text:
    ENGLEFIELD v. INTERNATIONAL & G. N. RY CO.
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 15, 1913.)
    1. Railroads (§ 351) — Crossing Accident-Actions — Instructions.
    In an action for injuries to a person who attempted to pass between the cars of a train which was blocking a crossing, an instruction that the elements of negligence charged were the blocking of the crossing for over five minutes, moving the cars without any signal, and failure to station some person at the crossing to warn persons about to pass through the train, and that even if defendant or its employes did block the crossing for five minutes or failed to give a signal before moving the train or failed to station a person there to warn those about to pass through the train, unless such failure in these particulars or in any of them proximately contributed to the accident and was the proximate cause thereof, such failure was immaterial and furnished no basis for a recovery, could not have misled the jury to believe that they could not consider the blocking the street as a proximate cause alone or in conjunction with the starting of the train without a signal.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    2. Appeal and Error (§ 1170) — Harmless Error — Instructions.
    Under rule 62a for Courts of Civil Appeals (149 S. W. x), providing that no judgment shall be reversed on appeal for errors during the trial unless the court shall be of the opinion that the error complained of was such a denial of appellant’s rights as was reasonably calculated to cause the rendition of an improper judgment or such as probably prevented appellant from making a proper presentation of the case on appeal, the giving of a special instruction, which was unnecessary because a repetition of the general charge, was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    3. Trial (§ 229) — Instructions—Repetition.
    In an action for injuries to a person who attempted, as he claimed, to pass between the cars of a train which was blocking a crossing to notify the trainmen to move the train, the general charge submitted the issue whether his act in passing between the cars or climbing over the couplers was a want of ordinary care on account of his companions having admonished him or independently of that consideration. A special charge directed the attention of the jury specifically to the issue whether he used ordinary care in the method he adopted of carrying out his purpose of communicating with one of the trainmen. Held, that the special charge was justified and was not erroneous as unduly repeating an issue already submitted in the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §, 513; Dec. Dig. § 229.]
    4. Witnesses (§ 268) — Cross-Examination —Scope.
    In an action for injuries to a person who attempted to pass between the cars of a train which was blocking a crossing, where plaintiff was himself a railroad employé but not of defendant and testified freely concerning the customs of railroads and relied thereon, it was not error to permit defendant to show on his cross-examination that, being familiar with such rules and customs, he knew that railroads prohibited employes, even in their line of duty, from working or going between the cars when they had been drinking or carousing, as it was claimed be had been, thus showing his knowledge of the dangerous character of his act.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dee. Dig. § 268.]
    5) Witnesses (§ 282) — Cross-Examination —Leading Questions.
    It was not error to exclude a leading and suggestive question asked a witness on cross-examination as to whether it was not a fact that plaintiff asked his brother-in-law, with whom he was riding, to go on home with him, where this matter was not covered by the direct examination, especially where the witness did testify that', if plaintiff tried to get his brother-in-law to let the witness take him home, he paid no attention to it and did not know.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 927, 989; Dec. Dig. § 282.]
    Appeal from District Court, Harris County ; Wm. Masterson, Judge.
    Action by E. F. Ehglefield against the International & Great Northern Railway Company and another. From a judgment in favor of the defendant named, plaintiff appeals.
    Affirmed.
    John Lovejoy and Presley K. Ewing, both of Houston, for appellant! Wilson, Dabney & King, of Houston, for appellee.

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

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

   MOURSUND, J.

Appellant sued appellee and Thos. J. Freeman, receiver, for damages for personal injuries sustained by him by being caught between certain cars of appellee which were blocking a public street in the city of Houston, alleging that he was riding in an automobile which was being driven for his brother-in-law, Theodore Dreyling, Jr., by a hired chauffeur, in which there were several other passengers, and that they came upon the freight cars of appellee blocking the street and preventing their passage; that they were detained by said cars so blocking said street for over ten minutes, and desiring to go forward, and believing the train would remain there an indefinite time, plaintiff attempted to pass between said stationary cars to go on the opposite side of the train for the purpose qf getting the rear brakeman, who was supposed by plaintiff to be on that side and about that point, to flag the engineer to move the train; that, while attempting to cross over between said ears, appel-lee’s servants caused the same to be moved suddenly, whereby he was caught between them and injured; that an ordinance of the city of Houston was in force prohibiting trains of cars from remaining upon any public street crossing for more than five minutes, also an ordinance requiring engineers or persons in charge of an engine to cause the bell to be rung continuously while the engine or ears are in motion;. that it was usual and customary, when cars blocked the streets, for the traveling public to pass between and across the cars, and this was known to the employes in charge of the train, and they ought in the exercise of reasonable care to have expected persons to have been between said cars where they would likely be injured if the cars were moved suddenly without due warning or provision made for the protection of persons using said street crossing; that it was usual and customary in moving trains, which had blocked the crossing in said city for more than five minutes, for those in charge thereof to give a signal by bell and whistle before moving the train and to give a reasonable time after signal before moving the train which custom was known to and relied upon by plaintiff; that said train ought to have been so handled as not to block the street or else appellees should have had some one at said crossing to warn persons desiring to cross of a contemplated movement of the cars or by signal or otherwise seen that they crossed without exposure to danger from such source; that plaintiff’s injuries were proximately caused to him: (1) By negligence of the defendants, and each of them, in permitting said cars to remain standing on and blocking said public street crossing within the corporate limits of said city of Houston, and particularly in doing so for an unreasonable length of time and for a longer period than five minutes, and in suddenly moving said cars without giving any reasonable or adequate warning or signal thereof, especially without blowing the whistle and without the engineer or person in charge of the engine which moved said train of cars causing the engine bell to be rung continuously whilst such engine and cars were in motion; and (2) by negligence of the defendants, and each of them, in suddenly setting said ears and train in motion without any provision for the protection of persons that might be using the street crossing, and particularly in failing to have any one there to warn persons of the public desiring to cross of a contemplated movement or by signal or otherwise seeing that they crossed without exposure to danger from such source.

Defendant answered by demurrer, general denial, and plea of contributory negligence, alleging that plaintiff was not in their employ, and that he was negligent in going between the cars as he did; that plaintiff had spent the day in debauchery, drinking, and evil associations; that he was intoxicated, nervous, and excited, and in this condition went between the cars for the purpose of uncoupling them; that he was a railroad man, had been a car repairer, and was then a fireman in the employ of the Southern Pacific Railway Company and knew, or ought to have known, that the cars were liable to be moved and assumed the risk of his perilous enterprise; that he had been working with the mechanism of the cars in an effort to uncouple them and had uncoupled them, his object being that when there should be a movement of tbe ears the train would open up; that he and his companions could have made a detour and proceeded on another street or waited a few moments; that he did not pursue the safe course; that if he did undertake to climb the couplings, as he stated he did, he was negligent, and his negligence was an independent cause and in the alternative contributory.

On trial plaintiff dismissed as to Thos. J. Freeman, receiver, and there was a verdict for the defendant.

By the first assignment of error appellant complains of the giving of the following special charge: “The elements of negligence charged by the plaintiff against the defendant railway are blocking the crossing for over five minutes, moving the cars without any signal, and failure to station some person at the crossing to warn persons about to pass through the train. Now, you are instructed that even if the defendant railway, or its employes, did block the crossing for five minutes, or did fail to give any signal before moving the train, or did fail to station any person at the crossing to warn persons about to pass through the train, nevertheless, unless you believe that such failure in these particulars, or in any of these particulars, proximately contributed to the accident and was or were proximate cause or proximate causes thereof, as I have defined to you proximate cause or causes, then such failure became entirely immaterial and, although it existed, furnishes no basis for a recovery.”

The first proposition is as follows: “The special charge was inapplicable to the case and error, which was probably injurious to plaintiff, as reasonably calculated to induce the jury to exclude from mind the unlawful blocking as a proximate cause and, if finding that the unlawful blocking was not a proximate cause, to give their verdict in favor of the defendant on the issue of proximate cause.”

We have carefully considered the contention made by counsel for appellant but cannot agree with them that this charge misled the jury to believe that they could not consider the blocking of the street as a proximate cause. The charge permitted them to find the blocking of the street alone to be a proximate cause, or the failure to give a signal before moving the train, or failure to station a person to warn people. It permitted them to find a failure in all these particulars or any of them to constitute proximate cause or causes, and we do not think a jury would, especially when the main charge of the court so clearly shows what elements of negligence are relied upon, be led to believe from said charge that they could not consider in conjunction the blocking of the train and starting the same without signal.

The second proposition is that such charge was improper as unduly repetitious of the main charge and of its own terms. We regard the charge as unnecessary because repetitious of the general charge but do not think that the giving thereof was such error as to require or justify a reversal of this case. Rule 62a for Courts of Civil Appeals (149 S. W. x).

By the second assignment it is contended that the court erred in giving special charge No. 13; the contention being that such charge was improperly argumentative and unduly repetitious of the general charge, in a manner reasonably calculated to affect the verdict. While accompanied with an unnecessary statement of the issues, the charge is not argumentative, nor do we think it unduly repeats an issue already submitted in the general charge. It merely directs the attention of the jury specifically to the issue whether plaintiff used ordinary care in the method he adopted of carrying out his avowed purpose of communicating with one of the train crew, if such was his purpose. The general charge submitted the issue whether plaintiff’s act at the time and under the circumstances, in passing between the cars or climbing over the couplers, if he did, was a want of ordinary care, either on account of plaintiff’s companions having admonished him or independently of that consideration. In view of the language of the general charge, we think the special charge was justified, and we do not think the preliminary statement of the contentions of the parties could have harmed plaintiff’s case in any manner. The assignment is overruled.

By the third assignment appellant complains because defendant was permitted to prove by plaintiff on cross-examination that being familiar with the rules and customs of railroads in Houston, including the defendant, he knew that railroads prohibited men in their employ from working between the cars or going between the ears, even in their line of duty, when they had been drinking or carousing. We do not consider this evidence irrelevant. Appellant having testified freely concerning the customs of railroads, and relying upon the same, it was permissible to show his' knowledge of a rule which conveyed to him the information that the working about or going between cars was of such dangerous character it was necessary to absolutely prohibit persons from doing so if they were under the influence of intoxicants. The assignment is overruled.

By the fourth assignment complaint is made because plaintiff’s attorney was not permitted to ask the witness Denina on cross-examination whether it was not a fact that when they got in his automobile, before they started out to the reservation, plaintiff asked Dreyling to go on home with him. Whether a question as leading and suggestive as this question should be permitted must be left largely to the discretion of the trial judge. The question related to a matter concerning which the witness had not testified when examined By defendant’s attorney, but it appears that he did testify on cross-examination that he knew nothing about plaintiff trying to get his brother-in-law to let the witness take him home, that they were talking together, and, if plaintiff did try to do that, witness paid no attention to it and did not know. The assignment is overruled.

Judgment affirmed.


source: Caselaw Access Project

author: RASBURY, J.

license: Public Domain

text:
    SERGEANT v. GOLDSMITH DRY GOODS CO. et al.
    (Court of Civil Appeals of Texas. Dallas.
    June 28, 1913.
    Rehearing Denied Oct. 18, 1913.)

      X. Insurance (§ 687) — Construction of Contract — Status of Members — Papers to be Considered.
    .While the plan of an unincorporated insurance association, as disclosed by the application for membership and the contract of insurance entered into by the members with each other, cannot affect third persons, yet in fixing the legal status of its members such plan may be examined to ascertain the nature of the association.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1824; Dec. Dig. § 687.]
    2. Insurance (§ 687) — Mutual Benefit Insurance-Nature and Status.
    Where the plan of an unincorporated insurance association provided that each member should make a cash deposit from which to pay losses, the unexpended portion to be returned to the member at the expiration of his policy, the expectation being that the members would thereby secure a cheaper insurance, while the plan contemplated mutual fire protection, it was also for mutual profit and advantage and not merely for benevolent, charitable, etc., purposes, though the plan contemplated the nonaccumulation of profits.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1824; Dec. Dig. § 687.]
    3. Insurance (§ 694) — Mutual Benefit Insurance — Liabilitt of Members to Third Persons.
    The members of an unincorporated insurance association, operating under a plan whereby members make a deposit from which to pay losses and the business is run by a manager, the object being cheaper insurance, are liable for any debts incurred during their period of membership, and any agreement between the members limiting their liability would no more affect third persons than a similar agreement in an ordinary partnership.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1834, 1835; Dec. Dig. § 694.]
    4. Insurance (§ 694) — Mutual Benefit Insurance-Rights of Members as to Each Other.
    The rights and liabilities of the members of an unincorporated mutual benefit insurance association, as between themselves, are governed by the provisions of the application for insurance and the policy contract issued thereon.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1834, 1835; Dec. Dig. § 694.]
    5. Insurance (§ 735) — Mutual Benefit Insurance-Construction of Contract — Liability of Members for Losses — Lloyd’s Insurance.
    The members of an unincorporated mutual benefit insurance association, the losses of which are ordinarily paid from deposits made by the members, but the policies of which provide that the members agree to pay any loss in the proportion that the amount of their deposits bear to the total deposits, are liable upon such policies in that proportion; such plan being different from Lloyd’s insurance, where policies are issued to third persons as well as members and losses are paid from a trust fund contributed by the members.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 735.]
    6.Insurance (§ 694) — Mutual Benefit Insurance-Liability of Members for Losses — Corporations as Members.
    The liability of the members of an unincorporated mutual benefit insurance association for losses, under a' plan whereby a manager was appointed to carry on the business, the losses being payable by the members, is based on the principle of agency, and a corporation cannot escape liability on the ground that it could not become a member of a partnership, for, while the liability is similar to the liability of partners, the arrangement did not constitute a co-partnership.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1834, 1835; Dec. Dig. § 694.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by George Sergeant, as receiver of and trustee for creditors of the Commercial Underwriters, against the Goldsmith Dry Goods Company and others to charge the defendants, as members of the unincorporated association known as the Commercial Underwriters, with personal liability for its debts. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Meador & Davis, of Dallas, for appellant. Madden, Trulove & Kimbrough, of Amarillo, and Read & Lowrance and Spence, Knight, Baker & Harris, all of Dallas, for appellees.

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

   RASBURY, J.

This appeal grows out of a suit filed by George Sergeant, as receiver of the Commercial Underwriters, an unincorporated insurance association, and as trustee for a large number of parties asserting claims against said Commercial Underwriters. Some 1,300 persons, firms, and corporations were named as defendants in the court below, all of whom were alleged to be engaged in the fire insurance business among themselves under the assumed name of the Commercial Underwriters, but who were charged to be in law a partnership association and liable as such under the facts hereinafter related. Sergeant was appointed receiver by Hon. Kenneth Foree, judge of the Fourteenth district court of Dallas county, in a proceeding against the Commercial Underwriters had for that purpose. A master in chancery was also appointed, and all those bringing the suit had prior thereto presented their claims to the master in chancery who heard, considered, and allowed same against the Commercial Underwriters as such. Judge Foree, after hearing exceptions to the master’s report, in like manner allowed the claims and entered judgment therefor against said Commercial Underwriters. Thereupon, as we have said, this suit was filed against the individual members of the association. Service of citation was had only upon” Goldsmith Dry Goods Company, Strickland Furniture Company, Mistrot-Munn Company, Schwartz & Co., King Lumber Company, J. M. Radford Grocery Company, Panhandle Lumber Company, the Matthews Company, Boatman Hardware Company, and Rodgers-Wade Furniture Company. Before trial the receiver dismissed the suit as to all other defendants not served. Upon trial the above-named parties, defendants in the court below, urged a general demurrer to the sufficiency of the petition of the receiver seeking to hold them responsible as partners for the claims enumerated. The general demurrer was sustained. The receiver declined to amend and judgment was entered for said parties. From that judgment the receiver has appealed.

The facts alleged by appellant, and which the trial court held, if true, constituted no liability on the part of appellees, are in substance as follows: Prior to the filing of the instant suit George Sergeant was appointed receiver of the Commercial Underwriters, an unincorporated insurance association, by Judge Kenneth Foree of the district court of Dallas county and duly qualified as such. When Sergeant was appointed, the association was and still is insolvent, having no money on hand with which to pay its debts, except about $1,000, collected by (Sergeant after his appointment. As receiver and trustee he filed this suit against a large number of individuals,. firms, and corporations, seeking to hold them liable for the debts of the association, all of whom were members of the association at the time the debts were incurred. He dismissed his case against those who were not served before announcing ready for trial. The Commercial Underwriters was .the name assumed by and under which the appellees and all other persons, firms, and corporations accepting a policy of fire insurance issued by the association operated a .plan of co-operative or mutual fire insurance for insuring themselves against loss or damage by fire. Just how the initial start in business was made does not appear from the petition, but it does appear that, at the time of the transactions set out in the. petition, the plan was in actual operation and the business of the association being actively conducted. As bearing upon the rights and liabilities of the members of the association or those holding policies in the association, the plan was to make application to the manager for insurance; and, before a policy or contract for insurance was issued, the applicant was required to sign and present to the manager of the association the following written application, to wit:

“The Commercial Underwriters at the Insurance Exchange, San Antonio, Texas. Advisory Committee: A. G. Castanola. J. C. Tips. Franz Groos. Application and Agreement for Insurance. Application of Herman and Schlok bt the Commercial Underwriters, subject to the approval of the advisory committee, and upon the following plan here agreed to for maintaining an office where policies of fire insurance may be underwritten for the firms, corporations, or individuals herein called subscribers:

“(1) The business shall be under the supervision of a committee of subscribers elected annually, who shall monthly scrutinize all new or proposed subscribers; requesting the rejection of any who, in their opinion, are not up to the required standard acceptable at this exchange; who shall nominate one or more banks as trustee for receiving all funds paid by subscribers; who shall have direct supervision of these funds and of all expenses; who shall appoint an auditor to annually or oftener examine subscribers’ accounts; and who shall adopt such proper regulations as they deem necessary — which shall not, however, conflict with the stipulations herein.

“(2) The manager’s duties shall be to underwrite for the subscribers in his own name as manager policies of insurance against loss or damage by fire or lightning; to re-insure same; to make cancellations and changes in the amounts and conditions of same; to collect all sums due from subscribers by virtue thereof; to adjust and settle any loss; and to perform, such other acts in relation to such policies as the subscribers could themselves do.

“(3) Each policy will be written under a similar form and at the same rate as required by stock insurance companies, but in lieu of the customary premium stated in each policy, each subscriber will make a cash deposit in proportion to said premium and in accordance with the experience of the exchange, and for this amount he shall be given credit. The sum named as each subscriber’s premium shall gauge his interest in the business in that an amount not exceeding under any policy such premium shall be underwritten severally for each subscriber.

“(4) Such portion of a subscriber’s deposit as shall not have been expended or be payable for losses or expenses shall be refunded to him upon the expiration of his policy or its termination, provided that where a policy is renewed, and the subscriber is not maintaining a reserve equal to one-half of his premium, that part unexpended may be retained for reserve, but to his individual credit, subject to return to him when he has ceased to be a policy holder.

“(5) The manager’s remuneration for the services and such clerical force as he may require shall be 15 per cent, of subscriber’s premiums. The committee is here authorized to charge an equitable amount against each subscriber’s account until all payments made toward establishing this exchange and which the committee has approved have been repaid.

“(6) If at any time or times a subscriber’s deposit or deposits under policies in force shall be expended or an additional deposit be deemed necessary or expedient by the committee, then it shall be the duty of said subscriber to pay to the trustee such sums as may be required; provided said sum shall in no case exceed the amount of the premiums on his policy or policies then in force. If a subscriber shall fail to make a deposit within five days following receipt of notice by registered mail, all policies held by that subscriber shall thereafter be void.

“(7) Each policy, issued shall be subject to cancellation by the assured or by the manager upon five days’ notice, and the unex-pended portion of the premium deposit shall thereupon be refunded to the subscriber, together with his portion of any surplus or reserve in trustee’s hands.

“(8) The manager may commence and prosecute any proceeding at law in connection with any policy issued by him which he may deem proper and may compromise, settle or withdraw the same, also may appear for the subscribers in case of any proceedings at law being taken against them in connection with any policy, and in their name defend, compromise or settle same.

“(9) The undersigned hereby appoints O. W. Cannon of San Antonio, Texas, to act as manager herein referred to, and the manager may select and deputize some other person, approved by the committee, to exercise the same powers as held hereunder by him, and who, in the event of the decease or disability of the manager, shall assume that title.

“(10) The committee, who shall act for the undersigned as above provided, during each calendar year, shall consist of three or more subscribers (or members of firms or corporations who are subscribers) who shall be selected by a majority of the subscribers responding in writing to a notification, which the manager shall send to all subscribers on the 10th day of December, vacancies from any cause may be filled by a vote of the remaining members.

“Nothing herein shall be construed to obligate in any - manner the subscriber hereto, until he shall elect to become a policy holder and thereafter only while holding a policy.”

The policy issued upon the foregoing application contained the provisions and conditions usually found in standard fire insurance policies and in addition the following:

“This contract and agreement by and between the persons, firms, and corporations known as the Commercial Underwriters, being subscribers at the Insurer’s Exchange (each acting through their duly appointed and accredited attorney in fact, C. W. Cannon, known as ‘Manager for the Commercial Underwriters’) and hereinafter nominated the ‘Exchange,’ parties of the first part, and Hol-lon & Pratt, Klondike, Texas, hereinafter nominated ‘holder of this contract)* party of the second part, witnesseth:

“In consideration of the stipulations herein named, and upon the terms and conditions herein expressed, and in further consideration of a deposit of one hundred, forty and no/100 dollars, and in the making in advance to the Commercial Underwriters at Insurer’s Exchange in the city of San Antonio, Texas, of a similar deposit upon the first day of March in every year during the continuance of this contract, the parties of the first part do severally, each for himself or itself, and not jointly, no one being bound for any other, hereby guarantee to indemnify the said I-Iollon & Pratt, party of the second part,, from the first day of March, 1910, at noon, against all direct'loss or damage by fire, except as hereinafter provided, to an amount not exceeding four thousand dollars, to the-following described property while located and contained as described herein, and not elsewhere, to wit: * * * •

“By the word ‘exchange,’ as the same is used in this contract, is meant and the same shall be held to mean the persons, firms and corporations who, at the time of loss or damage accruing hereunder, are subscribers at the Insurers’ Exchange to the Commercial Underwriters, and the intent of such subscribers in signing this policy, through their attorney in fact, is and shall always be taken and held to be for the purpose of binding to the covenants, terms and conditions hereof, each and every person, firm and corporation, which is a subscriber, and none but those which are subscribers when loss -or damage accrues under this contract, and the responsibility of each subscriber is in the same proportion to the entire loss or damage hereunder, which such subscriber’s deposit or deposits, at the time of such loss or damage, bear to the aggregate of all deposits then in force. The subscribers are all those, and only those, who have accepted contracts of indemnity against loss or damage by fire, issued by this exchange, and whose contracts are then in force.

“To avoid a multiplicity of suits, all suits, or other proceedings at law or in equity shall be begun and maintained for the recovery of any claim upon, under or by virtue-of this contract against the manager of the-Commercial Underwriters in the. court, which, is the highest court of original jurisdiction and a final decision in such suit or other proceedings shall be taken to be decisive of the-similar claim, so far as the same may subsist, against each of the other subscribers at interest, absolutely fixing the liability in the-premises; each of the subscribers in consideration of this entire stipulation, so far as-he individually is or may be concerned, expressly agrees to accept and abide by the result of such final decision, in the manner and to the same effect as if he had been defendant in a similar suit or other proceeding as to the similar claim against him, so far as the same may subsist, save and except, however, as to the matter of costs and disbursements. And the manager is hereby authorized as to each subscriber to receive and admit service of process in any suit or other proceeding begun or maintained as aforesaid.”

The Claims allowed by the master in chancery and sued upon in the court below can be divided into three classes; the first being for debts due by the association to third persons incurred in conducting and maintaining the business, the second being debt due O. W. Gannon for compensation due him under contract, and the third being for the losses under their policies by members of the association.

Appellant’s first assignment of error challenges the correctness of the action of the court below in sustaining appellees’ general demurrer and asserts thereunder the proposition that the individuals, firms, and corporations holding membership in the association known as the Commercial Underwriters are liable as general partners for all the claims sued for by appellees. This proposition presents for review the relation of the members of the association to one another, their rights and liabilities in that respect, as well as the rights and liabilities of the members of the association to third persons. Inasmuch as the application for membership in the association and the policy issued by the association to each member herein referred to must to a great extent, if not wholly, control the relations between the various members of the association, it is obvious that the liability of the members to third persons is controlled by another and different .rule of law. Hence it becomes necessary, in order to determine the liability of the members to outsiders, to also ascertain what character of association appellees were members of, since that question to an extent affects their liability to such third persons.

While the plan of the association as disclosed by the application for membership and the contract of insurance entered into by the members with each other cannot affect third persons, yet, in fixing the legal status of the members of the association, such plan may be looked to for the purpose of ascertaining what manner of concern the association is, whether for mutual benefit and profit, as claimed by appellant, or whether for social, benevolent, charitable, or mutual fire protection, as claimed by appellees.

After careful consideration of the plan of the association as shown by the application and policy, we have concluded that, while the purpose of the association may have been for mutual fire protection, it was as much also for mutual profit and advantage. In short, ,to secure for its members fire insurance on the mutual plan at less than the then prevailing or stock company rates. Such purpose is indicated by section 3 of the application for membership and insurance wherein it is provided that the rate to be paid for insurance in the association shall be the same rate charged by stock insurance companies, but that, instead of paying such premiums, the person, firm, or corporation seeking membership and insurance in the association shall make a cash deposit, and the amount of the cash deposit is required to be only that proportion of the premium charged that the experience of the association shows will be necessary to meet the anticipated liabilities of the association under the policies issued. But that it was the understanding and the expectation of the members that their insurance would be secured at a rate less than the rate then prevailing among stock companies, and in proof of the fact that the members did pay less than the prevailing rate, is disclosed by section 6 of the application which provides that, if the sum deposited by the member shall have been expended presumably in payment of losses .to other members, then an additional payment may be demanded of members, provided such additional payment shall not exceed the amount of premiums fixed by this policy. ■ Such understanding is further evidenced by section 4 of the application, which provides for a return to the member upon the expiration of his policy of the un-expended portion of his cash deposit. As further disclosing the purpose of the association, the application and the policy issued to the members of the association show that membership commenced with the issuance of the policy and terminated with its expiration, and that any and every one approved by the committee of subscribers named in clause 1 of the application for membership was eligible to membership upon payment of the cash deposit already referred to, thus evidencing, beyond intelligent dispute, the organization and maintenance of an association having for its purpose the issuance of fire insurance policies to its membership and the payment of losses thereunder. The fact that the plan of the association comprehended the nonaccumulation of profits made the association none the less one engaged in affairs of business, since the saving of the profits of the ordinary stock insurance companies by insuring the property of the members at a less rate is but another method of profiting by the association and evidences a business totally unlike voluntary unincorporated associations having for their purpose charity, benevolence, or pleasure.

These observations are made, of course, in reference to the liability of the members of the association to third persons, for, as to third persons, we think “each member * * * is liable for the debts thereof incurred during his period of membership and which have been necessarily contracted for the purpose of carrying out the objects for which the association was formed.” 4 Oyc. 310. While it is true that most of the adjudicated cases dealing with the liability of individual members of associations have reference to unincorporated joint-stock companies in which the members of the association hold either stock certificates or other evidence of his interest in the association and in which the concern dealt more generally with the public than in the instant ease, as, if for example, the Commercial Underwriters had insured the public against loss by fire without limitation on -its liability, nevertheless we can see no real distinction as to the liability of members of such associations and the one in the instant case to third and noninsuring persons for debts incurred by the association in conducting its business. Any intended or, for that rdatter, express limitation among the members of their individual liability could no more control the rights of third persons than could a similar agreement between the members of an ordinary partnership. Members of such associations must know that liability of no small extent to third persons will be incurred, and to say that such associations may be permitted to distribute the ordinary profits of a fire insurance concern among themselves in cheapened rates and yet not be liable for the debts incurred in that behalf is to do violence to well-settled rules of law and equity. The members of the association are individually liable because they are all principals and, being principals, are bound in the same manner and for the same reason that members of an ordinary partnership are bound. Lewis v. Tilton, 64 Iowa, 220, 19 N. W. 911, 52 Am. Rep. 436.

The case nearest in point cited by appellant is Davison et al. v. Holden et al., 55 Conn. 103, 10 Atl. 515, 3 Am. St. Rep. 40. A number of individuals, as disclosed by that case, under the assumed name of the Bridgeport Co-Operative Association, conducted a business for the purpose of furnishing meat to its members and others at cost price. It was not intended by the members of the association to realize, nor did the business in fact result in, profit to them other than enabling them to dispense with the middleman; members paying for meat at the market in the usual manner. Officers elected by the members supervised the business. The amount of membership subscriptions was unknown, except that such subscriptions were from 5 cents to $5. Nor did it appear that the members assumed any liability for the debts of the association or that credit was extended to same on account of such membership. Creditors who had furnished supplies to the association sued certain members of the association, and in holding them bound for the debt the court say: “It did not otherwise appear than from the above facts that any of the members of the association ever held themselves out as partners or as being liable as individuals for the obligations of the association, or that the plaintiffs or any other persons ever gave credit to them, either as individuals or as partners, or that the members- entered into any agreement of copartnership among themselves or into any agreement or understanding by which they or any of them should become personally liable for the debts of the association. 'The defendants claimed that they were not liable either as individuals or as copartners. The determination of the controversy as to the liability of the defendants depends not at all upon the question whether they and the other associated individuals were partners as between themselves, nor upon the question whether, as between all of the associates and strangers, they were such, but upon the law of agency. If the defendants clothed an agent with unrestricted authority to buy, they must pay, regardless of the other questions. Upon the record the defendants, with others undisclosed, associated themselves, for commercial purposes, for their pecuniary advantage. Eor convenience they transacted business under an assumed associate name, sent their managers and agents into the market with unrestricted authority to buy goods and pledge their credit under that name, to buy for the benefit of all jointly and of each individually. In the due execution of the authority conferred upon them they contracted the debt in suit and pledged the joint and several credit of the associates. As a matter of law, the plaintiffs, in giving credit to the associate name, gave credit to the individuals whom upon inquiry should be found to stand behind it. It is of no legal significance that the defendants did not intend to be individually responsible, or that they did not know or believe that as a matter of law they would be, or that they intended that the goods when bought should become the property of the association. Having given to the agent unrestricted authority to buy, their secret intent as to the ultimate destination of the merchandise is of no avail. The rule that he who instructs his agent to buy can be made to pay stands quite independent of intent or knowledge. He who buys by an agent buys by himself, and the law imputes to him knowledge that he must pay and the corresponding intent to pay for what he buys.”

It is proper here to call attention to the similarity in the purposes of the plan of insurance in the instant case and that of the plan of conducting the store for the members in the case just cited. In the instant case the purposes of the plan and the benefit to be received by the members was cheapened insurance, while in the case cited the purpose of the plan and the benefit to be received was cheapened meat. The single point of difference, if it is a difference, was that in the cited case any one could buy the meat, while in the instant case only those approved by the committee could secure insurance. A similar holding will be found in Hodgson et al. v. Baldwin et al., 65 Ill. 532, while the doctrine is in effect supported in Lumber Co. v. Texas Pine Land Association, 31 Tex. Civ. App. 375, 72 S. W. 875.

In view of what we have said, it follows that we are of opinion that the members of said association are individually liable for the debts incurred by their manager and others in conducting and maintaining the business of the Commercial Underwriters during their membership, and that the court below erred in sustaining the general demurrer in that respect.

As indicated at another place in this opinion, we conclude that the rights and liabilities of the members of the association among themselves are to be determined and controlled by the provisions of the application for insurance and the policy contract issued thereon. Accordingly the rule of law that holds the members individually liable to third persons has no application to demands growing out of losses under policies of insurance, as maintained by appellant.

The contract of insurance between the members, and it must always be kept in mind that the purpose of the association was for insuring members only, consists of the application and policy; the salient and controlling parts being those copied herein. Section 3 of the application, as we have said, provides for the cash deposit we have hereinbefore referred to and expressly declares that ‘each member individually underwrites the policy losses only to the extent of his deposit or premium. Section 6 of the application provides in effect that the difference between the cash deposit and the stated premium -may be collected from each member when the association’s funds are insufficient to pay losses. Nowhere in the application, it will be noticed, is any attempt made to fix individual liability in the event the original cash deposit and the subsequent authorized assessment is insufficient to meet all losses or there is a total lack of funds to pay such losses. In the policy contract, however, there are certain provisions that do fix the ultimate rights and liabilities of the members. These provisions, as we have said, are the stipulations added by the association to those usually contained in the standard stock company insurance policies. At the inception of the contract it is recited that, in consideration of the payment of the premium demanded, each member of the association in issuing the policy under the authority of their authorized attorney in fact “do severally, each for himself or itself, and not jointly, no one being bound for any other,” agree to indemnify the member holding such policy against loss or damage by fire, etc., to the amount named in such poiicy. This appears to be an outright unqualified obligation by every member to pay the loss. For the evident purpose, however, of limiting such apparent unqualified liability, the succeeding stipulation contains the provision that “the responsibility of each subscriber is in the same proportion to the entire loss or damage hereunder which each subscriber’s deposit or deposits at the time of such loss bear to the aggregate of all deposits then in force.” By these provisions, taken from both the application and policy contract, the liability of the members is to be measured, and to the extent of such liability each is necessarily an insurer during his membership for all policy holding members during their stay in the association. Appellees contend that there is no liability of the members to one another for the reason that the policies issued by the association were Lloyd policies. To the extent that the policies fixed the measure of each member’s individual liability, the similarity ends.

Lloyd’s insurance, so named because the scheme originated among the habitués of Lloyd’s coffee house in London (25 Gyc. 1524), was insurance based upon a fund made up of deposits by each member of the association, and from which fund in ease of loss the means of payment was taken. Those writing Lloyd’s insurance were not, as in the instant case, organized for the single' purpose of insuring themselves but third persons. Under the Lloyd’s method each member contributes a portion of a trust fund to pay losses and accepts from the insurer his premium against the chance of loss on the policy of insurance. The members of the Commercial Underwriters created no fund other than any that might result from the premiums paid in and, in lieu of the trust fund contemplated by the ordinary .Lloyd’s policy, fixed the liability of each member by the clause quoted, In short, in lieu of the trust fund, which is the dominating feature of Lloyd’s insurance, the members agreed to pay upon every loss that portion thereof that their cash deposits bear to all cash deposits in force at the time of any loss. Literally, if any given member had paid in 10 per cent, of all cash deposits in force at the time of any given loss, he would in like manner be compelled to pay 10 per cent, of the loss represented by such policy. By the Lloyd’s method each member’s liability would be determined by dividing the total amount of the policy by the number of underwriters forming the association or by taking from the general fund the proportion thereof contributed by each member. The language of the clause which we have quoted is plain and unambiguous, and we fail to see how it can intelligently be urged that it did not intend to indicate personal liability. Particularly is this true when it is considered that the single purpose of the association was to secure cheapened insurance, first,, by paying in less than the fixed and agreed premium, second, by paying in balance of premium only when original payment was insufficient, and, third, by dispensing with the usual trust or reserve fund in such concerns and substituting therefor a limited and fixed personal liability. We think the intention to do so, as evidenced by the application and policy contract, is clear; clear enough at least that such intention follows as matter of law. Accordingly we hold that each member holding a policy of insurance in the association at the time of loss under any such policy was bound individually in the ratio or proportion indicated by the clause quoted.

Appellees assert that corporations cannot become copartners with other corporations nor with individuals, and that, since the receiver’s petition alleged such a copart-nership, the demurrer was properly sustained. The allegations of fact set out in the receiver’s petition did not, as to third persons or among themselves, constitute a copartnership, and the fact that the petition denominated the association a copartnership is immaterial. In the first subdivision of this opinion we hold that the members of the association as to third persons are bound as partners would be bound, not that they were members of a copartnership. As said in Davison, v. Holden, supra, appellees’ liability depends not at all upon- whether they are partners between themselves or as to third piersons but upon the law of agency. Hence we think the rule of ultra vires has no application.

What we have said in effect disposes of all the issues in the case, and for the reasons indicated the judgment is reversed, and the cause remanded.


author: RAINEY, C. J.

text:
    ST. LOUIS & S. F. R. CO. v. COX.
    (Court of Civil Appeals of Texas. Dallas.
    June 21, 1913.
    On Rehearing, Oct. 18, 1913.)
    1. Master and Servant (§ 256) — Injuries to Servant — Petition — Allegation of Law Governing Action.
    Where a petition for personal injuries received by a railroad employs in Oklahoma alleged a good cause of action under the laws of Texas, it need not specify whether- the plaintiff claims the right to recover under the laws of Texas, of Oklahoma, or of the United States; but, if the rights of the plaintiff are in any way affected by the laws of Oklahoma or of the United States, the defendant should plead and prove such fact.
    [Ed. Note. — P'or other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.]
    2. Master and Servant (§ 293) — Injuries to Servant — Instructions — Methods of Wore:.
    In an action for injuries received by a ■railroad freight handler, who was directed by a checking clerk to unload his truck in a certain way, an instruction that it was the duty of the company to exercise ordinary care to furnish the plaintiff with reasonably safe means and manner in which to perform his work is not erroneous as requiring the company to prescribe rules and regulations for the doing of such work but refers to the method of unloading the truck as directed by the clerk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1150, 1158-1160; Dec. Dig. § 293.]
    3. Trial (§ 296) — Harmless Error — Instruction Cured by other Instructions.
    If the instruction was erroneous, it was harmless where it was followed by a charge correctly applying the law to the facts.
    TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296; Master and Servant, Cent. Dig. § 1208.]
    4. Master and Servant (§ 1S9) — Injuries to Servano>-Negligence of Fellow Servant — Person Engaged in Superintendence.
    A railroad is not liable for injuries to a freight handler caused by the negligence of the clerk who checked the freight and directed its placement in the warehouse, and who had the right to select the manner in which the truck should be unloaded, but who had no power to employ or discharge workmen, since the clerk was a fellow servant and not a vice principal of the freight handler.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dec. Dig. § 189.]
    Appeal from District Court, Grayson County ; W. M. Peck, Judge.
    Action by S. E. Cox against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Andrews, Ball & Streetman, of Ft. Worth, and Head, Smith, Hare, Maxey & I-Iead, of Sherman, for appellant. Randell & Randell and Jones & Hassell, all of Sherman, for ap-pellee.

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

   RAINEY, C. J.

This suit was brought by appellee against appellant to recover damages for personal injuries sustained by him while engaged as a trucker in appellant’s service at Hugo, Okl. Appellant answered by general and special exceptions, general denial, contributory negligence, and that the cause of action was governed either by the laws of Oklahoma or the federal Employers’ Liability Act, and that under either of said laws plaintiff assumed the risk of injury from the manner in which the work was being done. A trial resulted in a verdict and judgment for plaintiff, and defendant appealed.

Conclusions of Fact.

Appellee was in the employ of appellant at Hugo, Okl., as a trucker and had worked as a trucker for 14 months. When hurt he was trucking freight from a car on the track into the warehouse of the railway company. 1-Ie testified: “I was transferring freight from one car to another and from cars into the freight depot at Hugo. They had a freight house there where they placed freight that was brought into Hugo for merchants and other people there. Every day that I worked I had something to do with taking freight into that house. The freight was trucked on two-wheel trucks. We would roll it in there on the trucks. We had to unload in the house to keep the stuff in station order. Every man’s shipment was piled in one pile separate. That was unloaded under the direction of Mr. Reams. As well as I remember it was between 2 and 3 o'clock in the afternoon of Thursday, August 11, 1910, that I was injured. Just before I was hurt I rolled a load of paper in the house for the I-Iusonian Publishing Company — press paper. They were rolls of paper and weighed 110 pounds to the roll. I had four rolls on my truck. It seems to me like Kiser Laddie loaded that at the car. I had nothing to do with the loading of it. I had to carry it into the house and, under the direction of Reams, unload it. There were four rolls of 110 pounds each, which would be 440 pounds on the truck. When I got that loaded truck into the house, I rolled it up by the side of the paper in the same shipment. They were stacked something like 4 or 4% feet high. Then I started to stand my trucks up in order to let the paper dump on the floor in front of the trucks. When I had hold of the two handles of the truck, I would be facing the paper; and I was going to dump that over on the floor, but I didn’t do that because Mr. Reams instructed me not to do it. Mr. Reams says, ‘Back your truck up, Sam, and let the handles down.’ My name is Sam Cox. He says, ‘We will unload from the trucks;’ and I says, ‘Mr. Reams, the truck will dump;’ and he says, ‘They won’t do anything of the kind.’ 1-Ie says, ‘Back up and let them down and put your foot on the truck handle and we will unload from the truck.’ He and I got hold of the first bundle of paper and gave it a swing and put it on top of the stack. I got hold of one end of the roll of paper, which was something like three feet long, and he got hold of the other end, and we- swung together and swung it up on the pile of paper. At that time I was standing like he told me; standing on my left foot with my right foot straddle of the truck handle. The instep of my foot was balanced on the truck handle. As I reached to get the end of the next bundle, he had hold and was gone with the paper before I could get sufficient hold to come up with it. When I reached to get the end of the second bundle, I didn’t get sufficient hold to hold it until he had got a good hold and swung before I was ready. I had as far again to swing my end as he did his in order to put it on there like the other paper was stacked, and I never gpt a hold on it that I could hold. When he swung I didn’t have sufficient hold to hold the paper, and the result was it jerked me off of my balance, pulled my foot off of the truck handle, and the truck dumped and the handle of the truck hit me in the breast.”

The second assignment complains of the court in not sustaining exception No. 4, which is as follows: “Defendant specially excepts to plaintiff’s petition because the same does not specify whether plaintiff is seeking to recover under the laws of the state of Texas, the laws of the state of Oklahoma, or an act of the Congress of the United States.” There was no error in overruling said demurrer.

The petition set up a good cause '0! action, under the laws of this state. If the rights of plaintiff were in any way affected by the laws of Oklahoma or by the federal Employers’ Liability Act, it was appellant’s place to plead and prove such fact and the law if it wanted the benefit thereof. Railway Company v. Neaves, 127 S. W. 1091; Railway Company v. Seale, 148 S. W. 1099.

The third assignment complains of the court’s giving the following charge: “It was the duty of defendant to exercise ordinary care to furnish plaintiff with reasonably safe means and manner in which to perform his work so that such work could be performed with reasonable safety to himself.” The proposition made thereunder is: “A railroad is under no obligation to provide rules and the manner of doing the work where the work in which the employé is engaged is not complex and attended with dangers from the operations of others, and no such obligation exists in a case of a trucker removing rolls of paper from a truck to piles in its warehouse.” We do not think the charge subject to the criticism urged against it. It does not relate to the making of rules by the company for the handling of freight but has reference to the methods then pursued by Reams in unloading the trucks at the time appellee was injured, as shown by appellee’s plea. The charge was a statement of an abstract principle of law which was followed by a charge correctly applying the law to the facts upon which a recovery was sought; and, if the fifth paragraph of the charge was error, it could not have misled the jury in their verdict. Railway Company v. Wright, 62 Tex. 515.

The fourth and ninth assignments complain of the sixth paragraph of the court’s charge, which are:

(4) “Now bearing in mind the foregoing instructions, if you believe from the evidence that on the 11th day of August, 1910, the occasion in question, one S. Reams was in the employ of defendant as check clerk for freight in defendant’s freight warehouse in the town of Hugo, Okl., and that as such check clerk he had the authority to direct plaintiff in the placing of freight and in the manner in which his truck should be unloaded; and if you further believe from the evidence that on said occasion plaintiff trucked into said warehouse a load of four bundles of paper to be unloaded and placed in position in said warehouse; and if you further believe from the evidence that said Reams directed plaintiff to let the handles of the truck rest on the floor of said warehouse and to hold said handles down by plaintiff placing his foot on same that said truck be unloaded in said position; and if you further believe from the evidence that it was the duty of plaintiff to do said work in the manner so directed by said Reams, if you find said Reams did so direct same; and if you further believe from the evidence that in unloading one of the bundles from said truck said handles, without fault of plaintiff, were caused suddenly to fly up and strike plaintiff in the breast and thereby injure him; and if you further believe from the evidence that said Reams was guilty of negligence in directing said trucks to be unloaded in said manner, if you find from the evidence he did direct the same, and that such negligence was the proximate cause of plaintiff’s said injury, if any — -you will find for plaintiff and assess his damages as hereinafter directed.”

(9) “Or if you believe from the evidence that on said occasion the handles of said truck were caused to rest on the floor and plaintiff placed his foot on same, either with or without the direction of said Reams, and plaintiff and the said Reams began the work of unloading same in such position; and if you further believe from the evidence that in unloading one of the bundles of paper from said truck said Reams swung or jerked the end of a bundle of paper held by him before, in the exercise of. ordinary care, it was reasonably probable to the said Reams that said Cox was in a position and ready to make said swing of said bundle in its place; and if you further believe from the evidence that when the said Reams jerked or moved his said end of paper under such conditions, if you find he did jerk and move same under such conditions, plaintiff’s foot was caused thereby to release the handles of said truck and the same suddenly flew up and struck him in the breast and thereby injured him; and if you further believe from the evidence that such conduct of said Reams in so moving his said end of paper, if you find he did move same, was negligence, and that' such negligence, if any, was the direct and proximate cause of plaintiff’s said injuries, if any — then in either of the above-enumerated events you will find for plaintiff unless you should find for defendant under other instructions given you.”

It is urged that appellee was an experienced man of mature years; that the dangers incident to doing the work were open and obvious, and he assumed the risk of doing the work the way he did; and that Reams and appellee were fellow servants and appellant is not liable for the negligence of one to the other.

The paragraph of the charge here complained of was evidently based upon the theory that Reams, by reason of his authority to control appellee as to his work, was a vice principal of appellant, and if appellee in unloading the paper acted as directed by Reams he could recover. Reams’ duty was to check freight and direct, its placement as it was carried into the warehouse, but he had no power to employ or discharge workmen, and, if he was in any way negligent' in conduct or instructions to appellee which induced ap-pellee to act as he did in unloading the truck, appellant is not responsible therefor, as Reams was not a vice principal of appellant but a fellow servant of appellee. Lantry-Sharpe Contracting Co. v. McCracken, 150 S. W. 1156; Railway Company v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181.

Appellee places his right to recover upon the claim that Reams was negligent in his method of unloading the truck, which he followed. If Reams was negligent, he being a fellow servant, appellee was not bound to follow the instructions of Reams, and he assumed the consequences; at least the appellant is not liable under the circumstances. Traction Company v. De Rodriguez, 77 S. W. 420; Railway Company v. Miller, 36 Tex. Civ. App. 240, 81 S. W. 535; Haywood v. Railway Company, 38 Tex. Civ. App. 101, 85 S. W. 433.

Appellee was an experienced trucker. The truck was an ordinary one in use. There was nothing complicated about it, and he protested with Reams about unloading in that way, knowing that it would dump as it did. The manner of doing the work caused his foot to slip, unloosing the handles, which from the law of gravitation flew up and injured appellee. 1-Iis injury resulted from an unfortunate accident for which he must suffer the consequences, as appellant, under all the circumstances shown by the evidence, is not liable.

As the case seems to be fully developed, the judgment is reversed and here rendered for appellant.

On Rehearing.

At the request of appellee we find the additional conclusions of fact, to wit:

“(1) That, in unloading the second bundle of paper on the occasion in question, plaintiff’s foot was caused to release the trucks by reason of Reams’ swinging his end of said bundle before plaintiff was ready to swing and before it reasonably appeared to Reams that plaintiff was ready to make the swing, and that in so swinging his end of said bundle Reams was guilty of negligence which caused or concurred in causing plaintiff’s injury.

“(2) That the witness Reams, in the warehouse where the freight was being handled, had the power to select the method and to direct plaintiff in the manner in which the truck should be unloaded. 4

“(3) That Reams was negligent in directing the bundles of paper to be unloaded in the manner in which he directed said work to be done.”


author: SPEER, J.

text:
    HENDERSON v. WILKINSON et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. Appeal and Error (§ 724) — Assignment of Errors — Particularity.
    In an action against the maker and in-dorser of a note and to foreclose a vendor's lien, an assignment that the court erred in not holding that the plaintiff was a bona fide holder of the note sued on, and in not rendering a judgment against both defendants and for the foreclosure of the lien, is too general for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    2. Bills and Notes (§ 519) — Action—Sufficiency of Evidence — Liability of In-dorser.
    Where the petition, which alleged that defendant indorsed the notes sued on, was supported indisputably by the evidence and _ there was nothing in the pleadings or the evidence that would justify the court in refusing to render judgment on the prima facie case thus made, it was error for the court not to give judgment against the indorser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 1802; Dec. Dig. § 519.]
    3. Homestead (§ 128) — Conveyances — Attempted Evasion of statute.
    Where the owners of a homestead executed a deed thereto and delivered it to another in exchange for a vendor’s lien note, which was indorsed to a third person, the whole transaction being for the purpose of evading the homestead laws, the lien was invalid, and no foreclosure thereof could be had at the suit of the holder of the note except upon the principle of estoppel.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 224-232; Dec. Dig. § 128.]
    4. Homestead (§ 122) — Conveyances — Es-toppel.
    Where the deed was never placed on record and the grantor and his wife remained in possession all the time, there could be no estoppel which would authorize a foreclosure of the vendor’s lien.
    [Ed. Note. — For other cases, see Homestead. Cent. Dig. §§ 220-222; Dee. Dig. § 122.]
    Appeal from District Court, Nolan County; Jos. L. Shepherd, Judge.
    Action by W. W. Henderson against W. E. Wilkinson and others to recover upon two promissory notes and foreclose a vendor’s lien. Judgment for the plaintiff against the defendant W. E. Wilkinson upon the notes, but in favor of all the other defendants, and denying foreclosure of the lien, and the plaintiff appeals.
    Affirmed in part, reversed and rendered in part.
    Kirby & Davidson, of Abilene, for appellant. H. C. Hughes and J. F. Eidson, both of Sweetwater, for appellees.

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

   SPEER, J.

W. W. Henderson, alleging that he was the owner by assignment of two certain promissory notes, sued W. E. Wilkinson and R. M. Wilkinson as maker and in-dorser, respectively, to recover the amount of said notes and to foreclose the vendor’s lien against lots 7, 8, and 9 in block 107 of the Orient addition to the town of Sweetwater. The plaintiff sought, however, in a first count to recover outright the lands mentioned. The defendant R. M. Wilkinson,' joined by his wife, who made herself a party defendant, answered generally, and specially as to the lien sought to be foreclosed, and that the property was their homestead and the pretended lien was invalid as an attempt to create a mortgage upon the homestead inasmuch as the pretended sale by them to W. E. Wilkinson was fictitious and there was no intention that the title to the land should pass, but that the transaction was for the sole purpose of creating an apparent lien against the homestead. There was a trial before the court, resulting in a judgment against the maker, W. E. Wilkinson, but in favor of all the other defendants. The plaintiff appeals.-

The first, second, and third assignments of error are not considered because too general. The first, which illustrates the others, is as follows: “The court erred in not holding that the plaintiff, W. W. Henderson, was a bona fide owner of the notes sued on, and in not rendering judgment for the plaintiff against both the maker and the indorser of said notes, and in not foreclosing the vendor’s lien securing the payment of said notes.” It is perfectly apparent that this assignment is no more in legal effect than a general complaint that the court erred in the judgment rendered. It embraces every question involved in the entire case, and points out no specific error whatever. Garrison v. Ochiltree County, 50 Tex. Civ. App. 397, 111 S. W. 445.

The fourth assignment is more specific, however, and complains particularly that the court erred in not rendering judgment in favor of the plaintiff against the defendant R. M. Wilkinson as indorser of the notes sued on. This complaint is well founded. The petition alleges that R. M. Wilkinson indorsed the notes, and the evidence supports indisputably such allegation. There is nothing in the pleadings or evidence that would justify the court in refusing to render judgment for the plaintiff upon this issue, thus prima facie established in his favor. The judgment of the district court is accordingly reversed as to the appellee R. M. Wilkinson, and judgment here rendered in favor of appellant against R. M. Wilkinson as indorser for the amount of the notes together with all costs.

The only other question in the ease sought to be raised in the assignments which we have refused to consider, and perhaps properly raised in the sixth and seventh assignments, is that appellant should have had a foreclosure of a vendor’s lien against the property in controversy. The evidence shows, however, without contradiction that the transaction through which the notes in controversy came into existence was no more than a scheme to enable appellee R. M. Wilkinson to obtain credit on the strength of these notes appearing to be a valid lien against property, which was at that time the homestead of himself and wife. The deed to W. E. Wilkinson was never delivered to him, and never placed of record. R. M. Wilkinson and wife were at the time, and ever since have been, in possession of the property. Under these circumstances clearly the lien was invalid as an attempted evasion of the homestead law, and no foreclosure thereof could in any event be had except upon the principle of estoppel, and the appellees being in possession of the property, and the deed not being of record, there is nothing in the case to support appellant’s foreclosure upon such a theory. Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12; Collum v. Sanger, 98 Tex. 162, 82 S. W. 459, 83 S. W. 184; Chamberlain v. Trammell, 131 S. W. 227.

Affirmed in part; reversed and rendered in part.


author: CONNER, C. J.

text:
    HERRON-ROBBINS et al. v. ALLEN.
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 14, 1913.
    Rehearing Denied Oct. 18, 1913.)
    1. .Contracts (§ 305) — Performance—Delay —Waiver—Instructions.
    Where the amount payable under a contract to subscribe to the sinking of a test oil well was payable at the beginning of operations, and defendant did not make any objection to the delay in beginning the well until it had been sunk a considerable ’distance, he waived any delay in beginning to drill, so that it was error to instruct, in an action on the contract, that the jury should find for defendant, if plaintiffs did not begin drilling within a reasonable time or use reasonable diligence to complete the well.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1398, 1399, 1400, 1463, 1464, 1467-1475; Dec. Dig. § 305.]
    2. Evidence (§ 441) — Parol Evidence — Modifying Contract.
    Under a written contract merely binding defendant to contribute to the drilling of a test oil well, and providing that the contribution should not be paid until operations began, the well could be drilled in the customary way by using such tools as would be most advantageous to the drillers, so that it could not be shown in an action on the contract that the agreement was to drill with “cable tools.”
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.]
    3. Evidence (§ 441) — Parol Evidence — Modifying Contract.
    In an action upon a contract by defendant to subscribe a certain sum for the drilling of a test oil well, it could not be shown that the other party to the contract agreed to contribute a certain sum of money, where the contract did not so provide, especially where such amount was contributed in the form of an interest in realty.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1S45, 2030-2047; Dec. Dig. § 441.]
    4. Contracts (§ 301) — Sufficiency of Performance.
    An action against defendant on his contract to contribute a certain sum for the drilling of a test oil well, payable when the drilling was begun, could not be defended by him on the ground of unreasonable delay in completing the well, especially where he himself refused to pay his subscription according to agreement; his remedy being an action for damages.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1388-1397; Dec. Dig. § 301.]
    Appeal from Wichita County Court; C. B. Felder, Tudge.
    Action by I-Ierron-Robbins and others against R. S. Allen. From a judgment for defendant, plaintiffs appeal.
    Reversed and rendered.
    Smoot & Smoot, of Wichita Falls, for appellants. Montgomery & Britain, of Wichita Falls, for appellee.

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

   CONNER, C. J.

This appeal is from a judgment denying appellants a recovery upon a subscription contract made by the ap-pellee to give $500 for sinking a test well for oil; the obligation sued upon being as follows: “Electra, Texas, 4-21-1911. This is to certify that I, R. S. Allen, agrees and binds himself to contribute $500.00 to I-Ier-ron-Robbins and associates for the purpose of drilling a test well to a depth of 2,000 feet unless oil or gas is found at a less depth in paying quantities; said well to be drilled on the Richard Mead, known as the W. B. Honaker land, said above-mentioned amount not to be paid until operations begin on said well. [Signed] R. S. Allen.”

We think the court erred as complained of in the fourth assignment in giving the fol-' lowing charge: “If you find and believe from the evidence that the plaintiffs did not begin drilling of such well within a reasonable time or did not use reasonable diligence to complete such well* then you will find for the defendant.”

While the evidence is to the effect that appellants did not begin the boring of the well for about three months after the execution of the contract and did not have it completed for some 10 or 12 months, yet the charge seems inapplicable, in that the obligation by necessary implication was payable at the beginning of operations, and the evidence seems undisputed that appellee made no objections whatever to the delay in beginning the well (for which delay appellants gave reasonable explanation) until after appellants had sunk the well some 1,200 feet. It is evident, therefore, that appellee waived any objection that he might otherwise have had to the delay in beginning, and the delay in completion, if not sufficiently accounted for in the evidence, is not shown to have in any way operated to appellee’s prejudice, as will hereinafter be shown. The charge, therefore, authorized a verdict for appellee upon immaterial issues which should not have been done in the state of the evidence as we find it.

In various forms the following paragraph of the court’s charge is also objected to, viz.: “If you find and believe from the evidence that at the time of the execution of the instrument sued upon the plaintiffs or any of them represented to the defendant and promised the defendant that such test well was to be drilled with cable tools, and if you believe that defendant relied upon such representation and but for such representation would not have signed such instrument, and you further find that such representation was untrue and fraudulent, then you will find for the defendant.”

Appellee pleaded as a defense that he had been induced to execute the contract sued upon, among other things, by the promise of appellants _ to drill the well with “cable tools.” It is undisputed that the well in fact was dug to a depth of 2,006 feet; the evidence, however, shows that the well was drilled with cable tools to the depth of about 1,200 feet only, but we do not think this fact constitutes a defense. The contract quoted upon its acceptance by appellants became the contract of the parties. It was in writing and in legal effect it gave appellants the privilege of drilling the well in at least a customary way and with such tools or apparatus as in their judgment would accomplish the desired result and at the same time be to them the most advantageous, and they cannot be' bound by a limitation not inserted in the written contract; neither fraud, accident, nor mistake having been pleaded. In the case of Burch v. Railway Co. 80 Ga. 296, 4 S. E. 850, Burch had signed a written agreement to give the railway company right of way for 30 feet over his lands “if the survey of the railroad should run through his lands” and sought, to defeat the obligation when sued thereon by offering himself and others to prove what he stated to the agent of the railway company before he signed the paper; that is, that they might run through his land if they desired to do so, but that they must come along a certain ditch. This testimony was objected to and sustained by the lower court, and the ruling was approved by the Supreme Court of Georgia, which said: “We think that testimony was obnoxious to the rule that parol evidence is inadmissible generally to contradict or vary the terms of a written instrument.” In the case of Chattanooga R. & C. R. Co. v. Warthen, 98 Ga. 599, 25 S. E. 988, also by the Supreme Court of Georgia, it was sought to defeat a stock subscription contract on the ground, among other things, that the subscription (which was in writing) had been induced by the promise or representations of the agent who procured the subscription that the railway should be located along the line of a certain old roadbed extending through the town of Lafayette. The written subscription provided only that it should be void “unless the main line of the said railroad when built shall pass through the corporate limits of the town of Lafayette.” The court said: “Under the contract of subscription, we think the railroad company had a right to run its track anywhere within the corporate limits. The contract did not specify any particular line or route through the town, nor did it provide how far it should run from the corporate limits. It simply provided that it should run through the corporate limits. If that was done, it was a sufficient compliance with the contract, so far as the location of its route was concerned.” In the case of Masonic Temple Association v. Channell, 43 Minn. 353, 45 N. W. 716, by the Supreme Court of Minnesota, a defendant sought to defeat a subscription for stock upon the ground, among other things, that at the time of subscribing “he orally made it a condition that the corporation should incur no debt.” The court said: “As the contract of subscription was in writing, of course the evidence was incompetent.” In Cooper v. McCrimmin, 33 Tex. 383, 7 Am. Rep. 268, by our own Supreme Court, it was held to be incompetent for a subscriber to vary or contradict a subscription paper or parol proof that the building of bridge was to be let out to the lowest bidder; there being no such provision in the paper itself. In other words, the authorities seem to be uniform to the effect that, where the subscription contract is in writing, parol representations or agreements made by the solicitor which are inconsistent with the written terms of the subscription are inadmissible unless fraud or mistake in the execution of the contract be pleaded and shown, and that was not done in this case. See Clegg v. Galveston Hotel Co., 1 White & W. Civ. Cas. Ct. App. § 621; S. A. & A. P. Ry. Co. v. Wilson, 4 Tex. Civ. App. 178, 23 S. W. 282; Topeka Mfg. Co. v. Piale, by the Supreme Court of Kansas, 39 Kan. 23, 17 Pac. 691; Langford & Orton v. Ottumwa Water Power Co., 59 Iowa, 283, 13 N. W. 303; Jones et al. v. Turnpike Co., 7 Ind. 547; Bill et al. v. Wabash Valley Ry. Co., 21 Ill. 91. The charge was. therefore erroneous as urged in the fifth and sixth assignments, and the evidence offered in support of the issues was likewise objectionable as complained of in the twelfth assignment.

Error is also assigned to the second paragraph of the court’s charge which is as follows: “If you find and believe from the evidence that, prior to or at the time of the signing of the instrument sued upon, the plaintiffs, or any of them, represented to the defendant that the Texas Company has agreed to give to plaintiffs $2,000 towards the drilling of said well, and you further find that such representation was untrue, and that said Texas Company had not in fact promised to pay $2,000, and you further find and believe that the defendant believed such representation to be true and relied on the same, and but for such representation, if any, would not have signed such instrument sued on, then you will find for the defendant.”

Appellee pleaded not only that the representation submitted in the charge had been made, but that his subscription had been made on the “condition that the Texas Company should give $2,000,” and “that it was expressly agreed and understood that said instrument (the one declared on) was signed upon that express condition and stipulation and that the plaintiffs and each of them at the time of the signing of said instrument and thereafter promised and agreed with defendant that if the said Texas Company and Clay Co. Company did not contribute the amounts herein before set out that this obligation would not be binding upon the defendant and further agreed to return to the defendant the written instrument sued upon.” The uncontradicted evidence shows that the plaintiffs in the suit received, in lieu of a $2,000 cash contribution (which had been first promised), a lease on 500 acres of land of the value of $5,000, and what we have said in disposing of the fifth, sixth, and twelfth assignments also applies to- this defense; but we wish to here add that, as presented in the charge under consideration, the issue seems to be immaterial under the undisputed evidence. The principal purpose of appellee’s subscription — the sinking of a test well — -was accomplished, and the confidence of the officers of the Texas Company in the locality where the well was to he dug was as clearly manifested by the contribution actually made as if the contribution had in fact been as appellee alleged.

Appellee insists, as a reply to all assignments, that the proof without dispute shows that the well was not completed within a reasonable time, and that therefore the judgment is right regardless of the errors, if any, committed in the trial; but we think this contention also must be overruled. It is true that there was testimony in behalf of appellee, to the effect that such a well might reasonably be dug within three or four months; but appellants account for the delay shown in part because of a broken “working beam” and inferably also because of a lack of funds, which they attempted to supply by the sale of oil lots situated near the test well in question, and neither by proof nor allegation is it shown that appellee was in any wise prejudiced by the delay in the completion of the well. It is to be observed that by the terms of his subscription contract the money he subscribed was due and payable in the beginning and not upon the completion of the well.

The evident purpose of the subscription was, in part at least, to secure the funds with which to make the test, and appellants therefore were immediately upon beginning the well entitled to receive appellee’s $500 subscription. If thereafter there was unreasonable delay in the completion of the well and appellee in fact thereby suffered damage, his remedy would be a suit for the recovery of the damage. Under the circumstances, it seems unreasonable to relieve appellee on the ground of a delay evidently caused in part'by his refusal to pay the $500 in accordance with the terms of his written agreement.

We conclude that appellee presented no legal defense to the obligation sued upon, and that under the undisputed evidence appellants were entitled to recover as prayed for. It is, accordingly, ordered that the judgment be reversed and here rendered in appellants’ favor in accordance with the prayer of their petition.