author: HUFF, C. J.

text:
    LEAKE et al. v. CITY OF DALLAS.
    (No. 1183.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.
    Rehearing Denied Oct. 3, 1917.)
    1. Municipal Coepoeations <&wkey;976 — Taxes —Payment—Pbesumption.
    Where a special act chartering a city declared that unless otherwise provided by the act and by ordinance passed thereunder, all property in the citv liable to taxation should be assessed in accordance with the provisions of the general laws of the state, and there was no charter provision or ordinance for making out of delinquent tax rolls, Vernon's Sayles’ Ann. Civ. St. 1914, arts. 7621, 7685, 7692 and 7699, respectively providing that a list of delinquents shall be made out under the caption “List of Delinquent or Insolvent Taxpayers,” that when certified to by the court judge, assessment rolls and books in the tax collector’s office shall be prima facie evidence that all the requirements of the law as to the listing, assessing, levying of taxes, and reporting the same delinquent, have been complied with, and that the amount is the true and correct charge, and that any incorporated city in which real estate is returned delinquent may prepare a tax list of delinquents as authorized, are applicable, and mere proof of assessment of taxes is not alone' sufficient to show nonpayment after the lapse of 20 years, but nonpayment must be shown by delinquent tax record or by some other evidence outside the assessment.
    2. Municipal Coepoeations <&wkey;976 — Taxes— Payment — Pbesumptions.
    The presumption of .payment raised by the lapse of 20 years applies in a suit to recover alleged delinquent taxes, where there was no proof of delinquency other than the assessment itself on which the penalty and interest had been computed at a time obviously long after the levy.
    3. Payment <&wkey;66 (5) — Burden op Peoop.
    While ordinarily the burden of proof is on one alleging payment, yet after the lapse of 20 years the burden shifts to the creditor.
    4. Municipal Coepoeations <&wkey;1035 — Actions — PROCEDURE.
    Where a municipality sues, the rules of evidence and presumptions are the same for it as for an individual suitor.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    •Action by the City of Dallas against Sam A. Leake and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Sam A. Leake, B. F. Word, and Charlton & Charlton, all of Dallas, for appellants. C. F. O’Donnell, Lee Richardson, G. D. Hunt, and W. S. Davidson, all of Dallas, for ap-pellee.
   HUFF, C. J.

This action was originally instituted by the city of Dallas against Sam A. Leake, B. F. Word, and William Charl-ton, on the 20th day of August, 1915, for taxes assessed against a certain lot described in the petition, for the year 1895, and was assessed to Margaret Hamilton and C. A. Sullivan, as the owners of the lot at that time. At the institution of the suit the lot was own-’ ed in part by the above-named defendants, appellants here. The parties so named answered, alleging that one-sixth of the lot was then owned by Fhnnie Henderson, Geo. Sory, O. R. Charlton, and S. A. Charlton. Tire petition was amended, making such named parties defendants. The taxes assessed for that year against the property were $126. Suit was also for $12.60 penalty, being 10 per cent, of the amount of the taxes so assessed, and $149.31 interest thereon at the rate of 6 per cent, from the 1st day of November, 1895. There was a prayer to recover the taxes, penalty, and interest, with a foreclosure of the tax lien on the lot. The defendants answered, pleading payments of taxes, presumption of payment arising from lapse of time, and pleading invalid assessment. The case was tried without a jury, the court finding the taxes were not paid, and that the presumption of payment as a matter of law would not apply to taxes. These findings are assailed by assignments as not being supported by- the facts or the law. For the purpose of considering these assignments we may assume that the assessment was properly made as alleged, against the parties named, on the lot for the year 1895. The city offered what purports to be a certified copy of the assessment rendered to Melton, city assessor, by J. E. Julian, agent, April 17, 1895. We will not set out at this place the difference in the original assessment and the certified copy offered by the city, but there is a material difference in the two as to description of the property-one is not a true copy of the other. The city also introduced an instrument which the parties apparently treat as part of the tax rolls. It is headed:

“PleasQ return this statement with remittance, Dallas, Texas, August 10, 1915. Statement oí aá valorem taxes due city oí Dallas on the following described property: Lot 25x100 Block 61, Street Elm, 75 Er. Poydras.
“Total amount due if paid on or before August 10, 1915, $287.91.
“Geo. A. Moore, Assessor & Collectox’, “By E. L. Ladd, Deputy/’

The certificate to this instrument is:

“This is to certify that the attached sheets are true and correct copies of the assessment sheets filed in my office and contain a true and correct statement of the assessments of the property therein mentioned for tases due the city of Dallas, Texas, for the year therein mentioned, as shown by the tax rolls of the city of Dallas, Texas, for said year.”

This is attested by the assessor and collector. The city also offered a deed to Leake, Word & Charlton from Louis A. Cooley, executor and devisee under the will of C'ynthia Ann Sullivan, joined by other devi-sees. This deed is dated May 23, 1895, filed for record July 13, 1895, and describes the lot in question. There is also a deed from Margaret Hamilton to Word & Charlton, dated April 29, 1895, filed for record May 30, 1895, reciting a consideration of $6,000, and also a deed by A. C. Ardrey, administrator of the estate of Cynthia Ann Sullivan, deceased, to Leake, Word & Charlton, dated July 13, 1895, filed for record the same day, reciting a consideration of $6,000, and an order approving sale September^, 1895. J. E. Sullivan testified that he was the agent for Mrs. Margaret Hamilton in the sale of the land to Leake, Word & Charlton and in the rendition of the property, but not for tire Sullivan estate in making the assessment of the property ; that it was his recollection at the time of the sale the taxes were paid; that he secured a statement to that effect from the city just prior to the sale; that he got no rents for Mrs. Hamilton on the property, for the reason that the administrator for the Sullivan estate showed him tax receipts and claimed that the money for rents had been so applied. He could not give the year or month, but said it was just before the sale, and he did not know whether it was for the year 1S95, and did not know whether the tax receipt shown him by the administrator showed the payment of the taxes for 1895. Mr. Charlton testified that the Cooley deed had nothing to do with the sale; that he procured Ardrey, the administrator, to get it for them, but that they bought the Sullivan interest through the probate court. The city charter for 1889, as amended in 1891 and 1893, section 144, as set out in the statement of facts, in substance provided that taxes become due the city of Dallas the second Monday in June, and become delinquent the 1st day of October. The order of the probate court, September 3, 1895, approving the sale to Leake, Word & Charlton by the administrator, recites that all claims and indebtedness had been paid. E. L. Ladd testified:

“My name is E. L. Ladd, and I am a deputy tax collector of the city of Dallas. The papers shown me are certified copies of the assessment ■sheet, and tax rolls of the city of Dallas for taxes on the property described in plaintiff’s petition for the year 1895, and are true and correct copies of such assessment sheet and tax rolls. _ These copies show taxes due on the land described in plaintiff’s petition for the year 1895. together- with penalties and interest due on March 1, 1916, which is the sum of $292. I prepared these conies, and they are true and correct. The tax rolls of city of Dallas show these taxes, penalties and interest due and unpaid, and the copies introduced show them unpaid.”

Cross-examination by defendants:

“The sheet you show me is the original assessment'sheet, and the copy I have here, introduced by the city of Dallas, is supposed to be a copy of such original sheet. (The original sheet shown to Mr. Ladd appears on page 15 of the statement of facts.) The copy I made is different from the original sheet, in that the copy I made has added to the description of the property given in the original sheet these additional words, ‘75 fr. Poydras’ and whore on the original it says ‘Name’ on the copy it says ‘Name of Owners’ and on the original it says ‘Value of Ground 7850,’ while on the copy it says ‘Value of ground $7850,’ and at the top of the original sheet, where it purports to state what year the assessment is for, it says in giving the year ‘189 — ,’ while in the copy it says ‘1895.’ These sheets are made for several years and the ‘ — ’ (blank) after 189 was not filled in, but at the bottom of the original sheet the date when Mr. Julian signed appears as ‘April 17, 1895.’ The notation ‘75 fr. Poy-dras’ appears on the tax rolls. The original has no jurat showing that an officer administered the oath to Julian, nor is such sheet signed by the tax assessor.”

The question here presented is: Was the evidence offered sufficient to show that the taxes were not paid, and should the presumption of payment after 20 years prevail as to taxes? Assuming that the assessment under the provisions of the city charter and the tax rolls show a proper levy and assessment, will it follow that this makes out a prima facie case of nonpayment? It will be observed from Ladd’s testimony that the certified copy of the assessment relied upon by the city was not a true copy. The statement offered in evidence as being taken from the city tax rolls on its face shows that it was a notification to the owner of the amount of taxes, penalty, and interest due on August 10, 1915. We cannot conceive how the city tax rolls for 1895 would show $12.60 penalty and $140.31 interest on $126 of taxes for that year.

We have not examined sufficiently to determine whether the act chartering the city of Dallas should be treated as a public law, or whether it is expressly so declared by the act, but we shall presume that it does, as neither party raises any question on that ground, and we will therefore look to its provisions on the subject of taxation in determining the questions here involved. Cotton Press v. Bradley, 52 Tex. 587; Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 35 L. R. A. 666; Houston v. Dooley, 40 Tex. Civ. App. 371, 89 S. W. 777; Tucker v. City of Paris, 99 S. W. 1127. Under article 3, § 18, of the charter of the city it is provided:

“Unless otherwise provided by this act and by ordinance passed thereunder, all property in such city liable to taxation shall be assessed in accordance with the provisions of general laws of the state in so far as applicable.”

We have been unable to find any provisions for making out delinquent rolls, and no ordinance of the city is shown in the record making such provisions. Article 7 of the charter treats the subject of assessment and collection of taxes, and sections 13, 14, and 16 thereof relate to making the sale of property both personal and real, and the presumption which shall prevail as to certain precedent conditions upon the execution of deed to real estate. Section 21 validates' previous assessments and assessment rolls under previous charters. Section 22 relates to description of the property in case of suits. Section 23 provides that where an owner renders property for assessment the sufficiency of the description is not subject to dispute, and section 24:

“The assessment rolls shall be prima facie evidence of the facts stated in said rolls and that all taxes assessed on such rolls have been regularly levied and assessed in accordance with the provisions of this charter, and of the law and in irregularity in the manner of levying or assessing taxes shall invalidate the same unless it appears from affirmative proof that such irregularity operated injuriously to the taxpayer attempting to avoid the payment oil taxes.”

It is evident from section 14 that the collection of taxes is to be made by sale of the property. The other sections, 21 to 24 inclusive, with reference to suits for the taxes, only make the rolls or assessment prima facie valid, and may establish a debt in favor of the city for the taxes and penalty. There is apparently no provision for delinquent rolls or how property delinquent shall be shown. Under the state statute (article 7621, Vernon’s Sayles’ Civil 'Statutes), it is provided a list of delinquents shall be made out, bearing the caption, “List of Delinquent or Insolvent Taxpayers.” It occurs to us that such a record, if made up under the law, would be prima facie evidence of nonpayment, even though it is made primarily for the purpose of giving the collector credit on his assessment rolls. Under articles 7685 and 7692, Revised Civil Statutes, the provision is made for preparing delinquent lists, etc.:

“When certified to by the county judge, and the assessment rolls and books on files in the tax collector’s office, shall be prima facie evidence that all the requirements of the law have been complied with by the officers charged with any duty thereunder, as to the regularity of listing, assessing, levying of all the taxes therein mentioned, and reporting as delinquent or sold to the state any real estate whatsoever, and that the amount * * * , against said estate is the true and correct charge.

Under article 7699, Vernon’s Revised Civil Statutes, it is said any incorporated city in which real estate is returned delinquent may prepare a list of delinquents in the same manner as provided under article 7685. It may be that the articles referred to do not apply to cities acting under special charters, unless it shall be made to appear that they accept thereunder. City of San Antonio v. Berry, 92 Tex. 319, 48 S. W. 496. The charter of Dallas, § 18, art. 3, provides that property shall be assessed in accordance with the general laws of the state when not otherwise provided for by ordinance. For the purpose of declaring delinquency there are no provisions in the charter that we have been able to find. It surely was not the purpose of the city to provide for entering up a charge against a lot without in some way showing that it remained unpaid or delinquent, and this would appear by having no ordinance on that subject, and by expressly making the law part of the charter. The policy of this state as evidenced by the several statutes is to keep a record of delinquents. It would, it appears to us, be an intolerable burden on the property owner after 20 years to prove that he paid his taxes. Every assessment and entry on the tax rolls establishes a debt, and would support a judgment if the owner could not show that he or some former owner paid the taxes. It seems to us the purpose of the charter was to incorporate the general laws in so far as applicable to assessing taxes, unless an ordinance is passed contrary thereto. If this was a suit to collect state and county taxes, it cannot very well be doubted but the state would have been required to prove the delinquency by the delinquent list. It seems to us the city has not made out a ease by introducing an assessment and the original tax rolls. This may be evidence that a debt once existed. Under the statute the delinquent list ought to be produced. If there is none such, but the case rests alone upon the assessment and the rolls, we see no good reason why the 20 years’ presumption of payment may not be applied in this case as in others. The notation on the notice to pay, introduced in evidence of the interest and penalty, proved nothing more than on August 10, 1915, some one calculated the amount. This entry does not purport to have been made up under the statute, as required for delinquents. We quote from Graves v. Stone, 76 Wash. 95, 135 Pac. 812, Ann. Cas. 1915D, 182:

“That the inferences and presumptions here invoked by appellant are applicable to tax obligations as well as those owing to private individuals seems to be well established by the authorities. 2 Wharton, Law of Evidence, § 1360; 37 Cvc. 1167; Hopkinton v. Springfield, 12 N. H. 328; Elliott v. Williamson, 79 Tenn. (11 Lea) 38; Keesling v. Winfield, 149 Ind. 709, 49 N. E. 163 ; In re Ash’s Estate, 202 Pa. 422, 51 Atl. 1030, 90 Am. St. Rep. 658. In the last-cited ease the court said: ‘When the commonwealth comes into its courts, it is subject, like all other suitors, to the established rules of evidence. It must meet the burden of proof; its evidence must be relevant, material, the best attainable, and must be presented in due order under the regular rules of procedure. In all such respects it stands upon the same footing as ordinary litigants. Statutes of limitation d& not apply to it because the maxim, “Nullum tempus occurrit regi,” though probably in its origin a part of royal prerogative, has been adopted in our jurisprudence as a matter of important public policy. But rules of evidence and legal presumptions are not changed for or against the state as a suitor. A statute of limitation is a legislative bar to the right of action, but the presumption of payment from the lapse of time is not a bar at all, but simply a rule of evidence affecting the burden of proof. Miller v. Overseers, 17 Pa. Super. Ct. 159. It is of equitable origin, founded on experience of the ordinary course of business and human affairs, and adopted by the law in the interest of repose and the ending of litigation. There is no good reason why it should not apply to the commonwealth just as other legal rules and presumptions do. And so it has been ruled.’ ”

We do not hold that it is necessary to hare a delinquent list in order to sue to recover the taxes, but that the mere proof of assessment is not alone sufficient to show nonpayment after 20 years. The delinquent record would prove this fact, and if after the time when the law raises the presumption of payment, in the absence of delinquent record, it occurs to us the city ought to show by some ■other evidence outside the assessment nonpayment. Ordinarily the burden is on the party alleging payment, but after the lapse of time fixed by the authorities ahd the court at 20 years, the burden, as we understand, shifts to the creditor. Jones on Evidence, vol. 1, §§ 65, 65a, and 66. The appellant city relies upon eases requiring proof of payment of taxes to support the statute of limitations sufficient to give title and cases holding the ■statute of limitation will not defeat recovery of taxes. State v. Gibson, 27 Tex. Civ. App. 355, 65 S. W. 691. In that case the holding was based upon the statute denying a delinquent right to plea'd the statute (article 7662, R. C. S.), but before that act the courts of this state, as pointed out in the Gibson Case, held that the statute of limitation could be pleaded against counties by the delinquent, citing Railway Co. v. Travis, 62 Tex. 16; Johnson v. Llano County, 15 Tex. Civ. App. 421, 39 S. W. 995. The rules of evidence and presumptions are the same for the city litigant as it is for any other creditor, and we think should be enforced as to it as well as to others. In this case there is a deed from the executors and legatees before the taxes were due in 1895, but it is shown with reasonable certainty the sale of the interest of Mrs. Sullivan was not consummated, or title vested in the vendees until after the taxes were due. The vendors were therefore due the taxes as shown by the deeds and the assessment. The agent who effected the sale and who rendered the property for taxation testified that his recollection was that the taxes had been paid; that the administrator of the Sullivan estate showed him tax receipts, and would not pay Mrs. Hamilton her portion of the rents because he had paid this money on the taxes. The order of the probate court on the confirmation of the sale recites there was no claim against the land and so- adjudicates. These circumstances, together with the fact that all taxes before and after that year have been regularly paid, and that no claim for more than 20 years is shown to have been made occurs to us, in the absence of any evidence to the contrary save that of the assessment, ought to support a finding of payment. We believe the trial court was px error in finding as a fact the taxes were not paid and in holding that the presumption of payment does not apply in tax cases.

We shall not discuss the question of the sufficiency of the assessment as to description or the like. It occurs to us that sections 21-24 and others of article 7 of the charter will support the assessment and description. The case of Slaughter v. City of Dallas, 101 Tex. 315, 107 S. W. 48, Id., 103 S. W. 218, settled this question we believe in favor of the city.

For the reasons above stated, the case will be reversed and remanded.
      <a=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    WHEELOCK v. MAYFIELD et al.
    (No. 1201.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1917.
    Rehearing Denied Oct. 3, 1917.)
    1. Bills and Notes <&wkey;489(3) — Action Against Indobseb — Evidence—Explanation oe Indobsement.
    In action against indorser under plea of no consideration for the indorsement, defendant could explain the nature of his indorsement.
    2. Bills and Notes c&wkey;291 — Liability oe Indobseb — -Indobsement eob Pubpose oe Tbansfee.
    It is the general rule that where indorsement is for the purpose of transfer only, in-dorser is not responsible.
    3. Appeal and Eeeob <&wkey;991 — Sueeioiency oe Evidence — Conclusiveness oe Yebdict.
    The jury having found that an indorsement was made merely for the purpose of transfer, having evidently accepted the indorser’s explanation and the issue being only one of fact, the verdict will not be disturbed on appeal.
    Appeal from Garza County Court; A. R. Anderson, Judge.
    Action by E. L. R. Wheelock against W. D. Mayfield and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Paul Steed, of.Post, and Bean & Klett, of Lubbock, for appellant. P'erey Spencer, of Lubbock, and H. D. Durst, of Post, for ap-pellees.
   HALL, J.

Appellant sued upon a promissory note for $400 to recover against G. W. Burkett as maker, and W. D. Mayfield as in-dorser and guarantor. The note is payable to the order of W. D. Mayfield, and was indorsed by him as follows:

“For value received I, or we, hereby guarantee payment of the within note at maturity and at all times thereafter, and waive demand, protest and notice of nonpayment thereof.”

There is also a transfer of the vendor’s lien retained in the note signed and acknowledged by Mayfield. This transfer of the vendor’s lien also includes the transfer of the note. Mayfield set up failure of consideration, and only this issue was submitted to the jury. The jury found that there was no consideration, and the only assignment of appellant’s brief insists that this finding is not supported by the evidence, and is contrary to law. Appellant testified that he was a real estate broker; tbat Mayfield listed tbe land with him and promised to pay bim 5 per cent, commissions, and tbat Mayfield sold tbe land for $1,400; tbat several days after the land was sold be called on Mayfield for his commissions and was told tbat Mayfield did not have tbe cash, and upon Mayfield’s suggestion, be accepted the note sued upon, which was indorsed by Mayfield at tbat time in full of appellant’s claim for commissions. Mayfield testified with reference to tbe transaction as follows:

“At the time I turned the note over to Mr. Wheelock I signed my name on the back of it to make it good at the solicitation of Mr. Whee-lock and simply as a matter of accommodation to enable Mr. Wheelock to get him a home. Mr. Wheelock was then on a trade for a home, and said that if I would indorse the note that it would make it good so that he could use it in trading it to the other fellow. I have forgotten the name of the fellow Mr. Wheelock was trading with. He made the trade a few days after I indorsed the note. The trade went through and Wheelock lived in the house some time, but afterwards he had to take up the note sued on. The same was returned to him when he failed to pay for the house. At the time I indorsed the note to Mr. Wheelock I did not owe him anything. I did not employ him as a real estate agent to find a purchaser for me, and did not promise him a 5 per cent, commission for selling the land. Prior to the time I indorsed the note to Mr. Wheelock he and I had a conversation about SO acres of land that I had in Pecos county, and we agreed that we would both try to sell the land, and that in case either one found a purchaser I was to divide with Mr. Wheelock my excess above my equity in the land. My equity in the land was $600, and I sold it for $1,400 above what was already against the land. I got a half interest in a drug store at Altus, Okl., and two notes for $400 each. I considered that the two notes of $400 each were the profit, and I gave one of the $400 notes, being the one sued on, to Mr. Wheelock, as his part in the transaction. Both of us tried to sell the land, but I was the one that made the sale to Burkett, and I closed the trade in Altus. In a week or two after the trade was closed I turned over to Mr. Wheelock the note sued on and signed my name on the back thereof, as stated above.”

By deposition appellant testified in part tbat be took tbe $400 note for bis services in assisting Mayfield toward tbe sale of the land in Pecos to tbe purchaser, Burkett. As stated, tbe note was payable to tbe order of Mayfield, and to perfect tbe transfer it was necessary for Mayfield to indorse it. Under bis pleadings be bad tbe right to explain tbe nature of bis indorsement. Tbe general rule with reference to such indorsements is tbat the indorser is not responsible. As stated by Bonner, Justice, in Hanrick v. Alexander, 51 Tex. 502:

“If the indorsement by Hanrick of the note sued on was simply to transfer the right of action thereon to Blocker without recourse on Han-rick, this, as between him and Mrs. Alexander and the children of Blocker, would be a sufficient defense to recovery by them of a personal judgment against Hanrick. Wade v. Wade, 36 Tex. 529.”

Tbe jury evidently accepted Mayfield's statement of tbe contract with Wheelock that tbe profits realized by Mayfield over and above bis equity should be divided between Wheelock and Mayfield. These profits consisted of the two notes. Under Mayfield’s statement of tbe contract, accepted by the jury, Wheelock was entitled to one of tbe notes, whatever its value might be. He bad no right to insist .that Mayfield should add bis personal indorsement and guaranty to it. Tbe briefs presenting simply an issue of fact and this issue having been determined by tbe jury in favor of appellee, we will not disturb it.

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


text:
    NATIONAL FIRE INS. CO. v. HOUSE et al.
    (No. 1188.)
    (Court of Civil Appeals of Texas. Amarillo.
    July 6, 1917.
    Rehearing Denied Oct. 3, 1917.)
    1. Insurance t&wkey;493 — Eire—Extent of Loss —“Total Loss.”
    A building was a “total loss” after a fire, where a reasonably prudent owner, uninsured, could not have used any substantial part of the building left standing.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Total Loss.]
    2. Insurance <&wkey;569 — Adjustment of Loss-Validity of Appraisal — Total Loss — Statute.
    A stipulation for appraisement or arbitration in a fire insurance policy is a nullity where there is a total loss, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874, providing that “a fire insurance policy, in case of a total loss by fire of property insured shall be held and considered to be a liquidated demand against the company for the full amount of such policy; provided, that the provisions of this article shall not apply to personal property.”
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by Ellis P. House and others against tbe National Eire Insurance Company. Judgment for plaintiff named, and defendant appeals. Affirmed.
    Crane & Crane, of Dallas, for appellant. Gano & Gano, Carden, Starling, Carden, Hemphill & Wallace, B. B. Hemphill and Bern Wilson, all of 'Dallas, for appellees.
   HALL, J.

The following portion of tbe statement of the nature and result of tbe suit from appellant’s brief, acquiesced in by appellee, is adopted:

“Ellis P. House instituted this suit in the district court of Dallas county, Tex., against appellant, National Eire Insurance Company, upon a contract of fire insurance. It was alleged that on October 13, 1913, appellant issued its policy to appellee House, under the terms of which appellant insured the latter for a period of three years from said date, against all loss or damage by fire, in an amount not to exceed $2,000, to his dwelling house situated at No. 101 West Twelfth street, in the city and county of Dallas, state of Texas: that on August 8, 1914, the property was totally destroyed by fire, to his damage in the sum of $6,500; that all of the conditions required of him by the policy had been complied with; that" the Scottish-American Mortgage Company, Limited, held certain lien indebtedness of about $1,-750 against the property, which was further secured by a standard mortgage clause attached to the policy, wherein it _ was stipulated that any loss or damage ascertained to be due should be payable to it as its interest might appear. Appellee sued for himself and for the benefit of the Mortgage Company, and prayed for_ judgment for the full amount of the policy, with interest. The gist of appellant’s answer was that the building was not. totally destroyed; that after the fire the parties could not agree as to the amount of the loss and damage to the dwelling, and that appellant demanded an appraisal of the loss as was provided for in the policy; that on August 27, 1&14, appellee House and appellant executed a written agreement to appraise the lots, the former designating C. T. Douglas, of Dallas, and the latter H. W. Childs, of Dallas, as appraisers; that these two gentlemen took an oath, selected an. umpire, and thereafter rendered an award, finding the sound value of the building at the time of the fire at §7,000, and the loss and damage thereto to be $2,835; that appellant was liable for one-half of said award (there being other insurance upon the property for $2,000 concurrent with the policy sued on), and it admitted it to be one-half of $1,417.50, which it alleged it had tendered to the said House prior to the institution of the suit. It prayed that plaintiff have judgment for the sum of $1,417.50, and that all the coats be adjudged against appellee House. In a supplemental petition, after interposing certain special exceptions to the answer and numerous special denials, appellee House attacked the award, upon numerous grounds. The Scottish-American Mortgage Company, Limited, intervened and adopted the pleadings of appellee House. It alleged that its lien indebtedness amounted to the sum of $2,-000, with interest thereon at 8 per cent, per annum from December 1, 1915. The causo was submitted to the jury upon special issues and upon the verdict rendered the court entered judgment against appellant in favor of appel-lee House in the sum of $2,148 with interest at 6 per cent, from March 27, 1916, of which sum it was adjudged House recovered the sum of $2,029.76, with interest, for the use and benefit of the Scottish-American Mortgage Company.”

The following are some of the issues submitted to the jury, with the answers returned:

“First. Was the remnant of the structure standing after the fire reasonably adapted to use as a basis upon which to restore the building to the condition in which it was before the fire? Answer: No.
“Second. Would a reasonably prudent owner, uninsured, desiring such a structure as the one in question was, immediately before the •fire, in proceeding within a reasonable time after the fire to restore the building to its said condition immediately before the fire, have torn down those portions of the building left standing? Answer: Tes.
“Q. Would a reasonably prudent owner, uninsured, desiring such a structure as the building of plaintiff was immediately before the fire, in proceeding to restore it to its condition immediately before the fire, utilize any substantial part of the portion of- the building standing as the basis upon which to rebuild? Answer: No.”

The effect of these findings is that the building was a total loss after the fire. Am. Cent. Ins. Co. v. Murphy, 61 S. W. 956; Murphy v. Am. Cent. Co., 25 Tex. Civ. App. 241, 54 S. W. 407; H. & B. Fire Ins. Co. v. Garlington, 66 Tex. 103, 18 S. W. 337, 59 Am. Rep. 613; Royal Ins. Co. v. McIntyre, 34 S. W. 669.

The eighth issue submitted to the jury and answer are as follows:

“At the time the agreement for appraisal was made, did both plaintiff and defendant believe, and in making such agreement for appraisement act upon the belief, that the house could be repaired, and that the portion of the structure standing was reasonably adapted for use as a basis upon which to restore the building to the condition in which it was immediately before the fire? Answer: Yes.”

The findings of the jury upon the remaining issues submitted have the effect of declaring the appraisement a nullity, but it is not necessary to base the disposition of the appeal upon the invalidity of the arbitration proceedings. Appellant has briefed the case with reference to the arbitration and its effect, practically all of its assignments relating directly or indirectly to that issue. We have concluded that the award is not binding upon the appellee. Article 4874, Vernon’s Say les’ Civil Statutes, provides:

“A fire insurance policy, in case of a total loss by fire of property insured shall be held and considered to be a liquidated demand against the company for the full amount of such policy ; provided, that the provisions of this article shall not apply to personal property.”

The holding of the courts is practically uniform that a stipulation for an appraisement or arbitration, when the facts of the case bring it within the statute, is a nullity. Liverpool, London & Globe Ins. Co. v. Colgin, 34 S. W. 291; Ætna Ins. Co. v. Shacklett, 57 S. W. 583; Prather v. Conn. Fire Insurance Co., 188 Mo. App. 653, 176 S. W. 527; 14 R. C. L. Insurance, § 525, p. 1355, and authorities there cited. An excellent discussion of this question is found in the note to Williams v. Branning Mfg. Co., 47 L. R. A. (N. S.) 433, citing numerous authorities sustaining the rule, from which we quote with approval as follows:

“When a statute required the insurer to pay the policy holder the full sum written in the policy in case the property insured thereby shall be entirely destroyed by fire or other disaster insured against, the provisions in the policy for an appraisement of the amount of any loss are abrogated, nullified, and rendered nugatory by operation of law when the loss is total.”
“Under the operation of such a statute an arbitration to fix the amount of a loss is unnecessary, because there is naught that is legally the subject of an arbitration; there is nothing to arbitrate.”
“In such a case, the statute having determined the matter and fixed the amount, the very instant the property insured was wholly destroyed the agreement to arbitrate is nudum pactum— there is no consideration to support it; no benefit or advantage inures to the policy holder— no harm or disadvantage results to the underwriter from the agreement to arbitrate. It is a mere gratuity, and binds neither.”
“If the amount of a loss or damage to insured property is undisputable, either by the terms of the policy or by statute, the agreement to arbitrate is void, and the enactment of such a statute as has just been referred to manifests a public policy conclusively to close the question of value of property totally destroyed, which renders, whenever a loss is total, the usual provision for arbitration nugatory.”'

Under the finding of the jury that the parties entered into an arbitration under a mutual mistake as to the extent of the loss, the case is relieved of all questions raised by the pleadings and evidence upon the sufficiency of the arbitration proceedings, and the court is relieved of the duty of considering fhe assignments bearing upon it.

The judgment is therefore affirmed.
      dsssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PER CURIAM. HAUL, J.

text:
    BARCUS et al. v. J. I. CASE THRESHING MACH. CO.
    (No. 1208.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1917.
    On the Merits, June 20, 1917.
    On Motion for Rehearing, Oct. 3, 1917.)
    1. Appeal and Error <&wkey;648 — Amendment op Record — Authority oar District Court.
    The statement of facts is a part of the record made by the district court, and motions affecting such record and to make it speak the truth should be filed in that court.
    2. Appeal and Error <&wkey;818 — Hearing op Appeal — Postponement.
    Submission of an appeal will be postponed on motion filed prior to the submission to permit the taking of proper proceedings in the district court to perfect the record.
    On the Merits.
    3. Chattel Mortgages <&wkey;273 — Suits to Foreclose — Venue.
    An action on notes and to foreclose a chattel mortgage securing them was properly brought in a county in which part of the mortgaged property was situated, irrespective of the residence of the parties, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 12, providing that a suit for the foreclosure of a lien may be brought in the county in which the property subject to the lien or a portion thereof is situated.
    4. Corporations &wkey;>672(7) — Foreign Corporations — Pleading — Obtaining Permit —Necessity op Proof.
    In an action by a foreign corporation on notes for the price of a traction engine and fixtures and to foreclose a chattel mortgage thereon, where plaintiff’s pleadings did not show that the sale of the engine was consummated in Texas, an allegation that plaintiff had obtained a permit to do business in Texas was surplusage, and need not be proved.
    5. Appeal and Error <&wkey;17&wkey;RESERVATioN op Grounds op Review — Capacity to Sue.
    Where, in an action by a foreign corporation, defendant did not by plea raise an issue as to plaintiff’s failure to obtain a permit to do business in the state, and the fact that the business out of which the cause of action arose was transacted in Texas appeared only from the evidence introduced at the trial, this defense could not be urged for the first time on appeal.
    •6. Sales <&wkey;354(8) — Actions por Price — Pleadings — Matters to be Alleged.
    In an action on notes for the price of a traction engine and fixtures the answer alleged that to induce defendant to sign the note plaintiff represented that he was selling the engine and fixtures to R.; that R. could not pay sufficient ■cash to justify a sale on the security of the engine and fixtures; that if defendant would sign the notes as surety and the first three of the five notes were paid, plaintiff would on nonpayment of the other notes take the engine back and cancel the notes; that defendant -relied thereon and ■signed the notos as surety; that the first three notes were paid and discharged; that the engine and fixtures were tendered to plaintiff in as good condition as when sold, reasonable wear and tear excepted; that defendant claimed no interest therein; and that plaintiff had taken charge thereof and had the engine and fixtures in its possession and control. Held, that as it was alleged that plaintiff had accepted the engine, it was unnecessary to allege that it was tendered at the same place and in the same condition as when delivered.
    7. Pleading <&wkey;228 — Demurrer or Exception.
    An exception that the answer was an effort to vary the terms of a written agreement by showing a contemporaneous parol agreement, and that it was not shown that the engine was tendered at the same place and in the same condition as when delivered to the purchaser, was in the nature of a general demurrer rather than a special exception.
    8. Sales <&wkey;354(8) — Parol Evidence — Payment and Discharge.
    While the allegations as to the parol agreement by themselves would have been bad in view of the parol evidence rule, the effect of the entire pleading was to show a discharge of the remaining notes, and it is always competent for a party to a written contract to show that his liability has been terminated by some method known to the law, though in so doing the parol evidence rule is violated.
    On Motion for Rehearing.
    9. Appeal and Error <&wkey;1078(3) — Evidence i3&wkey;466 — Review — Matters Not Urged — Fundamental Errors.
    Error in sustaining a general demurrer to the answer was fundamental, which it was the duty of the court to consider, though ignored by the parties in-their briefs.
    10. Accord and Satisfaction <&wkey;25(2) — Pleading — “Payment.”
    In an action on notes for the price of a traction engine and fixtures, an answer alleging a parol agreement to take back the engine and fixtures in settlement of the last two notes if not paid, that the engine and fixtures had been tendered to plaintiff, and that it had taken charge thereof and was holding and claiming the engine and fixtures, was not a plea of accord and satisfaction as distinguished from payment, since “payment” is generally understood to mean a discharge by a compliance with the terms of the obligation or its equivalent, while in an “accord and satisfaction” the discharge is effected by the performance of terms other than those originally agreed on.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction; Payment.]
    11. Appeal and Error <&wkey;1040(6) — Harmless Error — Sustaining Demurrer.
    The sustaining of a demurrer to such answer was not rendered harmless by the court’s finding that defendant had renewed and extended the notes sued on, thereby waiving all previous agreements, where evidence was not admitted to sustain the facts alleged in the answer demurred to.
    Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.
    Action by the J. I. Case Threshing Machine Company against G. W. Barcus and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    G. W. Barcus, of Waco, and Turner & Rollins, of Amarillo, for appellants. Kimbrough, Underwood & Jackson, of Amarillo, for ap-pellee.

       Second petition for rehearing denied November 14, 1917.

   On Motion to Strike Ont Statement of Facts.

PER CURIAM.

Tke statement of facts is a part of tke record made by tke district court, and motions affecting suck record and to make it speak tke truth should be properly filed in that court. Boggess v. Harris, 90 Tex. 476, 39 S. W. 561; Ennis Mercantile Co. v. Wathen, 93 Ter. 622, 57 S. W. 946; Harris v. Stark, 101 Tex. 587, 110 S. W. 737; Willis v. Smith, 90 Tex. 635, 40 S. W. 401; Neville v. Miller, 171 S. W. 1109.

If prior to tke submission of this case tke appellee indicates a desire to have its submission postponed in order that it may take proper proceedings in tke court below to perfect tke record, we will postpone the submission of tke cause for that purpose; otherwise tke motion to strike out the statement of facts will be overruled.

On tke Merits.

HAUL, J.

Appellee, a corporation, organized under tke laws of tke state of Wisconsin, sued G. AV. Barcus, F. S. Young, and A. S. AValker on two notes, one for $300 and one for $400, and to foreclose a mortgage upon a traction engine, some disc plows, and a water tank. Tke original petition alleged that the defendant Barcus lived in Parker county, Tex., and tke other defendants in Deaf Smith county; tke supplemental petition alleged that all defendants except Barcus lived in Victoria county. Barcus filed a plea of privilege to be sued in McLennan county, alleging that at tke time he was required to and did answer he was a resident citizen of that county, and that none of tke exceptions to exclusive venue mentioned in tke statute existed in said cause. This plea was heard at tke June term, 1915, by tke court, and overruled, to which action of tke court Barcus excepted. At tke October term of the court, 1915, the other defendants who had been cited in the meantime filed their pleas of privilege, which were also overruled by tke court. A trial before the court resulted in a judgment against all of tke defendants for tke sum of $1,087.47, principal and interest, and $108.75 attorney’s fees, and a foreclosure of tke chattel mortgage upon tke property described in tke petition.

Appellants insist first that the court erred in overruling. their plea of privilege. The notes sued upon provide that they are payable at tke Western National Bank at Hereford, Tex., and “if not paid when due, to become payable at Dallas, Tex., with 10 per cent, attorney’s fees if sued upon or if placed in tke hands'of an attorney for collection.” Vernon’s Sayles’ Civil Statutes, art. 1830, subd. 12, provides that where the suit is filed for the foreclosure of a lien it may be brought in tke county in which tke property subject to such lien or a portion thereof may be situated. It was shown that tke property upon which a foreclosure of tke mortgage was decreed was situated in Deaf Smith county at the time the suit was instituted. This fact, under tke statute referred to, gave the district court of Deaf Smith county jurisdiction.

Under the second assignment appellant insists that the judgment is erroneous because the plaintiff alleged that it was a foreign corporation having a permit to do business in Texas, and no proof was admitted to sustain the allegation, and because it was shown by tke evidence of T. L. Ball that the contract for the sale of the engine was consummated at Hereford, Tex. This question has been considered several times and decided adversely to appellant’s contention. It does not appear from the pleadings of the plaintiff that the transaction out of which this suit originated was in Texas. So far as its pleadings show the order may have been sent from Texas to Wisconsin, and was therefore an interstate transaction. Since plaintiff’s pleadings do not show that the business was transacted in Texas, the allegation that plaintiff being a foreign corporation had obtained a permit is surplusage, and need not be proven. Appellant did not raise the issue-by plea in the court below, and the fact appearing only from the evidence introduced during the trial, it cannot be urged in this court for the first time. Mansur & Tebbetts Implement Co. v. Beer, 19 Tex. Civ. App. 311, 45 S. W. 972; Blackwell-Wielandy Book & Stationery Co. v. Perry, 174 S. W. 935; Studebaker Harness Co. v. Gerlach Mercantile Co., 192 S. W. 545; Huff v. Kinloch Paint Co., 110 S. W. 467, and authorities cited.

By their third assignment appellants urge-the proposition that the court erred in sustaining appellee’s exception to that part of the answer of appellant Barcus which is as-follows:

“4. For further answer, if required, this defendant alleges that it is true that he and his codefendants herein executed and delivered to plaintiff their five certain promissory notes of date, etc.; * * * and this defendant alleges that at the time said notes were so executed and as part of the inducement to get this defendant to sign same plaintiff, through its representative who sold said engine and fixtures, represented to this defendant that he was selling for plaintiff said engine and fixtures to the defendant J. O. Robinson, and that tke said Robinson could not pay sufficient cash on said deal to justify plaintiff in selling same on the security of the engine and fixtures, and that he required of -said Robinson to give some personal security for the payment of said.notes; that he, tke said agent of plaintiff, would sell said engine and fixtures to said Robinson if this defendant would sign said notes as surety, and stated to this defendant verbally that if tke first three of said notes were paid that the plaintiff would then, if said Robinson did not pay the other and last two notes, plaintiff would take said engine back and cancel said notes, and this defendant alleges that said representation so made by the plaintiff was part of the inducement for his having signed the same; that he relied upon said representations and signed same with the positive understanding and agreement on the part of plaintiff that he should not and would not be liable for the last two of said notes if the first were-paid and satisfied, and that acting on tke promise of plaintiff and relying thereon, this defendant did sign said notes as surety; that but for the said representations he would not have signed said notes. This defendant alleges that the agent of plaintiff who made said representations was the person who sold to said Robinson said engine; that he now remembers his name as a Mr. Ball; that he may be mistaken in the name of the agent; that the defendant J. 0. Robinson and A. S. Walker and F. S. Young' were tenants on the farm of this defendant; that the agent of plaintiff above sold said engine and fixtures to said Robinson, and that the said Robinson, Young, and Walker signed said notes as principals, and this defendant signed same as surety under the conditions as sét out above. This defendant alleges that the first three of said notes have been and were long prior to the filing of this suit fully paid off and discharged; that said engine and fixtures were tendered to the plaintiff in as good condition as when sold, reasonable wear and tear excepted; that this defendant and neither of the other defendants claim any interest therein, and this defendant has always been ready, able, and willing to carry out his part of said transaction, and this defendant alleges that the plaintiff has taken charge of said engine and now is holding and claiming the same; that plaintiff has so taken charge thereof, and has it in his possession and control, and that by reason of the above premises plaintiff is not entitled to recover of and from this defendant any sum whatever heroin, and that by reason of the premises the plaintiff is now estopped from claiming any judgment on said two notes sued on herein or any other notes that were given by this defendant for said engine.”

The exception sustained is that such pleading is an effort to vary the terms of a written agreement by showing a contemporaneous parol agreement, and because defendant fails to show that the engine was tendered at the same place an'd in the same condition as when delivered to the purchaser. The allegation being that plaintiff had accepted the engine, it was unnecessary to show that it was tendered at the same place and in the same condition as when delivered. In the briefs the exception is mentioned as a special exception. We think in its nature it is a general demurrer to this section of the charge. If the pleading had contained only the first paragraph of subdivision 4 of the answer, as we have set it out above, the exception would have been properly sustained, because the general rule obtains in Texas that parol evidence of a prior or contemporaneous agreement is not admissible to show that a promissory note providing for payment in money only might be satisfied in some other manner. Roundtree v. Gilroy, 57 Tex. 176; Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 821; Nixon v. First State Bank, 60 Tex. Civ. App. 7,127 S. W. 882. The second paragraph of this subdivision, as we have set it out, alleges the payment of the first three notes, and the further fact that plaintiff has taken charge of the engine. The effect of the entire section of the pleading is to show a discharge of the remaining notes. It is always competent for a party to a written contract to show that his liability has been terminated by some method know to the law. 17 Cyc. 691. To enforce the rule prohibiting the admission of parol evidence to affect a written contract would be to deprive appellant of his right to show that the debt sued upon had been satisfied. The few cases which have considered this question in effect hold that the parol evidence rule must give way to the superior right to show payment and discharge. Buchanan v. Adams, 49 N. J. Law, 636, 10 Atl. 662, 60 Am. Rep. 666; Zimmerman v. Adee, 126 Ind. 15, 25 N. E. 828; Van Valkenburgh v. Stupplebeen, 49 Barb. (N. Y.) 99, and authorities there cited.

It seems clear that if appellant signed the notes with the express understanding that if the first three were paid and appellee took charge of the engine for which they were all given, it should constitute a satisfaction of the last two is a defense, proof of which should have been admitted by the court, even though in doing so the parol evidence rule is violated.

The remaining assignments are overruled. For the error indicated the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

A careful review of the motion convinces us that no doubtful questions are presented, and the appellee’s request for permission to present the motion for rehearing in oral argument is denied.

Appellee insists that we have decided the controversy upon an issue not raised by. the briefs. The judgment was reversed because the court sustained exceptions to one of the defenses set up by appellant. We think the brief of the appellant sufficiently raises the question decided. In any event, the action of the court in sustaining the demurrer is attempted to be upheld in appellee’s brief by the first, second, and third propositions under the reply to appellants’ third assignment. In view of the fact that the exception which was sustained by the court is a general, rather than a special, demurrer, the action of the court upon it presents fundamental error, and it became our duty to consider it, even though the point had been ignored by both parties. San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518. The principal part of appellee’s motion is based upon the assumption that the pleading excepted to set up an accord and satisfaction, and that this court held that such was the effect of the allegations.

Appellee is mistaken in such assumption. We held that the portion of the pleading to which the demurrer was sustained was an allegation of payment and discharge, and there is nothing in the original opinion that would justify appellee in insisting that we held the pleading to be one of accord and satisfaction. Accord and satisfaction “is distinguished from payment in that by payment is generally understood a discharge by a compliance with the terms of the obligation, or its equivalent, while in an accord. and' satisfaction tbe discharge is affected by the performance of terms other than those originally agreed on.” 1 R. O. L. 178, § 2. The allegation is that the debt has been discharged in accordance with a parol agreement entered into at the time of the execution of the notes, and in tbe light of tbe above-quoted rule appellee is clearly in error-in insisting that the plea is one of accord and satisfaction. This disposes of the remaining grounds of the motion save one, which is that the action of the court in sustaining the demurrer is harmless error because the court found that Barcus had subsequently renewed an'd extended the note sued upon, thereby waiving all previous agreements. The defense of waiver was alleged by appellee. Because of the court’s action on the demurrer appellant was not permitted to prove the pa-. rol agreement alleged, and no evidence having been introduced upon it we cannot, of course, consider defenses alleged and facts found by the court in passing upon the correctness of the court’s ruling. The ruling of the court upon the demurrer must be determined by the allegations of the pleading excepted to, unless it appears from the record that evidence was introduced which tended to sustain the facts alleged.

The motion is in all things overruled.


author: RAINEY, C. J.

text:
    HOOKER et al. v. STATE ex rel. BRANNON et al.
    (No. 7883.)
    (Court of Civil Appeals of Texas. Dallas.
    June 16, 1917.
    Rehearing Denied Oct. 6, 1917.)
    1. Schools and School Districts <®=>39— Change in Boundaries — Review oe Proceedings.
    Under Rev. St. 1911, art. 2866, authorizing commissioners’ courts to change the boundary lines of independent school districts,. and Acts 34th Leg. c. 36, § 4, authorizing county school trustees to exercise the authority theretofore vested in commissioners’ courts with respect to subdividing the county into school districts and to making changes in school district lines, and section 4a, providing that the district court shall have general supervisory control of the action of the county board of school trustees in creating, changing, and modifying school districts, the district court had power to review the action of a- county board of school trustees in changing the boundary line between two independent districts.
    2. Appeal and Error <S3»301, 745 — Review— Motion eor New Trial — Assignments op Error — Transcript.
    Assignments of error, not presented in a motion for a new trial or shown by the transcript, will not be considered, unless they present fundamental error.
    3. Appeal and Error <§=^742(6) — Assignments op Error — Sufficiency op Statement.
    Where, in a suit to review the action of a countv board of school trustees in detaching territory from one independent school district and attaching it to another, the statement under an assignment of error did not show in what particular the documentary evidence specified therein failed to authorize the judgment annulling the action of the board, the court was not required to make a search of all the evidence in the statement of facts for this purpose.
    4. Appeal and Error <®=719(6) — Assignments op Error — Fundamental Error— Sufficiency of Evidence.
    Whore, in such proceeding there was evidence that the district to which the territory was attached by the board contained more than 3,000 acres greater territory than the district from which it was detached, and more than twice as large a scholastic census, there was no fundamental error apparent on the face of the record, reviewable without being properly assigned, in the district court’s holding that the board acted wrongfully in making the change of boundaries.
    Appeal from -District Court, Hill County; Horton B. Porter, Judge.
    Proceeding by tbe State, on tbe relation of C. H. Brannon and otberSj against R. H. Hooker and others. From a judgment for relators, defendants appeal.
    Affirmed.
    J. J. Averitte, of Houston, and Wear & Frazier, of Hillsboro, for appellants. Walter Collins, of Hillsboro, and Chas. L. Black, of Austin, for appellees.
   RAINEY, C. J.

We adopt tbe following statement from appellants’ brief of the nature of tbe suit, which we deem correct, to wit:

“This proceeding was instituted in' the district court of Hill county, Tex., by the state of Texas, upon the relation of O. H. Brannon et al., trustees of the Massey independent school district, and by the said school district, for the purpose of testing the validity of a certain order entered by the county board of school trustees of Hill county, by which order said board of school trustees undex-took to detach certain territory from the Massey independent school district and attach same to the Abbott independent school district. The first portion of the petition is in regular form of a quo warranto proceeding to set aside the order assailed and to prevent the school trustees of the Abbott independent school district from exercising their corporate and official powers over the territory affected. The Abbott independent school district and all the trustees thereof, and the assessor and collector of taxes thereof, were joined as defendants in the suit. In the second portion of the petition the trustees of the Massey independent school district, in their official capacity and as individual taxpayers of the same, joined bv the Massey independent school district, for further cause of action sought to have the order of the county board of school trustees reviewed, revised, and set aside by the district court, as authorized by law.
“The first portion of the petition was therefore based upon the theory that the order of the county board of school trustees was invalid for lack of power to enter it, and the second portion of the petition was based upon the theory that, if the nlaintiffs were mistaken as to their first count, then that they were entitled to have the order reviewed and revised on the facts under the statutory power vested in the district court. The case was tried before the court without a jury, and the court rendered a general judgment, finding that from the law and facts the plaintiff and relators were entitled to recover, and rendered judgment in their favor. From this order the appellants, defendants in the court below, have appealed.”

There, are only two assignments of error, found in the transcript. The first one attacks the judgment of the district court for reviewing the action of the board of the county school trustees for nullifying the extending of the boundary lines of the Abbott independent school district, so as to include a strip of land, a part of the Massey independent school district. The second assignment is similar, but specifically complains of the court for enjoining the trustees of the Abbott district for exercising jurisdiction over said detached strip.

Under the act of the Legislature of 1905 (article 2866, R. S. 1911), commissioners’ courts were authorized to change the boundary lines of independent districts situated in the county. By Acts 34th Leg. p. 70, § 4, county school trustees are authorized “to exercise the authority heretofore vested in the commissioners’ court with respect to subdividing the county into school districts, and to making changes in school district lines.” Section 4a provides:

“The district court shall have general supervisory control of the actions of the county board of school trustees in creating, changing and modifying school districts.”

Erom these provisions of the law we are of the opinion that the district court had the power to review the action of the Hill county board of school districts in changing the boundary line between the two independent districts in controversy.

Two other assignments of error are presented in appellants’ brief, but not having been presented in a motion for new trial, or shown by the transcript, they will not be considered under the rules promulgated by the Supreme 'Court, and we cannot consider same unless fundamental error is shown in the fourth assignment, which appellants present as fundamental error, which assignment is as follows:

“All the evidence adduced having without contradiction conclusively established that at the time of the institution of this cause and at the time of the disposition of the same in the court below, the territory in controversy herein, and over which relators claimed authority to exercise the corporate franchises, privileges, and powers conferred by law upon the Massey independent school district and its officers was not any part of the territory of the Massey, independent school district, but that the county board of school trustees of Hill county, in the exercise of an authority lodged in said board by the law, by its order regularly made and entered, and still in full force and effect, had theretofore detached said territory from the territory of the said Massey independent school district, and no evidence having been adduced supporting or tending to support relators’ allegations of facts by reason of which it was prayed that said order be set aside by the district court, the judgment of the court below is without support in the evidence, and is therefore fundamentally erroneous.

The statement made by appellants under this assignment calls attention to par- [ agraph 10 of appellees’ petition, to the order of the county judge of 1-Iill county, decreeing the. due incorporation of Massey independent school district, petition to the county board of school trustees showing that all the owners of territory in dispute desired to be detached from the Massey district, order of county board of school trustees detaching from the Massey district the territory in controversy, and admission that relators all live in the Massey district, and further states that there was no testimony adduced, and none in the record, in support of the allegations of fact presented as ground for asking that the order of the county school trustees be set aside, on the ground set out in paragraph 10 of said petition. The foregoing contains substantially the statements as made. It does not attempt to show in what particular the documents named fail to state defects authorizing the judgment, and in order to do so it would require a search of all the evidence in the statement of facts, which this court is not required to do. There is other evidence which appellee says was amply sufficient to support the judgment, and that there is no error apparent upon the face of the record requiring the court to so act.

There was further evidence showing that the two districts were contiguous; that the Abbott district contained more than 3,000 acres greater territory than the Massey district when the change was made, taking about 110.7 acres from the Massey district, and at -the time of the change Abbott district had a scholastic census of 209, and Massey district 94. There was a map or plat of Abbott school district, the contents of which are not shown. That with said territory added gave Abbott district 12,983 acres and Massey district 7,696 acres. From the testimony introduced we are unable to say that the trial court had not sufficient grounds for holding that the school trustees acted wrongly in detaching a part of the Massey district and adding it to the Abbott district; at least we are of the opinion that, if there was error, it is not shown by the face of the record, and therefore not fundamental, and we cannot consider the error, it not being properly assigned.

The judgment is affirmed.
      <S=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 197 S.W. — 31


author: BOYCE, J.

text:
    GULF, C. & S. F. RY. CO. v. GENTRY.
    (No. 1193.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 20, 1917.
    Rehearing Denied Oct. 3, 1917.)
    1. Carriers @=^278(1) — Carriage op Passengers — Actions—Questions por Jury.
    In an action by a passenger whom a railroad company wrongfully , and negligently put off at a station some miles from her destination, the question whether the passenger who suffered injuries in riding horseback to her destination was guilty of contributory negligence which was the proximate cause of the injury held for the jury.
    2. Carriers @=3277(1) — Carriage of Passen-gees — Negligence of Company. .
    Where a railroad company’s employes negligently informed a passenger that she had reached her destination, thus causing her to alight at a small station some distance therefrom, and the passenger, because of business necessity, rode horseback to her destination, a recovery for injuries occasioned hy the exposure of the ride sounds in tort,' and can be allowed only when it was reasonable under the circumstances for the passenger to voluntarily incur the exposure ; the theory being that a railroad company is bound to know that it is carrying passengers in all conditions who are traveling on missions of more or less urgency.
    3. Trial @=>191(18) — Instructions—Weight of Evidence.
    In an action by a female passenger who claimed that her injuries resulted in a miscarriage and that a second followed, a charge that the evidence of the second miscarriage might be considered for the purpose of showing the extent of the injury caused hy the first is not one on the weight of the evidence, where there was testimony that the second was artificially caused.
    4. Carriers @=>278(2) — Carriage of Passengers — Instructions.
    Where the servants of a railroad company called a passenger’s station before she reached it and she was thus induced to alight, a charge that it was the duty of the railroad company to have its stations properly announced, which required a finding that the miscalling of the station was negligence before verdict for plaintiff could be authorized, was correct.
    5. Carriers @=276(1) — Carriage of Passengers — Actions—Burden of Proof.
    Where a passenger’s destination was called before a train reached that point and the passenger alighted and suffered injuries in riding on horseback to her destination, burden of proving that she was guilty of contributory negligence was on the railroad company.
    6. Trial @=>234(7) — Instructions—Misleading.
    Where defendant’s contention that plaintiff was guilty of contributory negligence was based on plaintiff’s own evidence, a charge that the burden of proof was on defendant cannot be treated as misleading, where other paragraphs of the charge instructed the jury that should it be found by a preponderance of the evidence that certain facts existed, then plaintiff was guilty of contributory negligence.
    7. Trial @=3194(1), 249 — Instructions—Request.
    Where a requested instruction was argumentative and on the weight of the evidence, the court was justified in refusing it.
    8. Carriers @=>278(2) — Carriage of Passengers — Actions—Instructions.
    A passenger’s station being called before she reached her destination, the passenger alighted, and, being under contract to appear at her destination at 9 o’clock the following morning, rode horseback to her destination some miles distant. Claiming injury by reason of the exposure of the ride, etc., she sued, seeking to recover for the railroad company’s negligence. The company contended that she was guilty of contributory negligence, and should have sought lodging and remained in the town where she alighted, rather than attempt the trip under the circumstances. The court charged that if the passenger was under contract to be at her destination at 9. the next morning, and she was informed and believed she could not reach her destination by waiting for the next train. and the only practicable means of transportation was horseback, and that without fault or negligence on her part she undertook the trip, then if the injuries resulted she might recover, but that it was incumbent on her to use ordinary care in selecting a safe and practicable means of reaching her destination. Held, that the charge did not present defendant’s theory, and for that reason was subject to objection.
    9. Carriers @=>278(1) — Carriage of Passengers — Actions—Jury Question.
    In such case, evidence held to require the submission of the issue that the passenger, on discovering she had been left at the wrong station, should have made her situation known to the local agent, who could have arranged transportation on a through train which did not ordinarily stop at the station where she alighted, and that by reason of her failure to make her situation known to such agent, the passenger was guilty of negligence.
    10. Trial @=>194(1) — Instructions—Weight of Evidence.
    A charge which would have had the tendency to create in the minds of the jury the impression that certain facts should, in the opinion of the court, be given controlling effect in their determination is bad as on the weight of the evidence.
    11. Carriers @=>277(4) — Carriage of Passengers — Injuries—Proximate Cause.
    Where a passenger alighted, before reaching her destination, the wrong station being called, and suffered injuries in riding horseback to her destination, the fact that the railroad company did not foresee the particular injury suffered is no defense, for its negligence might be the proximate cause, though the injury was not foreseen; hence a charge that the company would not be liable for the injury unless in the exei'cise of high degree of care it could reasonably have been foreseen was properly refused.
    Appeal from District Court, Dallas County ; E. B. Muse, Judge.
    Action by Mrs. Jessie Gentry against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Terry, Gavin & Mills, of Galveston, E. M. Browder, of Dallas, and Lee, Lomax & Smith, of Ft. Worth, for appellant. Adams & Sten-nis, of Dallas, for appellee.
   BOYCE, J.

This suit was brought by Mrs. Gentry against the appellant railway company to recover damages alleged to have resulted from the negligence of the railway company in putting her off its train at the wrong station, and this appeal is from a judgment rendered on a general verdict of the jury for the plaintiff.

Giving the verdict its proper effect on the conflicts in the evidence we find: .That Mrs. Gentry, riding on a ticket over appellant’s road entitling her to 'go to Justin, was, on account of the negligence of the employes of the railway company in informing her that she had reached Justin, caused to get off at Haslet, a small station nine miles from Justin, at about 9 o’clock p. m., January 19, 1915. Appellee was employed by a theatrical company, and had been directed by the manager to be at Justin at 9 o’clock the next morning for rehearsal, though no perform-anee was to be given until that evening, and appellee testified that she feared that she would be discharged if she did not report as directed. Upon learning that she was not at Justin,- and that there would be no train to Justin until 11 o’clock the next morning, that the roads were impassable for any kind of vehicle, and that the only available means of conveyance that would enable her to reach Justin in time to keep her engagement was by horseback, appellee secured horses and accompanied by a man who brought the horses back to Haslet rode through the country to Justin. The roads were very rough so that they were about five hours on the way; the night was cold, became cold, and appellee was chilled from the cold and made sick by the ride. She was about three months advanced in pregnancy, and a few hours after reaching Justin suffered a miscarriage, and the damages sought to be recovered are on this account. Appellee knew that it was not advisable for her to subject herself to any unusual strain or exertion; she learned that she could probably secure a place to stay at Haslet for the night; she was unacquainted at either place, and the trip was taken because, as she expressed it, “she had to be at Justin by 9 o’clock” on account of her engagement.

Appellant by the first and second assignments asserts that the court erred in not peremptorily instructing a verdict for it because the facts recited conclusively show that Mrs. Gentry was guilty of contributory negligence, and because the ills suffered by her were not the proximate result of the negligence of the appellant. These assignments present question of considerable difficulty, and a holding either way on them can be supported by respectable authority. If the act of appellee in riding across the country on horseback is to be judged with reference to a care for her physical comfort and well-being alone, there could be but one answer to the question as to whether it was prudent, but if we are to take into consideration necessities other than the physical comfort and health that might justify one in taking the risk of exposure, a different question is presented. Circumstances can be conceived where the conclusion would be clear that a person of ordinary prudence would take the risk of such a trip; on the other hand, if the purpose of the traveler was only to make a social visit, it would be equally clear that such a trip would not be undertaken by a person of ordinary prudence in Mrs. Gentry’s physical condition. We are of the opinion that the facts of this case place it in that middle ground where reasonable minds might differ as to the conclusion, and the question of negligence under such circumstances thus becomes one for the jury.

Thé injury to appellee was not of course the immediate result of the. wrong of the railway company in putting her off at Haslet instead of Justin, but of the trip taken by her of her own volition which she was impelled to take, not in an effort to reach a safe and secure shelter, but by the business necessity which she considered herself to be under. If a carrier negligently puts a passenger off at a place where there is no shelter available, the exposure incident to an attempt to reach a safe lodging place would be clearly the direct and proximate result of the wrong, and could have been reasonably anticipated by the carrier. But when the person is discharged at a place where there is safe and comfortable shelter to be had and where a person of ordinary prudence 'would remain but for some urgency of his particular situation, the injury resulting from exposure attendant upon an effort to reach the destination by other means becomes so remote that a conclusion as to liability under such circumstances is more difficult. In the earlier cases the cause of action was treated as being based on a breach of the contract of carriage, and recovery was denied on the ground that the carrier had no notice of the special damages likely to result' from a breach thereof. Later cases, however, have allowed recovery to be had in tort, and the rule in the earlier cases has been considerably relaxed. The theory of recovery in such cases must evidently be based on the assumption that the carrier is bound to know that it is carrying passengers in all conditions and who are traveling on various missions of more or less urgency, and that it is natural for a traveler put off at the wrong place to attempt to reach his destination even at some risk from exposure. The Supreme Court, in the case of St. L. & S. W. Ry. v. Ricketts, 96 Tex. 68, 70 S. W. 315, states the rule applicable to such cases as follows:

“Since Ricketts and wife were destined for Clinton, appellant, if it wrongfully carried them beyond that point, ought to have foreseen that they would do that which it was prudent for them to do under the circumstances, and to have contemplated any exposure to which they would have been subjected in a natural and prudent effort to return. * * * It was their right to go back, and the question is whether or not, in choosing the means of transportation, and in their other conduct they acted as persons of ordinary prudence; and this was a question for the jury.”

The present case is an extreme one, going further than any we have been referred to, but we have concluded that the application of the rule announced above requires us to hold that in this case the question as to whether the negligence alleged was the proximate cause of the injury, and as to whether Mrs. Gentry was guilty of contributory negligence, was for the jury to decide. The following authorities tend directly to support this conclusion: St. L. &. S. W. Ry. Co. v. Ricketts, 96 Tex. 68, 70 S. W. 315; St. L. & S. W. Ry. Co. v. Foster, 46 Tex. Civ. App. 517, 103 S. W. 194; St. L. & S. W. Ry. Co. v. Franks, 52 Tex. Civ. App. 614, 114 S. W. 875; writ of error denied, G., C. & S. F. Ry. Co. v. Cleveland, 33 S. W. 687; recovery was denied, but reference was made to the fact that: plaintiff! was under no pressing necessity to reach his destination. Cook v. Beaumont S. L. & S. W. Ry. Co., 160 S. W. 123; recovery was also denied in this case, hut again reference was made to the fact that there was no pressing necessity for the presence of the passenger at the i>lace of his' destination prior to the time he could have reached there by another train; Pittsburgh, C., C. & St. L. Ry. v. Klitch, 11 Ind. App. 290, 37 N. E. 560; C., H. & I. Ry. Co. v. Eaton, 94 Ind. 475, 48 Am. Rep. 179. A general discussion of the questions involved and citations of numerous authorities may be found by reference to the following citations: Sutherland on Damages (4th Ed.) §§ 49, 938-940; Sedgwick on Damages (9th Ed.) §§ 150, 867-872; notes to 7 L. R. A. (N. S.) 1180; 17 L. R. A. (N. S.) 1226; 41 L. R. A. (N. S.) 745; R. C. L. vol. 5, p. 102, § 738. An examination of these last authorities show that there is considerable conflict and confusion on this subject. The following authorities in this state tend to support appellant’s position to some extent at least: I. & G. N. Ry. Co. v. Addison, 100 Tex. 240, 97 S. W. 1037, 8 L. R. A. (N. S.) 880; T. & P. Ry. Co. v. Cole, 66 Tex. 562, 1 S. W. 629; St. L. & S. W. Ry. v. Thomas, 27 S. W. 419. In the Addison and Thomas Cases the carrier failed to stop and take on passengers, and some distinction is suggested by the Supreme Court in the Addison Case between such a case and one where the passenger is wrongfully put off at a place other than his proper destination. This distinction is also made in the case of Malcolm v. L. & N. Ry. Co., 155 Ala. 337, 46 South. 768, 18 L. R. A. (N. S.) 489, 130 Am. St. Rep. 52. We do not undertake to say that there ought to be any real difference in liability in such cases, but simply refer to the suggestion as a possible means of harmonizing the cases. In the Cole Case it was held that a woman was guilty of contributory negligence in walking to her destination on a cold night when she could have secured accommodations at the place where she was put off. About the only difference between .that case and this one is that it was not shown in such ease that Mrs. Cole was under any particular necessity of reaching her destination before the next day. Issues of contributory negligence and proximate cause ordinarily present questions of facts, and the holding of a court that the particular facts of a particular case leads to a particular conclusion on such questions in the case before the court are not so valuable as authority in other cases where the facts are different except' as they establish some principle by which to determine similar eases. The Ricketts Case is the only one of the cases by the Supreme Court in which a rule of law governing such cases is announced, and we have applied it with the result as above stated.

The third and fourth assignments complain of the action of the court in instructing the jury that evidence of a second miscarriage might be considered for the purpose of showing, or tending to show, the extent of the injury caused by the first miscarriage. It was alleged and proven that Mrs. Gentry, on July 3,' 1915, had a second miscarriage. There was testimony to the effect that one miscarriage tends to cause another, and ap-pellee testified that she had had one child before the first miscarriage, and had done nothing to bring about the second miscarriage, this testimony thus tending to show that it may have been brought about by a predisposition thereto, the result of the first miscarriage. The physician who attended appellee after the second miscarriage testified that in his opinion it had been caused by artificial means though he could not be positive as to this. We do not think the charge was error under the circumstances. Rapid Transit Ry. Co. v. Smith, 98 Tex. 553, 86 S. W. 322. While a qualifying clause would have freed it unquestionably from the imputation that it was on the weight of the evidence, we hardly think the jury could have considered it as having that effect, or that their verdict was in any way affected thereby.

The court told the jury generally that it was the “duty of a railroad company to have the names of stations properly announced,” etc., and the appellant complains of this part of the charge because it imposes an absolute duty, instead of the duty to exercise ordinary care in this respect. The charge, after thus stating the duty of the company, required a further finding that the miscalling of the station was negligence before a verdict for plaintiff was authorized. This was, we think, a correct charge on the law. H. & T. C. Ry. Co. v. Cohn, 22 Tex. Civ. App. 11, 53 S. W. 698; Hutchinson on Carriers, § 1121.

The sixth assignment comxdains of the charge of the court in placing the burden of proof on the issue of contributory negligence on the defendant, because the facts upon which defendant based its claim, that plaintiff was guilty of contributory negligence were necessarily developed largely from the plaintiff’s own evidence. If the court was correct in refusing the peremptory instruction for defendant, the burden of proof on the issue was under the rules announced in the leading case of G., C. & S. F. Ry. Co. v. Shieder, 88 Tex. 152, 30 S. W. 902, 28 L. R. A. 538, on the defendant. It has been held, however, in a number of cases that where the plaintiff’s evidence discloses the facts upon which the defendant relies to sustain its plea of contributory negligence, it is misleading to instruct that the burden is upon the defendant because the jury might infer from such charge that it could, in determining the question, consider only the evidence offered by the defendant. T. & P. Ry. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; G., C. & S. F. Ry. v. Hill (Sup.) 69 S. W. 140; St. L. & S. W. Ry. v. Martin, 26 Tex. Civ. App. 231, 63 S. W. 1089. But in this case the court devoted four separate paragraphs of the charge to instructions informing the jury that if it should be found from a “preponderance of the evidence” that certain stated facts existed, then appellee would be negligent, etc.' Upon such instructions the jury could not have been misled. G., C. & S. F. Ry. v. Howard, 96 Tex. 582, 75 S. W. 805.

Appellant contends that the principal issue of contributory negligence relied upon by it, to wit, whether appellee should have sought lodging and remained in Haslet for the night rather than attempt the trip under the circumstances, was confused in the charge of the court as complained of in the seventh assignment, which confusion appellant asserts would have been cleared by the giving of the requested instruction the refusal of which is made the basis of the eighth assignment. The court, in submitting the plaintiff’s right to recover, charged the jury that if they should find that Mrs. Gentry was under contract to be at Justin at 9 o’clock the next morning, and that she was informed and believed that she could not reach her destination by such time by waiting for the next train, and that the only practicable means of transportation was by horseback, and that without fault or negligence on her part she undertook to make the -trip on horseback, then if the injuries as alleged resulted and the defendant was guilty of negligence as charged, they should find for the plaintiff. The fourth paragraph of the charge is as follows:

“It was incumbent upon Mrs. Gentry to use ordinary care in selecting a safe and practicable means of reaching her destination after she discovered that she had got off at the wrong station, and if you find and believe from the evidence that she did not use such care, she would be guilty of negligence.”

Following this statement as to appellee’s duty in this regard and as to the care of herself after the miscarriage, the court by the seventh paragraph of the charge instructed the jury to find for the defendant “if you find and believe from a preponderance of the evidence that Mrs. Gentry was guilty of negligence in going from Haslet to her destination by horseback, or in not procuring some other áieans of transportation,” etc. The defendant made a specific objection to the second paragraph of the charge because the idea was thereby conveyed that appellee was obliged to exercise care only in selecting a means of reaching her destination on that night, and such charge excluded the consideration of the contention of appellant that appellee was negligent in not remaining at Haslet for the night, giving up the attempt to reach her destination that night by any means. We think the charge is subject to the objection urged against it, and, as we view it, a wrong conception was given the jury as to the main defense urged by appellant. We therefore sustain the seventh assignment. The requested instruction on this issue presented by the appellant is argumentative and on the weight of the evidence, and the court was justified in refusing it on this account.

Another ground of contributory negligence pleaded by appellant was that appellee, upon discovery that she had been left at the wrong station, should have made known the situation to the local agent at Haslet, and was negligent in not doing so. In this connection it was further pleaded that if the railway company had been informed of the situation, it could and would have arranged to have appellee carried to her destination on a through train, which was due to reach Justin at 9:15 ,a. m., hut which did not ordinarily stop at Haslet and Justin. The evidence was sufficient to require the submission of the issue if a proper request therefor had been made. We are inclined to the opinion that the charge requested on this issue 'is also subject to objection as being on the weight of the evidence, in that a statement of particular evidence made in the manner used in this charge would have a tendency to create in the minds of the jury the impression that such facts should, in the opinion of the court, be given controlling effect in their determination of the issue.

The court did not define “proximate cause,” and the appellant requested an instruction “on the issue of proximate cause,” which informed the jury that appellant would not be liable for a miscarriage caused by the horseback trip from Haslet to Justin “unless in the exercise of a high degree of care such miscarriage could have been reasonably foreseen by the defendant.” It is not necessary that the specific injury be foreseen as the probable result of an act of negligence before the wrongdoer can be held responsible for it, and this charge would have been misleading. T. & P. Ry. Co. v. Carlin, 111 Fed. 777, 49 C. C. A. 605, 60 D. R. A. 462; 29 Cyc. 495; Sutherland on Damages (4th Ed.) 28. We therefore overrule the tenth assignment.

The pleading and evidence were sufficient to raise the issue of negligence on the part of appellee in failing to secure proper treatment after the miscarriage, and the eleventh and last assignment complains of that part of the fifth paragraph of the charge on this issue in which the jury is informed that it was appel-lee’s duty “to use ordinary care to protect herself and prevent further injury by such reasonable means as was within her reach,” etc. Appellant objects to the qualification made by the last clause as stated. If this was error, we think it was harmless, particularly when considered in connection with the eighth paragraph of the main charge and the fifth special charge requested by appellant and given.

Reversed and remanded.
      itejPor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    JENKINS v. STATE.
    (No. 4538.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Criminal Law <&wkey;511(l) — Larceny — Accomplice Testimony— Sufficiency.
    Evidence corroborative of accomplice held sufficient to warrant conviction of the crime of cattle theft.
    2. Criminal Law <&wkey;>453 — Larceny—Nonex-pert Evidence — Admissibility.
    In a prosecution for larceny, the statement of a witness that on the night of the offense he saw two men in possession of a cow, and to the best of his knowledge one of the men was defendant, is admissible, though not positively sworn.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    John Jenkins was convicted of cattle theft, and he appeals.
    Affirmed.
    P. M. Scott and L. H. Betts, both of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant.was convicted of cattle theft; his punishment being assessed at two years’ confinement in the penitentiary.

The main insistence of appellant is that the evidence is insufficient in that the accomplice was not corroborated as required by law. This he presents in different ways, among others, requesting the court to charge the jury to acquit because the evidence is not sufficient. We deem it unnecessary to go into anything like a detailed statement of the facts.

The state’s case is made by the testimony of the accomplice who swears pointedly and positively to the fact that he and defendant stole the cow, carried it to defendant’s house, and the next morning carried it to Mr. Luther, who bought it, paying therefor $20. To corroborate this witness the state introduced a witness who testified that at night he saw twoi men going along the road with a cow. One of these he identified “to the best of his knowledge” to be defendant. This is the cow it is supposed the accomplice and defendant drove to appellant’s home. That appellant went with the accomplice from his house to Mr. Luther’s with the stolen cow is conceded. Mr. Luther testified that he was at home at the time engaged with his wife in canning fruit, and dressing some fresh fish. This was in the rear of his residence. While there appellant came around the house and informed him that there was a boy at the front, at least on the opposite side of the house, who had a cow for sale. Mr. Luther went to and talked with the accomplice Kennedy, and finally purchased the animal. Appellant, by the weight of the testimony, is shown to have remained behind the house with Mrs. Luther and another party or two, assisting her i'n the fruit matter and dressing the fish. Appellant admits that the cow was brought to his house at night by the accomplice Kennedy, but he states Kennedy told him he had bought the cow. The animal was brought there somewhere in the neighborhood of midnight. Mr. Luther testifies that defendant was, in a qualified sense, in his employment; that is, appellant would ascertain where cattle could be bought and give him this information. .Luther was in the business of purchasing cattle, and would make the trade if it suited him, employing appellant to drive the cattle home, paying him from $1 to $2, owing to the distance and the trouble, etc. Not long prior to the time of the theft of this head of cattle, defendant informed Mr. Luther that the alleged owner Brown had cattle for sale. Luther went with him to look at the cattle, and Brown declined at the time to sell. This cow it seems was one of the bunch of five or six head of cattle. This was shortly before the theft.

We are of opinion that this evidence is sufficient to corroborate the acccomplice. A very safe rule in testing the sufficiency of the corroboration as tending to connect is the elimination of the testimony of the accomplice, and then ascertain from the remainder of the facts whether or not there is evidence, either positive or circumstantial, which tends to connect the defendant with the commission of the crime. If so, the accomplice is corroborated. Eliminate the accomplice, we have these facts: That appellant and Mr. Luther went to look at Brown’s cattle, who declined to sell. One of these cattle is found in possession of defendant and the accomplice at Luther’s house nine or ten miles from the place where Brown lived and about five or six miles from appellant’s residence. Appellant’s conversation with Luther notifying him of the fact that the accomplice had the cow and wanted to sell it, and his other statements that he accompanied the accomplice with the cow, stand out as some of the circumstances, and the identification, though weak, by the witness that defendant was one of the men in charge of the cow the previous night. Appellant also admits that Kennedy brought the cow to his house late or about midnight on the night prior to selling to Luther. While these facts in and of themselves might not be sufficient to predicate a conviction, yet they form the basis of connecting the defendant with the theft. Of course, they might be explained, but here is a stolen cow; the party is in possession, and no explanation given at the time except that his accomplice, a man who helped him bring the cow there, wanted to sell it, and that the accomplice brought the cow to appellant’s house, and appellant was not connected with the caption or taking. In looking for corroboration we look at the facts which would connect the defendant with the commission of the offense. If these are explained it then is a question to be settled by tbe jury under proper instructions. So we tbink tbe evidence is sufficient tending to connect tbe defendant with tbe commission of tbe crime, and thus corroborates tbe accomplice.

Appellant assigns as error tbe introduction of tbe testimony of tbe witness Foreman. He stated, in substance, with reference to seeing tbis cow tbe nigbt before carried by two men, that be did not know wbo they were, but to tbe best of bis knowledge one of tbe' men in possession of tbe cow was appellant; that be bad known appellant for quite a while. Appellant excepted to tbis because it was not positively sworn; that it was an opinion, and therefore incompetent and inadmissible. We cannot agree with tbis contention under tbis record. The matter underwent some investigation in an opinion by Judge Henderson in Tate v. State, 35 Tex. Cr. R. 231, 33 S. W. 121. In Harris v. State, 62 Tex. Cr. R. 235, 137 S. W. 373, Judge Prendergast wrote at length upon tbe question, adhering to tbe rule laid down in the Tate Case. To tbe same effect is Bowen v. State, 60 Tex. Cr. R. 595, 133 S. W. 256; Sparkman v. State, 61 Tex. Cr. R. 429, 135 S. W. 134; Perry v. State, 69 Tex. Cr. R. 644, 155 S. W. 263. While tbis evidence was not very decisive or strong, yet it was a circumstance tbe weight of which was to be passed on by tbe jury in summing up their conclusion.

The judgment is affirmed.
      <§^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes