Dallas, for appellees.
   RASBURY, J.

This is an appeal from the action of the trial court in sustaining a general demurrer to appellant’s petition. The suit .was against Mrs. Fred Tarnke, surviving widow of Fred Tarnke, deceased, and W. J. Rutledge, Jr., temporary administrator of the estate of said deceased. The purpose of the suit was to establish appellant’s joint ownership in certain accounts due the former partnership of Fred Tarnke & Co., and the appointment of a receiver to take charge of and collect said accounts for the benefit of appellant and appellees. The facts disclosed by the petition are in substance these: From February 15, 1917, to December 15, 1917, appellant and the deceased, Fred Tarnke, were partners and brokers under the firm name of Fred Tarnke & Co., engaged in selling merchandise on a commission. On said December 15, 1917, the partnership was dissolved by mutual consent. At dissolution certain commissions were outstanding and to become due said firm, aggregating $2,500 which were not adjusted in the dissolution, hut it was agreed between the parties at the time that said commissions should be paid to and received by said firm and equally divided between appellant and Tarnke, who continued the business. Tarnke died January 8, 1918, up to which time there had been no settlement of any of said commissions due the former partnership. It was not shown that Tarnke prior to his death, or appellees subsequent thereto, had collected any of said commissions. After the death of Tarnke and before commencement of suit appellee Rutledge was appointed temporary administrator of the estate of said Tarnke. Mrs. Tarnke, the surviving wife, and Rutledge, the temporary administrator, denied the existence of any partnership between appellant and Tarnke. They have possession and control of the •.books, records, and letters pertaining to said 'former partnership business and refuse possession thereof to appellant, and intend to collect and appropriate to the use of the separate estate of Tarnke, deceased, all of said outstanding commissions. Prayer was for receiver, an order directing appellees to turn over to such receiver all books, accounts, and evidence of indebtedness owing and due Fred Tarnke & Co. up to December 15, 1917, with authority in the receiver to demand and collect all money due said firm or collected by said appellees.

The first and only assignment is that the court erred in sustaining the general demurrer. The precise proposition presented thereunder is in effect that appellant, as surviving partner of Tarnke, succeeded to the legal title to the partnership assets and was entitled to possession thereof, and the refusal of appellees to deliver possession of the books, records, etc., of Fred Tarnke & Go. to appellant presented a state of facts warranting the appointment of a receiver. A surviving partner does succeed to the legal title to partnership assets, and is entitled to possession thereof as trustee for the use of creditors and those who take under the deceased partner. The difficulty in the application of the rule in this proceeding, however, is that the facts fail to establish that appellant was in legal contemplation a surviving partner. A surviving partner is that partner who, during the existence of the partnership, outlives the other or others, and the relation necessarily arises only when one of an existing partnership outlives or survives in life the other. Bouvier. As a consequence, when a partnership is mutually dissolved and it is agreed at dissolution that one of the partners shall continue the business and collect and divide certain accounts due the partnership, the rights of a surviving partner can never thereafter accrue to the withdrawing partner upon the death of the partner who continues the business, for the reason that there is no partnership between the parties, and being no partnership there can be no survivorship. It is true that appellant under the allegations of his petition had an equal and joint interest in the outstanding commissions unadjusted at the time of dissolution. That ownership did not for the reasons stated clothe him with the right a surviving partner would have had to the possession of the books and records delineating such indebtedness. They were the property of Fred Tai'nke & Co., of which appellant was not a member. We therefore conclude that the refusal of appellees to deliver appellant the books, records, etc., of that firm did not constitute ground for the appointment of a receiver.

It is further shown by the petition that appellees deny the existence of the former partnership and intend to collect said outstanding commissions and appropriate same to the separate estate of Tarnke. Such facts, it is contended, will alone authorize the appointment of a receiver for the purposes stated. We think not. Upon the appointment of the administrator for Tarnke’s estate the former succeeded in law to such right to collect and divide the commissions as Tarnke possessed in his lifetime, since he is Tarnke’s representative and can do in his representative capacity with reference to Tarnke’s estate all that Tarnke could. Appellant also has against Tarnke’s administrator the same right that he would have had against Tarnke in his lifetime to establish by appropriate action his alleged interest in all outstanding commissions, which the present suit, we have said, attempts inferentially to do. But we also conclude that a denial of appellant’s interest in the commissions is not alone a ground for receivership. Admittedly appellees have an equal interest in the fund with appellant and an equal right to collect the commissions. It is not shown by the petition that appellees have collected any portion of the fund, or if they do there is danger of its being lost, or removed, nor is any other equitable ground recognized by the usages of courts as sufficient to authorize the appointment of a receiver alleged. Article 2128, subd. 1, Vernon’s Sayles’ Civil Stats.

For the reasons stated the judgment is affirmed.
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author: FLY, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. HOPKINS.
    (No. 5982.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 6, 1918.
    Rehearing Denied April 3, 1918.)
    1. Damages <&wkey;132(9) — -Personal Injuries— Excessive Verdict.
    Where a railroad switchman suffered injuries necessitating the amputation of his right foot, and three subsequent amputations depriving him of his leg to just below the knee, and his injuries subjected him to great pain through the length of his spine up to his head, affected his bladder, kidneys, and heart, destroyed the lubricating oil in his right knee, subjected him to dizziness, and permanently impaired his health, forcing him to spend many weeks in the hospital, and subjecting him to jumping nerves in his leg and pain in his knee joint all the time, verdict in his favor against the railroad for $20,000 was not excessive.
    2. Damages t&wkey;128 — Amount—Federal Employers’ Liability Act — Excessive Verdict.
    Public policy does not demand that verdict in a railroad servant’s action for personal injuries should not be as large as $20,000 on any grounds, though the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) is virtually a compensation statute, and fixes liability for defective appliances, regardless of the' question of negligence; compensation being the-end to be attained, as in any case of negligence.
    3. Appeal and Error <&wkey;>1039(l) — Harmless Error — Ruling on Pleadings— Damages.
    The ruling of a court on pleadings as to damages is harmless, though incorrect, when the matters alleged are not submitted to the jury.-
    Appeal from District Court, Bexar County ; R. B. Minor, Judge.
    Suit by Norville L. Hopkins against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, and Templeton, Brooks, Napier & Ogden and Ed. W. Smith, all of San Antonio, for appellant. H. C. Carter, Champe G. Carter, Randolph L. Carter, and Perry J. Lewis, all of San Antonio, for appellee.
   FLY, C. J.

Appellee instituted this suit to recover damages from appellant incurred from injuries inflicted on him, while in the service of appellant as a switchman, by reason of a sill step giving way when he endeavored to get on a moving car. Appellant admitted that the step gave way and threw appellee under the car, and that this foot was so injured that it was amputated, but denied other injuries. Appellant claimed that it had exercised all practicable means to have the step in a safe and secure condition. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $20.000.

The three first assignments of error are devoted to the claim that the verdict is excessive, and are overruled. The evidence shows that the step gave way, and that ap-pellee’s right foot slipped to the ground; that it was caught by the car wheels and so crushed that it had to be amputated. Three other amputations became absolutely necessary and were performed, the last one about one month before the trial. Appellee not only lost his right leg just below the knee, but the lower end of his spine was injured, causing great pain throughout the length of the spine up to the back of the head; his bladder and kidneys were greatly affected, so as to cause a slow-loss of urine constantly; his heart was affected so as to have a rapid and weak action, with indications of organic trouble. In addition, his right knee was so injured that the lubricating oil, or synovia, was destroyed, and when used it made a grating sound. The operations were performed by the physicians of appellant, and they treated him for his other injuries. Appellee is subject to dizziness since his injury, and his health is permanently impaired, and he has suffered great agony since March 21, 1916, when he was hurt, and will always be a sufferer. He spent many weeks in the hospital. The operations were very painful, especially the third and fourth. In the fourth, nerves were severed and taken out as far up as the knee. Appellee suffers very much from the nerves jumping in his leg, and his knee joint pains all the time. We cannot hold the verdict excessive.

There is no merit in the argument that, because the federal law is virtually a com. pensation statute, and fixes liability for defective appliances, regardless of the question of negligence, public policy demands that there should not be as large verdicts as the one in this case. The same test is applied in this case as in any case of negligence in which the law does not designate certain acts of omission or commission as negligence per se. Compensation is the end to be attained in each instance. Appellant, in discussing the question of compensation herein, ignores every injury except the loss of the leg below the knee, and does not notice the mental and bodily suffering of appellee.

The fourth and fifth assignments of error are overruled. The fourth proposition under the fourth assignment is not germane to the assignment, and the others are without merit. The elements of damage, which it is claimed are set out in the petition, were not submitted to the jury. A special charge was given, at the request of appellant, which in effect indorsed the charge of the court on damages, and accentuated the terms thereof. It is too well settled for argument to be advanced that the ruling of a court on pleadings as to damages it without harm, though incorrect, when the matters alleged are not submitted to the jury. Weaver v. Nugent, 72 Tex. 272, 10 S. W. 458, 13 Am. St. Rep. 702; Railway v. Johnson, 24 Tex. Civ. App. 180, 58 S. W. 622.

The judgment is affirmed.
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author: KING, J.

text:
    SCARBOROUGH v. McKINNON.
    (No. 332.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 8, 1918.
    Rehearing Denied March 27, 1918.)
    1. Principal and Surety <&wkey; 108(2) — Discharge op Surety — Extension op Note-Consideration.
    Contract for extension of time for payment of a note for a definite period, when the debt bears interest, is on a valuable consideration, and binding on the parties; thus discharging the surety not consenting thereto.
    2. Principal and Surety &wkey;162(2) — Discharge — Extension—Question por Jury.
    Whether there was an extension of time for payment of note, discharging the surety held a question for the jury; the payee after urging the surety, when the note became due, to collect it, saying nothing more till nearly two years later, a credit having in the meantime been made on it a year after it was due, and the payee, at the second interview, saying that unless it was paid on its due date he would put it in an attorney’s hand, and this though he states that by this he meant “when it became due at any time.”
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by A. McKinnon against L. P. Scarborough. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Campbell, Myer, Myer & Freeman, of Houston, for appellant. Hunt & Teagle, of Houston, for appellee.
   KING, J.

On April 7, 1916, A. McKinnon filed suit against W. J. Mullen and appellant, L. P. Scarborough, on a note dated March 8, 1913, for the sum of $1,000, due October 1, 1913, providing for interest and attorney’s fee. Mullen was the principal on said note; appellant signing the same as surety. The case was dismissed as to W. J. Mullen upon allegations in a supplemental petition by ap-pellee alleging that he had died since the filing of the suit, and was at his death notoriously insolvent. Suit proceeded against appellant Scarborough. A trial was had before a jury, and after all the evidence was heard the court peremptorily instructed a verdict against appellant, and the sole question presented on this appeal is whether there was sufficient evidence to raise the issue as to whether the appellee, without notice to appellant, agreed with ¡Mullen to extend the time of payment of said note to a fixed date.

The record shows that Scarborough signed the note as an accommodation to Mullen, the maker, and received no part of the money. The briefs present no issue as to the law, but meet upon the well-established legal proposition that, if by a valid agreement the payee in a note, without the consent of the surety, gives an extension of time for the payment of the note for a definite period, such agreement operates to discharge the surety from his undertaking, if said agreement is based upon a valid consideration. There was no proof of any other consideration than the interest provided in the note. It has been held, and we so hold, that a contract for the extension of time of payment of a note for a definite period, when the debt bears interest, is upon a valuable consideration, and is binding between the parties.

Appellee insists that there is not a particle of evidence in the record from any source that even tends to raise a suspicion that any kind of an agreement for an extension had been made between McKinnon and Mullen. The issue of extension can, like any other issue of fact, be established by circumstances, and while Mullen had died and his lips are therefore sealed, and the appellee by positive statements testified that he had no agreement with Mullen to extend the note, yet, under the well-established rules of construction in Texas, we must eliminate the testimony introduced in behalf of appellee and see if there is testimony, circumstantial or otherwise, introduced in behalf of appellant that would raise an issue as to this extension, from which reasonable minds might differ.

In applying this test, we find from the record that the note was executed March 8, 1913, and was due October 1, 1913, and that some time after its due date McKinnon informed appellant that the note had not been paid, and that appellant urged him to collect it from Mr. Mullen, the maker of the note; Scarborough testifying that the next he heard McKinnon came into his office about September, 1915, nearly two years after its original due date, and again told appellant that the note had not been paid, and that McKinnon told appellant on that occasion that “unless it was paid on its due date, that he was going to put it in the hands of his attorney.” McKinnon testified on the trial of the case:

“I admit I made the statement ‘when it becomes due I will put it in the hands of an attorney,’ and this conversation occurred in 1915.”

Appellee further testified:

“By telling him ‘when it becomes due I am going to put it in the hands of a lawyer,’ I meant I was going to put it in the hands of a lawyer. I meant when it became due any time.”

The appellant, being recalled to the stand, testified on cross-examination:

“Mr. McKinnon intimated to me that he extended the payment of that note. My recollection is not clear enough for me to say whether or not he stated he extended this note. If I recall, Mr. McKinnon came to my office and told me Mr. Mullen had not paid the note. I urged him to collect it from Mr. Mullen, and he said he was going to do it when it became due the next time — when it became due, which would be in a few days. That conversation was in 1915.”

The record shows that the note was credited with the sum of $250, of date the 1st day of October, 1914, one year after its due date, and about 11 months before the conversation wherein McKinnon admits that he told Scarborough that when it became due he was going to place it in the hands of an attorney for suit.

The jury, hearing appellee’s testimony and observing his demeanor on the stand, and knowing his interest in the subjectrinatter, had a right to give his testimony credit or not to credit the same, and the admitted statement of appellee and his explanation of what he meant; that is, “that when it became due at any time,” the further fact of the credit on the anniversary of its due date, and the testimony as to the long lapse of time from the first conversation, a few months after the note was due, between McKinnon and Scarborough, and the last conversation, were of such probative force as to call for very serious consideration upon the part of the jury as to whether appellee in fact had had an agreement with Mullen to extend the payment of the note to a definite date, and were circumstances from which the jury would have been justified in finding that such extension- had actually been made; therefore bringing the case under the well-established rule that, if there is any evidence, circumstantial or otherwise, fairly tending to support a material issue, it is error for the court to give a peremptory instruction where a jury has been demanded. The positive testimony upon the part of appellee on the one hand that he did not agree to 'extend the time, and the facts and circumstances recited in this opinion on the part of appellant, formed an issue, and it was the province of the jury, and not the court, to determine the same in favor of one or the other.

The case is reversed and remanded.
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author: GREENWOOD, J.

text:
    LIQUID CARBONIC CO. v. DILLEY.
    (No. 2496.)
    (Supreme Court of Texas.
    April 10, 1918.)
    1. Master and Servant i&wkey;291(13) — Instructions — Proximate Cause.
    Charge in a servant’s action, that if he was directed to clean a high-pressure coil, and in the exercise of ordinary care attempted to do so, and while so engaged a solution tank used in connection with the work exploded, injuring him, and said explosion occurred because defendant failed to exercise ordinary care in furnishing a reasonably safe and sufficient tank for the purpose, or because defendant failed to exercise ordinary care in seeing that the coil was reasonably free from gas and in a reasonably safe condition to be cleaned, and that a man of ordinary prudence, under the circumstances, would have acted as plaintiff did, then in either of such cases verdict should be for him is not misleading because not in terms requiring a finding that the acts of negligence were “proximate cause” of the injury.
    2. Master and Servant <&wkey;287(8) — Unsafe Appliances —Duty of Inspection — Vice Principal — Instruction.
    The evidence in a servant’s action for injury from explosion of a solution tank while cleaning a high-pressure coil connected therewith, at most raising merely a question of fact as to whether he, though acting in the engineer’s place, was a vice principal as respects inspecting or testing the tank, defendant was not entitled to direction of verdict on the mere finding that plaintiff was in the engineer’s place.
    3. Trial <&wkey;252(ll) — Instructions—Applicability to Evidence.
    Requested instruction, in servant’s action for injury from explosion of a solution tank while he was cleaning a high-pressure coil connected therewith, that defendant could not be guilty of negligence, in respect to exercising care to see that the coil was reasonably safe for use by plaintiff at the time, if plaintiff was acting in the engineer’s place, unless the engineer had stated to him that all the gas and pressure had been blown out of the coil, was properly refused; there being evidence of other facts which would warrant a finding of actionable negligence, even if such statement had not been made.
    4. Master and Servant t&wkey;278(16) — Injury —Negligence.
    . The facts which might be found' on the evidence in a servant’s action for injury from explosion of a solution tank, while he was cleaning a high-pressure coil connected therewith, that a high-pressure coil had not been cleaned, at defendant’s factory, by means of connection with a charged tank, containing a solution, till the day before the accident, and that plaintiff was not present, and did not know how the work should be done, or-that defendant, acting by the engineer, with full knowledge of the necessity to have the gas blown out of the coil, before connection with the tank, directed plaintiff to go ahead and wash out tjje coil, and assured him that everything was ready to wash it, and that thereon plaintiff proceeded to connect the coil with the tank, causing the explosion, would warrant a finding of actionable negligence, in not seeing that the coil was in reasonably safe condition for use, though the engineer had not told plaintiff that all the gas and pressure had been blown out of the coil.
    Error to Court of Civil Appeals, Fifth Supreme Judicial District.
    Action by M. L. Dilley against the Liquid Carbonic Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (150 S. W. 468), and defendant brings error.
    Affirmed.
    Harry P. Lawther, of Dallas, for plaintiff in error. Charles F. Olint and Jed C. Adams, both of Dallas, for defendant in error.
   GREENWOOD, J.

This was a suit brought by defendant in error, M. L. Dilley, to recover of his employer, the Liquid Carbonic Company, plaintiff in error, damages for personal injuries, which resulted in the amputation of one of defendant in error’s legs and in the impairment of his sight in one eye. A jury trial resulted in a verdict and judgment against plaintiff in error for $8,300, which was affirmed by the Court of Civil Appeals.

Defendant in error was engaged in cleaning a high-pressure coil, in obedience to the orders of one Ed Hogan, engineer in plaintiff in error’s factory, and had just connected the coil with a certain charged tank, when an explosion occurred, which caused the injury.

The seventh paragraph of the court’s charge shows two distinct grounds, on which the jury were authorized to find that the plaintiff in error was negligent, and reads as follows:

“If you believe from the evidence that on or about August 12, .1910, plaintiff was in the employ of the defendant, and was directed by Ed Hogan to wash and cleanse a certain high-pressure coil in its factory, and that in the exercise of ordinary care he attempted to wash out and cleanse said coil, and while so engaged a certain solution tank used in connection with said work exploded and that he was thereby injured, as set forth in his first amended original petition, and that said explosion occurred ■because the defendant failed to exercise ordinary care in furnishing a reasonably sufficient, safe, and sound solution tank for said purpose, or because the defendant failed to exercise ordinary care in seeing that the high-pressure coil No. 1, to which said tank was connected at the time of its explosion, was reasonably free from gas and in reasonably safe condition to be cleansed, and that a man of ordinary prudence, under the same or similar circumstances, would have acted as plaintiff did, then, in. either of such events, you will find for the plaintiff and award him such damages as under the evidence he may be entitled to.”

The only complaint with respect to the above paragraph of the charge is that it authorized a finding against plaintiff in error, regardless of whether the specified acts of negligence were the “proximate cause” of the injury. On the facts, we do not believe the charge could have misled the jury. C., R. I. & P. Ry. Co. v. Reames, 63 Tex. Civ. App. 29, 132 S. W. 978. At the same time we do not regard with favor departure from the approved form of submitting the question of proximate cause in negligence cases.

The writ of error was granted with special reference to the assignment of error on the refusal of plaintiff in error’s special charge No. 7, which reads:

“If you find from the evidence that the plaintiff, Dilley, at the time of the injury was assistant engineer of the defendant, and that in the absence of the engineer, Hogan, he took Hogan’s place, and if you further find from the evidence that at the time of the injury and prior thereto, while plaintiff was preparing to cleanse the coil, Hogan was absent and the plaintiff, by virtue of being assistant engineer, was in Hogan’s place, you are then instructed that, unless you find from the evidence that Hogan, before he left, told the plaintiff that all the gas and pressure had been blown out of the high-pressure coil, and unless you further find that in the exercise of ordinary care plaintiff relied upon said statement and acted thereon, you will find for the defendant.”

Careful consideration leads us to conclude that the charge requested was properly refused. As applied to the act of negligence on the part of the employer, in failing to exercise ordinary care to furnish a reasonably safe solution tank, for the use which its employé, the defendant in error, was expected to make of it, the charge is plainly erroneous, unless we can find from the record, as a matter of law, that defendant in error, when acting in Hogan’s place and in his absence, became charged with the duty of the master with respect to furnishing or inspecting or testing the solution tank. The record does not warrant such a finding from uncontradicted facts. The evidence is undisputed that plaintiff in error, acting through Engineer Hogan, directed defendant in error to use the very tank which the jury were authorized to find was dangerous for such use.

The general manager of plaintiff in error’s factory testified that the tank belonged to the company, and, so far as he could see, was in good shape, and the only way to determine what pressure it would stand was by a test, and that such a tank might stand 1000 pounds pressure. The tank seems never to have been tested and did not withstand 750 pounds pressure.

We find no direct evidence that either Hogan or his assistant was required or expected to examine or test the tank, except that defendant in error testified:

“I didn’t test it. I don’t know anything about those tanks. I didn’t work in that capacity, and had no business to test them. 1 had other things to look after.”

According to plaintiff in error’s general manager, the assistant engineer was supposed to take the place of a “machinist in ordinary factories.”

At most, the evidence raised merely a question of fact as to whether defendant in error, though qcting in the engineer’s place, was a vice principal as respects inspecting or testing the solution tank. Hence it would have been error to direct a verdict, on that issue, on the mere finding that defendant in error was in the engineer’s place. Nicholds v. Crystal Plate-Glass Co. (Mo.) 27 S. W. 519 (3); Id., 126 Mo. 55, 28 S. W. 999; Sanders v. H. & T. C. R. Co. (Tex. Civ. App.) 93 S. W. 139; 3 Labatt’s Master and Servant, § 899.

Nor do we think the requested charge was free from error as applied to the negligence alleged by reason of the failure of defendant in error to exercise proper care to see that the high-pressure coil was reasonably safe for use by defendant in error at the very time of his injury. The charge instructs the jury that plaintiff in error could not be guilty of negligence in this respect if defendant in error was acting in the place of the engineer, unless the latter stated to him “that all the gas and pressure had been blown out of the high-pressure coil.” The only witness who testified that the engineer made the quoted statement was the defendant in error. The jury might have found that no such statement was made, and yet have found, on other testimony: First, that a high-pressure coil had not been cleaned, at this factory, by means of connection with a charged tank, containing a solution, until the day preceding defendant in error’s injury, and that defendant in error was not then present, and had no knowledge of how the work should be done; second, that plaintiff in error, acting by Engineer Hogan, with full knowledge of the necessity to have the gas blown out of the high-pressure coil, before connecting same with the solution tank, directed defendant in error to go ahead and wash out the coil, and assured him that everything was ready to wash same out, and that thereupon defendant in error proceeded to connect the coil with the solution tank, causing the explosion. Such facts would certainly warrant the finding of actionable negligence, and yet might all be present, though the jury did not believe that the engineer expressly assured defendant in error that all the gas and pressure had been blown out of the coil.

The remaining assignments present no reversible error, and the judgments of the Court of Civil Appeals and district court are affirmed.
      &wkey;jFor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes