source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    HIGHTOWER v. STATE.
    (No. 3876.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.)
    1. Bubglaby <&wkey;41 Sufficiency of Evi-eence.
    In a prosecution for burglary, evidence held, sufficient to authorize a verdict of guilty as principal, but not as an accessory.
    [Ed. Noté. — For other cases, see Burglary, Cent. Dig. §§ 9A-103, 109; Dec. Dig. &wkey;41.]
    2. Cbiminal Law &wkey;>59 — “Accessoby.”
    Under Pen. Code 1911, art. 86, defining an accessory as one who, knowing that an offense has been committed, conceals the offender, or aids him to avoid arrest or trial, the accessory becomes criminally connected with the principal and not the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. &wkey;359.
    For other definitions, see Words and Phrases, First and Second Series, Accessory.]
    3. Criminal Law <&wkey;69, 76 — Accessory — Concealment of Knowlebge.
    Concealment of knowledge that a crime is to be committed does not make a party an accessory before or after the fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 87, 93; Dec. Dig. <&wkey;>69, 76.]
    4. Criminal Law <&wkey;76 — Accessory—-Failure to Inform.
    Failure to inform on a person known to have committed a crime will not make one an accessory.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 93; Dec. Dig. &wkey;>76.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Bill Hightower was convicted as an accessory to a burglary, and he appeals.
    Reversed and remanded.
    L. N. Frank, of Stephenville, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The indictment against appellant contained three counts; one charging him with being a principal in the burglary, another that he was an accomplice, and the third that he was an accessory to the crime.

Many questions are presented for review, some of which were not presented in the trial court, but we do not deem it necessary to discuss them at length, but merely to say that none of them present reversible error if the evidence is sufficient to sustain the verdict. Had the jury found appellant guilty as a principal in the transaction, the evidence, in our opinion, would have sustained the verdict, but the jury by their verdict specifically found him guilty as an accessory to the crime. The state’s case is that Hig-ginbotham’s store was burglarized, and some property stolen therefrom, among the articles stolen being a 38-ealiber pistol. Appellant is shown to have been in and around that store on Saturday evening and Saturday night. Sunday morning after the burglary, Sammie Mayberry and another testified they saw appellant take a pistol out of a stove in their residence and hand it to Nick Mayberry. This pistol was subsequently found in possession of Nick Mayberry, and was identified as the pistol stolen from Hig-ginbotham’s store. These circumstances would have justified a finding that appellant was a principal in the transaction, as he the morning after the burglary is, by this testimony, shown to be in possession of property stolen from the burglarized store.

Appellant did not testify on the trial, but there was introduced in evidence a statement made by him voluntarily when before the grand jury. In this statement appellant admits he was at Higginbotham’s store Saturday evening and Saturday night, but says he left with Sammie Mayberry and another negro, whose name is given merely as “Lige.” The state’s testimony corroborates the statement that appellant left the store with these two negroes. Appellant says, when he was at the store Saturday evening, he saw Nick Mayberry hid in the ceiling of the store, and Nick whispered to him, “I have got ’em now.” The testimony of the officers corroborate him as to some one being above the ceiling. He admits he told no one about seeing Nick Mayberry hid above the ceiling. He denies that Sunday morning he got the pistol out of the stove and gave it to Nick, but says he saw Nick with the pistol at his home Sunday morning, and Nick then told him where he had hidden the other stolen property. He, Nick, and George Clark on Monday night rode a freight train to Ft. Worth, where they were all three arrested, Nick being in possession of the pistol. Does any of the evidence tend to show that he was an accessory to the crime of burglarizing this house? As before said, the testimony would support a finding that he was a principal in the commission of the offense, but an accessory is defined by our Code (Pen. Code 1911, art. 86) as one who, knowing that an offense has been committed, conceals the offender, or gives him any aid that he may avoid arrest or trial. The evidence is clear that appellant did not conceal Nick Mayberry, knowing that an offense had been committed. It is true that before the commission, and apparently in preparation for the commission of the offense, he saw Nick Mayberry concealed above the ceiling, and he gave no alarm. But no offense had then been committed, and such acts would tend to show him either a principal or accomplice in the crime, and would have no tendency to show that he was an accessory as defined by our Code. There is no evidence that he gave Nick Mayberry any aid to assist Nick in avoiding arrest. All the testimony goes to show is that, after the burglary, they fled to Ft. Worth, going together on the same train. There is nothing to show that he gave Nick any assistance whatever. It is true he concealed the crime, and, if concealment could be considered as giving aid, yet it has been held in Noftsinger v. State, 7 Tex. App. 301, and other cases, that concealment of knowledge that a crime is to he committed does not make a party an accessory before or after the fact; and mere failure to inform on a person he knows to have committed a crime will not constitute one an accessory. As said by this court in numerous cases, a person can never become an accessory until there has been a crime committed, and the accessory then becomes criminally connected with the principal and not the offense by reason of the fact that he is assisting the principal in some of the methods specified in the statute. Schackey v. State, 41 Tex. Cr. R. 255, 53 S. W. 877; Figaroa v. State, 58 Tex. Cr. R. 611, 127 S. W. 193. The aid given must be personal aid to the party who committed the crime. 1-Ie does not become an accessory by reason of any connection with the crime itself. The evidence, and all the evidence, would have a tendency to show that appellant was connected with the crime, and there is no evidence tending to show that he gave Nick Mayberry any aid after the crime was committed. The facts do not support a finding that appellant was an accessory to a crime committed by Nick Mayberry, but all that the evidence would suggest is, that he was a party to the crime when committed. The evidence being wholly insufficient to support a finding that appellant was an accessory to the crime, as accessory is defined by our Code, the case must be reversed and remanded.

Many states have by statute abolished the distinction between accomplice, accessory, and principal, and so drawn their statutes as to define as principals in an offense all persons known to the common law as principals, accomplices, and accessories, but our state has not done so; and, until it is done, even though the evidence would sustain a conviction of the person on trial as a principal, yet, if the jury find him guilty as an accessory, when there is no evidence to sustain such a finding, the judgment cannot stand. To those who advocate reform in criminal procedure, this would seem to present a field for their activities.

As before said, we do not deem it necessary to discuss the other questions raised, but because there is no evidence which would justify a finding that appellant was an accessory to the crime of burglary committed by Nick Mayberry, as accessory is defined by our Code, the judgment is reversed, and the cause remanded.

DAVIDSON, J., absent.
      <@ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HERNANDEZ v. STATE.
    (No. 3930.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.)
    1. Homicide <&wkey;310 — Assault with an Intent-Instruction .
    Where defendant testified that merely to frighten he shot into the ground before the parties he was charged with assaulting to murder when he saw them following him, the refusal of special charges, presenting the issue that, if he did so fire without intent to kill, he was guilty of no higher offense than aggravated assault, was improper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dee. Dig. &wkey;310.]
    2. Homicide <&wkey;86 — Assault with an Intent — Specific Intent.
    The specific intent to kill is an essential element of the crime of assault to murder, unless the attack is made with such a reckless disregard of human life that the law will impute malice.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 112; Dec. Dig. &wkey;86J
    3. Criminal Law <&wkey;543 — Evidence—Testimony on Former Trial.
    In a prosecution for assault to murder, where the testimony of a witness on examining trial was reduced to writing, on trial, after the witness had gone to Mexico and was beyond the jurisdiction of the court, defendant could reproduce so much of the testimony as showed that the party he was charged with assaulting was armed with a pistol at the time and had secured cartridges from the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dee. Dig. c&wkey; 543.]
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Abundio Hernandez was convicted of assault to murder, and be appeals.
    Reversed, and cause remanded.
    Beasley, Beasley & Daugherty, of Beeville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at two years’ confinement in the state penitentiary.

AVithout reciting the testimony, we will say that the evidence offered in behalf of the state would amply support the verdict ; but we think, under the decisions of this court, the evidence offered in behalf of the defendant raised the issue of aggravated assault, and it should have been submitted in the charge of the court, and on account of the failure and refusal of the court to do so it will necessitate a reversal of the case.

Appellant testified he went to a dance at Espidió Ramirez’s house. After the dance was over, he and others came down stairs into the restaurant; that while in the restaurant Jesus Ramirez put him out of the restaurant for cursing; that he started in the direction of the post office, when Espidió Ramirez and Pedro Torres followed him, and while they were engaged in conversation, he saw Jesus Ramirez and his brother approaching; that he told Espidió to send' the boys back, and he began to back off; that they did not go back, and he pulled his pistol and fired into the ground to frighten them away. To use his language as it appears in the statement of facts:

“I shot in the ground when Espidió and his two sons continued to follow me, as I thought they were going to do me some harm and I wanted to scare them away. I shot twice. I shot in the ground both times; that altogether there were nine shots fired, but the other shots, than the two shots he says he fired, were fired by others from the direction of the post office.”

Thus, according to his testimony, he fired the shots he says he fired to frighten Espidió and his boys away. In an assault to murder case there must be a specific intent to kill, or the shots fired with such a reckless disregard of human life as that the law will impute malice.

Appellant excepted to the court’s charge because of the failure to submit aggravated assault, and asked two special charges presenting the issue that, if appellant fired the shots, he fired to frighten away Ramirez and his two sons, with no intent to kill, he would be guilty of no higher grade of offense than aggravated assault. This issue should have been submitted to the jury for their determination. Thomas v. State, 60 Tex. Cr. R. 86, 131 S. W. 314; Angel v. State, 45 Tex. Cr. R. 137, 74 S. W. 553; Stevens v. State, 38 Tex. Cr. R. 550, 43 S. W. 1005.

Another matter is presented which we think necessary to pass on. Appellant’s contention is that Jesus Ramirez and his brother were approaching him under circumstances that led him to believe his life was in danger. Arturo Chapa was a witness at the examining trial, and his testimony was reduced to writing. On the trial of this ease appellant offered proof that since the examining trial Arturo Chapa had gone to Mexico and was beyond the jurisdiction of the court. Under such circumstances we think he should have been allowed to reproduce so much of the testimony as would have shown that Jesus Ramirez was armed with a pistol on that occasion, and had secured cartridges from the witness Chapa.

The newly discovered testimony need not be discussed, as it will not be newly discovered on another trial.

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent.
      <§=»For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    BULLARD et al. v. NORTON et al.
    (No. 2434.)
    (Supreme Court of Texas.
    Feb. 10, 1916.)
    1.Mechanics’ Liens <§=>315 — 1Contractor’s Bond — Construction—-She contractor as Beneficiary — Lien—Failure to Give Notice.
    Where the bond of a contractor for the building of a church provided that the bond was made for the use and benefit of all persons who might become entitled to liens under the contract and might be sued upon by them as if executed to them, and the condition of the bond was that the contractor should duly and promptly pay all indebtedness that might be incurred by him in carrying out the contract and should complete the same free of all mechanics’ liens, and there was a provision of the contract that a percentage of the contract price should be held by the owners for the purpose of securing faithful performance and to be applied to the liquidation of damages under the contract, and that a release from liens or any rights of liens should be furnished by bond, a subcontractor furnishing and installing plumbing, who failed to give the statutory notice to the builders, whereby he failed to fix a lien against the property, held entitled to recover against the sureties on the bond, since under the language of such bond a person having a right to have a lien became a beneficiary with the legal right to depend on the bond to secure the payment of his debt, whether he actually fixed the lien or not.
    [Ed. Note. — For other cases, see Mechanics” Liens, Cent. Dig. § 658; Dec. Dig. <§=>315.]
    2.Principal and Surety <§=>101 — Contractor’s Bond — Change of Contract — Discharge of Surety.
    Where the contract secured by such bond was changed by the parties by the church paying to the contractor on his importunity the 20 per cent, which was to be retained for 3Ó days for the faithful completion of the work, such subcontractor could not recover against the sureties, though he was within the protection of such bond as a beneficiary, since sureties are bound only by the precise terms of the contract whose performance they secure and any material alteration' in the terms thereof, whether injurious or favorable to them, discharges the sureties.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. <§=>
    3.Principal and Surety <§=>129 — Contractor’s Bond — Change of Contract — Laches.
    That such sureties did not make any inquiries concerning the manner in which the contract was being carried out, and required no statement showing how accounts stood between the principals, was immaterial, since they had the right to rely upon the fact that the contract would be carried out in good faith, and were not obligated to exercise vigilance.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 366-372; Dec. Dig. <§=>129.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by E. L. Norton against E. S. Boze, as principal contractor, George P. Bullard, W. A. Crow, R. C. Johnston, J. W. Harrison, and J. L. Gammon, as sureties on the contractor’s bond, and the First Baptist Church at Abilene, Tex., as builder. Judgment for plaintiff against aJll the defendants, with judgment over in favor of the church against Boze and the sureties. The sureties alone appealed to the Court of Civil Appeals for the Second District, where the judgment was affirmed, and the sureties bring error.
    Judgment of the Court of Civil Appeals and of the trial court reversed as to the sureties.
    Sayles & Sayles, of Abilene, and J. L. Gammon and G. 0. Groce, both of Waxahachie, for plaintiffs in error. Ben L. Cox and Kir-, by & Davidson, all of Abilene, for defendants in error.
   YANTIS, J.

E. S. Boze was the original contractor for the construction of the First Baptist Church at Abilene, Tex., with whose trustees the contract was made. E. L. Norton, defendant in error herein, was a subcontractor under Boze, whose contract with the latter obligated him to furnish all labor and material in the installation of the heating and plumbing in such building according to the plans and specifications thereof, and for which Boze agreed to pay him the sum of $2,500. Norton fully performed his contract, which was with Boze alone, and properly installed the heating and plumbing in said church building about December 1, 1910. Norton claimed that Boze, the contractor, failed and refused to pay him a balance of $900 under said contract. He filed this suit in the district court of Taylor county to recover said- $900. He joined as defendants the sureties on said contractor’s bond, Geo. P. Bullard, W. A. Crow, R. G. Johnston, J. W. Harrison, and J. L. Gammon, plaintiffs in error herein, against whom he also prayed for judgment. He alleged in said suit that he had a materialman’s lien and mechanic’s lien upon the church building and the land upon which it is situated, and prayed for foreclosure of his said lien.

The subcontractor, Norton, alleged that the said sureties for Boze, the original contractor, executed with Boze, and delivered to the defendant church their bond to secure the faithful performance of the contract which had been made between the church and Boze; that said bond contained a provision that it was made for the use and benefit of all persons who may become entitled to liens under said contract between Boze and the church, according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.

Trial was had before the court without a jury, and a judgment was rendered in favor of Norton, defendant in error, who was plaintiff in the court below, against all of the other defendants for the sum of $900, with interest thereon from January 3, 1911, at the rate of 6 per cent, per annum, together with all costs of suit. The judgment further provided that in addition to said amount the plaintiff, Norton, should recover from the defendants Boze and Lis bondsmen, Bullard, Crow, Johnston, Harrison, and Gammon, the additional sum of $150 as attorney’s fees. The contract provided for attorney’s fees if incurred in enforcing the collection of indebtedness due by said Boze. The judgment of the eourt further provided that the First Baptist Church of Abilene, Tex., recover over and against the defendants Boze .and his sureties, the plaintiffs in error, the sum of $900, together with interest thereon at 6 per cent, per annum from January 3, 1911, and all costs of suit. The court further rendered judgment foreclosing in favor of plaintiff, Norton, the materialman’s lien and mechanic’s lien upon the premises of said church.

The plaintiffs in error Geo. P. Bullard, W. A. Crow, R. C. Johnston, J. W. Harrison, and J. L. Gammon, appealed from said judgment to the honorable Court of Civil Appeals for the Second District, where the judgment of the district eohrt was affirmed without written opinion. The defendants Boze and First Baptist Church of Abilene did not appeal from the judgment of the district court. The plaintiffs in error presented their petition for writ of error, which was by this court granted on May 10, 1912.

The main questions for decision arise out of the provisions of the contractor’s bond and the alleged breach of the contract itself between Boze, the contractor, and the First Baptist Church, of Abilene, Tex.

The bond was given to secure the faithful performance of the contract between Boze and the church. The plaintiffs in error were sureties for Boze on said bond. It is as' follows :

“Know all men by these presents: That I, E. S. Boze, and the following signers, of the city of Waxahachie, county of Ellis, state of Texas, are held and firmly bound unto trustees of First Baptist Church of Abilene, county and state, as well as to all persons who may become entitled to liens under the contract hereinbefore mentioned in the sum of ten thousand six hundred eighty-seven and B°/ioo dollars, lawful money of the United States of America, to be paid to the said trustees of the First Baptist Church of Alibene, and to said parties who may be entitled to liens, their executors, administrators or assigns, for which payment, well and truly to bo made, we bind ourselves, one and each of our heirs, executors and administrators, jointly and severally firmly by these presents.
“Sealed with our seal; dated this 20th day of October, 1909.
“The condition of this obligation is such that if the above bounden E. S. Boze, his executors, administrators or assigns, shall in all things stand to and abide by, and well and truly keep and perform ,the covenants, conditions and agreements in above-mentioned contract, entered into by and between the said E. S. Boze, of Waxahachie, Texas, and the said trustees of the First Baptist Church of Abilene, dated on the 20th day of October, 1909, for the construction of the work or works on the lot mentioned in the foregoing contract, and shall and duly and promptly pay and discharge all indebtedness that may be incurred by the said contractor in carrying out the said contract, and complete the same free of all mechanic’s liens and shall truly keep and perform the covenants, conditions and agreements in said contract and in the within instrument contained, on his part to be kept and performed, at the time and in the manner and form therein specified, as well as all costs, including attorney’s fees, in enforcing the payment and collection of any and all indebtedness incurred by said E. S. Boze, in carrying out the said contract, then the above obligation shall be void; else to remain in full force and virtue.
“The bond is made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them in proper person.
“In testimony whereof, witfiess the hands and seals of the said E. S. Boze, and said bondsmen hereto afiixed, the day and year above written.”

It will be observed that Norton, the defendant in error, is not a party to said bond. Neither was he a party to the original contract between Boze and the church. The theory of Norton’s suit was that he was a beneficiary under said bond, with the right to sue thereon. He was a subcontractor under Boze, employed by Boze to install the heating and plumbing in the church building, and was to be paid by Boze $2,500. The latter having failed to pay him all of the $2,500, he seeks recovery from the sureties for Boze the balance due, relying upon that provision in the bond which provides as follows:

“This bond is made fo* the use and benefit of all persons who may become entitled to liens under the said contract according to the provisions of law in such cases made and provided, and may be sued upon by them as if executed to them in proper person.”

The undisputed evidence shows, and there is no contention to the contrary, that Norton did not serve the First Baptist Church with written notice of his claim against Boze, as required by statute. In default of such written notice he is not entitled to enforce a lien against the First Baptist Church. Berry v. McAdams, 93 Tex. 435, 55 S. W. 1112; Johnson v. Amarillo Improvement Co., 88 Tex. 511, 31 S. W. 503; Horan v. Frank, 51 Tex. 404; Fullenwider v. Longmoor, 73 Tex. 480, 11 S. W. 500. But it is contended by him that the provision of said bond last quoted authorizes a recovery in his favor against the plaintiffs in error as sureties on said bond, because he had become entitled to fix a lien on said building whether or not he complied with the statute referred to, which requires written notice to be given. It was his contention that article 16, section 37, of the Constitution created a lien in his favor independent of the provisions of the statute referred to. Said constitutional provision is as follows;

“Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

The contention is that this constitutional provision created a lien against the church property to which the appellee became entitled, whether or not he gave the written notice to the church required by statute.

On the other hand it is contended by the plaintiffs in error that the constitutional lien did not attach and the appellee did notl actually become entitled to the lien because he did not give written notice to the church in compliance with the statute; that it was necessary, in order to bring him within the beneficial provisions of said bond, to actually' fix said lien, and that this could only be done by giving said written notice; that his failure to do so left him without a lien, and that, therefore, he did not become entitled to a lien, and hence could not recover.

The particular provision of said bond last quoted, disconnected from the other provisions of the bond, and disconnected from the provisions of the contract, whose faithful performance the bond was given to secure, is somewhat ambiguous in meaning. It is not entirely clear from that provision alone what the intention of the parties to the contract was. Standing alone if is probably subject to either construction contended for by the respective parties to the suit. But the entire bond should be considered in determining the intent of the parties, for by knowing the intent of the parties t^e apparent ambiguity disappears. It will be observed that preceding the last-quoted paragraph of said bond, it is provided that the condition of the obligation is such that if Boze shall perform the covenants, conditions, and agreements in the contract (meaning the contract between Boze and the Baptist Church) for the construction of the building, “and shall and duly and promptly pay and discharge all indebtedness that may be incurred by the said contractor in carrying out the said contract and complete the same free of all mechanic’s liens,” then the said obligation shall be void; else to remain in full force and virtue. We construe this to mean that the bond undertakes to secure the payment and discharge of all indebtedness incurred by the contractor in carrying out the contract whether in fact any lien should actually attach to the church property, and this provision, when read in connection with the portion of said bond that is made for the use and benefit of all persons who may become entitled to liens under the said contract, clearly indicates that the bond was given to secure all of the indebtedness incurred by the contractor in the construction of said building, even though he had, not done the things necessary to give actual effect to fastening the lien. We think that under the bond the sureties became liable for all the debts incurred by the contractor in the construction of the building. This view harmonizes with the construction of the ambiguous section, herein placed upon it; that is, that it was not intended! by said section that a lien should actually attach in order for it to be operative, but it was only intended that the person seeking to invoke its benefits should be such a person as had a right to fix a lien. This view is strengthened also by one of the provisions in the contract between Boze and the church. It is as follows:

“It is agreed by the parties that 20 per cent, of the contract price shall be held by the owners as security for the faithful completion of the work, and may be applied under the direction of the superintendent in the liquidation of any damages under this contract; also furnishing the owners a release from any liens or rights of liens, by bond, herewith annexed, within ten days from date” (meaning October 20, 1009, the date of the contract).

The plain and unmistakable meaning of the latter portion of said contract quoted is, that a bond should be given by Boze which would dispense with the liens or rights of liens; that a bond should be given to the church of such a nature that all macerialmen and subcontractors might look to it as their security instead of depending upon liens. It is only referred to in ascertaining the intent of the parties, as to whether it was in contemplation that the lien should actually attach before liability would be created in favor of materialmen. This bond, which was to be made and annexed in ten days from execution of the contract, was intended to be a substitute for all liens and rights of liens which, for some reason not essential to know or understand, appeared not desired by the church to be fixed upon their property. This view harmonizes with the construction placed by us upon that portion of the bond which provides that the bond is made for all persons who may become entitled to liens under the said contract. We think it assists in interpreting the meaning of this otherwise ambiguous language. It makes it clearly and plainly mean that the bond was made for the benefit of all persons who had a right to fix a lien, whether or not they did the things necessary to fix and enforce the lien. Undoubtedly the intention of the parties to the contract, and the principal and sureties upon the bond, was for Norton to look to the bond instead of to liens. This is plain. We hold that Norton belonged to a class which was entitled to fix and enforce a lien, and that he became a beneficiary under said bond, with the legal right to depend upon it to secure the payment of his debt, if he elected so to do, in lieu of a lien which he was entitled to secure on the church property.

Notwithstanding Norton’s legal right to look entirely to the bond for his security, a serious question is presented by one of plaintiffs in error’s assignments, which charges that the sureties on said bond were released therefrom by the conduct of the principals to the original builder’s contract. It is charged that the original contractor, Boze, and the First Baptist Ohurch, by agreement, changed the terms of the original contract in material respects without the knowledge and consent of the sureties. In such a case the subcontractor would not be entitled to recover against the sureties, who would be thereby released from liability on the bond.

It was provided in the building contract between Boze and the church that Boze should receive $42,790 for the erection of tlie church; that he should he paid 80 per cent, of the estimated value of the work as it progressed, at intervals of 2 weeks, subject to the certificates of the architects or authorized superintendent ; that the remainder should be paid on satisfactory completion and acceptance of the entire work after the expiration of 80 days.

The contract further provided that 20 per cent, of the contract price should be held by the owners of the church as security for the faithful completion of the work. It is claimed that the church and Boze altered the terms of said contract in that they agreed to, and did in fact disregard this provision in the contract.

The findings of fact by the district court substantiate this contention. The sixteenth finding of fact by the trial court is as follows:

“That the church failed to retain 20 per cent, of the contract price of the work done by Boze, as under the contract it should have done, for 30 days, and failed to retain 10 per cent, thereof as required by law.”

The evidence abundantly supports this finding. In fact it appears to be undisputed. The evidence further shows that Boze applied to the trustees of the church for an advancement to him of the 20 per cent, named in the contract. Boze testified:

“I went to the building committee and told them that I was getting behind with my accounts and owed the bank some, and some other parties were pressing for money, and I insisted that the building committee allow me a little more than the contract price.”

There is no testimony what the building committee said in reply, but the fact that they did comply with the request by advancing all of the 20 per cent, conclusively shows their assent to the proposition made by Boze. This amounted to an agreement between them to disregard the 20 per cent, provision in the contract.

The trial court’s twenty-first finding of fact is as follows:

“The sureties of Boze did not require him to furnish them any statement, and had no knowledge of the application of the checks as drawn on the Citizens’ National Bank in favor of Norton by Boze, and the payment of the balance due Norton on the Cisco Academy job, nor did they have any knowledge or notice of the advance of the church to Boze of more than 80 per cent, of the contract price of work being done. The sureties made no inquiries concerning these matters as the work progressed.”

It is well settled that sureties are only bound by the precise terms of the contract whose performance they secure, and that any material alterations in the terms of the contract without their consent will release them from liability. This is true whether the change in the contract is injurious to them or favorable to them. There is no reason why this familiar rule should not have application to a builder’s contract and bond under the same principles as apply to other characters of surety contracts. One of the most important provisions in the contract was that the owners of the church would retain 20 per cent, of the total cost of the building 30 days after its completion. Reduced to figures the contract bound the owners to retain $8,058 for 30 days after the completion of the contract. The owners and Boze, the contractor, agreed that said provision in the contract would be disregarded, and so it was disregarded, and nothing was held by the owners, but the entire contract was paid for by the church at its completion. At least a portion of this money that should have been retained by the church was paid by Boze for work which he owed Norton on a Cisco contract, which was in no way connected with the church contract. This might with propriety be contended to be one of the direct results of the waiver by the church and Boze of the 20 per cent, provision in the contract, for the evidence directly shows that at least a portion of this advance payment was used by Boze to pay Norton on the Cisco work. This shows direct injury to the sureties. However that may be, the sureties had a direct interest in that provision of the contract which provided that $8,558 should be held by the owners until after the completion of the building. It had a direct bearing upon their risk as sureties. So far as the record shows, this provision in the contract was the only security which they had. It was stricken out without their knowledge ocr consent, and whether this change in the contract resulted in injury to them or not, it resulted in materially changing the terms of the contract upon which they were bound as sureties. That which remained after the change constituted a new contract. Upon this new contract they were not obligated, and cannot be bound. The old contract was annulled by the change. To the new contract they had not assented, and by it they were not bound. Ryan v. Morton, 65 Tex. 258; Smith v. Montgomery, 3 Tex. 203; McKnight v. Lange Mfg. Co. (Civ. App.) 155 S. W. 977; United States v. Freel (C. C.) 92 Fed. 301; Evans v. Graden, 125 Mo. 72, 28 S. W. 439; Village of Chester v. Leonard, 68 Conn. 495, 37 Atl. 399.

It is unimportant in a decision of this question that the sureties of Boze did not require him to furnish them any statement, and that they made no inquiries concerning the advancement by the church to Boze of more than 80 per cent, of the contract price of the work being done, as noted in the trial court’s conclusions of fact. No duty rested upon them by law, or by the terms of the contract to make such inquiries. They were not required in law to anticipate that Boze, whose sureties they were, and the church trustees would change the contract. They had a right to reply upon it that the contract would be carried out in good faith, with no necessity for them to keep watch over the conduct of the parties. When the contract was altered, the plaintiffs in error were released as sureties on the bond. The defendant in error ■ Norton was not a party to the original contract between Boze and the church, and in no way a party to the bond, except that he became a beneficiary under the bond, and the sureties became liable to him, only in the event they were liable to the church. For Norton to recover on the bond he must affirm and establish its legality and binding force upon the sureties. He cannot hold the plaintiffs in error on the provisions of the bond that are favorable to him and deny to the plaintiffs in error the right to be bound only by the terms of the contract and bond. I-Ie cannot, for the purpose of recovering against the plaintiffs in error, affirm the provisions of the bond and contract without affirming it in its entirety. He is bound by the provisions of the bond and contract identically as the church was bound. The contract ceasing to be, on account of alterations, binding upon the sureties favorably to the church, it could not be binding on the sureties favorably to Norton. When the sureties were released, they were released from the contract in its entirety, including the provisions under which 'Norton had the right to sue as a beneficiary. The contract ceased to be binding under the undisputed evidence, either favorably to the church or to Norton. The sureties were entirely absolved from the contract, and Norton’s recovery against them cannot be upheld. This holding renders it unnecessary to pass upon the other questions presented.

In accordance with these views, we hold that the judgment of the Court of Civil Appeals and the judgment of the district court should be reversed, and the cause here rendered in favor of the plaintiffs in error, Geo. P. Bullard, W. A. Crow, R. C. Johnston, J. W. Harrison, and J. L. Gammon, against the defendant in error E. L. Norton, and against the First Baptist Church of Abilene, Tex., as to the judgment which was rendered over against the plaintiffs in error in its favor.

The First Baptist Church of Abilene, Tex., not having appealed from the judgment of the district court, and not having asked here for affirmative relief from the lien which was declared against it in the district court in favor of B. L. Norton, it cannot be granted relief from the lien established by the judgment of the district court in favor of Norton, but the ju&gment of said court must be in all things affirmed in favor of E. L. Norton against E. S. Boze and said church. Likewise it must be affirmed as to the judgment in favor of the church over against Boze. The plaintiffs in error should recover from Norton and the First Baptist Church of Abilene all costs incurred by them in this court and in the Court of Civil Appeals and the district court. The defendant in error Norton should recover from the defendants Boze and the First Baptist Church of Abilene, Tex., all costs incurred by him in the district court. It is accordingly so ordered.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J.

text:
    KNIGHTS OF THE MACCABEES OF THE WORLD v. PARSONS.
    (No. 2809.)
    (Supreme Court of Texas.
    Feb. 2, 1916.)
    Appeal and Error <@=31108 — Discovery after Judgment that Assured is Living— Grant oe Writ op Error — Remand for Dismissal.
    In a suit by the beneficiary on a life policy, where, after rendition of judgment for her in the district court and Court of Civil Appeals, it appears that the insured has been discovered to be alive, plaintiff’s and defendant’s motion in the Supreme Court asking that the petition for writ of error be granted, the judgments of the district court and Court of Civil Appeals reversed, the cause remanded to the district court, and that it be dismissed at the plaintiff’s cost, • will be granted.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4410; Dec. Dig. <©=>1108.]
    Error to Court of Civil Appeals for First Supreme Judicial District.
    Suit by Mrs. Lena Parsons against the Knights of the Maccabees of the World. On motions by defendant and plaintiff that the petition for writ of error be granted, the judgments of the district court and Court of Civil Appeals (179 S. W. 78) for plaintiff reversed, and the .cause remanded to the district court, with instructions that it be dismissed at plaintiff’s cost.
    Petition for writ granted.
    Chas. B. Braun, of Waco, for plaintiff in error. Blount & Strong, of Nacogdoches, and Geo. S. King and Kahn & Williams, all' of Houston, for defendant in error.
   PHILLIPS, C. J.

This was a suit by Mrs. Lena Parsons on a policy of life insurance issued to George Frank Parsons, in which Mrs. Parsons was the beneficiary. In the trial court a judgment was rendered in favor of the plaintiff, afterwards affirmed in the Court of Civil Appeals. The principal issue upon the trial was whether or not George Frank Parsons was, in fact, dead. It appears that since the affirmance of the judgment in the Court of Civil Appeals he has been discovered to be alive, revealing that no judgment on the policy ought to have been rendered. Under this condition both the plaintiff and defendant have filed motions in this court asking that the petition for writ of error be granted and the judgments of the district court and Court of Civil Appeals be reversed, and the cause remanded to the district court, with instructions that it be dismissed at the plaintiff’s cost.

We think this is the proper disposition to be made of the case. The petition for writ of error is accordingly granted. The judgments of the Court of Civil Appeals and dis-triet court are reversed, and the cause remanded to the district court to be there dismissed at the plaintiff's cost.
      ®=3Por other cases see same topic ami KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BRYANT et al. v. CONTINENTAL CASUALTY CO.
    (No. 2427.)
    (Supreme Court of Texas.
    Feb. 14, 1916.)
    1. Insurance <@=455 — Accident Insurance —Sunstroke—‘ ‘Disease’ ’ — ‘ ‘Personae Injury. ”
    Where an accident policy insured against death or disability through external, violent, and purely accidental means, provided that, if sunstroke should result independently of all other causes in the death of insured, the insurer would pay the indemnity, a sunstroke, while it may by medical experts be deemed a disease, is to be deemed a form of personal injury; it being considered such in common parlance, and, if a disease, not being an appropriate matter for accident insurance.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1166-1169; Dec. Dig. <@=3455.
    For other definitions, see Words and Phrases, First and Second Series, Disease; Personal Injury.]
    2. Insurance <@=455 — Accident Insurance —Sunstroke—Accidental ‘ ‘Means.’ ’
    In such ease, the term “means,” in the phrase “due to accidental means,” is used in the sense of “cause,” and the insurer is liable for the death of the insured, caused by exposure to sun and humid atmosphere on a hot day, while pursuing his usual vocation in an ordinary way.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1166-1169; Dec. Dig. <@=455.
    For other definitions, see Words and Phrases, First and Second Series, Means.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by Mrs. Amelia Bryant and another against the Continental Casualty Company. A judgment for defendant being affirmed on appeal to the Court of Civil Appeals (145 S. W. 636), plaintiffs bring error.
    Judgments of Court of Civil Appeals and district court reversed, with directions to enter judgment for plaintiffs.
    B. F. Louis, of Houston, and John Charles Harris, of Galveston, for plaintiffs in error. Gill, Jones & Tyler and H. L. Stone, Jr., all of Houston, for defendant in error.
   PHILLIPS, C. J.

Mrs. Amelia Bryant, joined by her husband, brought this action to recover upon an accident insurance policy issued by the defendant in error to Calvin R. Perry, her brother, in the sum of $2,000, in which she was named as beneficiary. The case was tried without a jury, resulting in a judgment for-the company, affirmed by the Court of Civil Appeals. 145 S. W. 636.

Calvin R. Perry suffered a sunstroke on an unusually warm afternoon in the month of August, while walking upon the streets of Houston in the ordinary course of his occupation as a collector of accounts, from which he died on the following day. The issue presented is whether there is any liability under the policy for a death by sunstroke occurring under such circumstances.

The general insuring clause of the policy reads:

If the insured, while this policy is in force, shall receive personal bodily injury (suicide, sane or insane, not included) which is effected directly and independently of all other causes through external, violent and purely accidental means, and which causes at once and continuously after the accident total inability to engage in any and every labor or occupation, the Company will pay indemnity for loss of life, limb, limbs, sight or time resulting therefrom.

Part VI of the policy, under the title, “Special Accident Indemnities,” contains the following provision:

If sunstroke, freezing, or hydrophobia, due in either case to external, violent and accidental means, shall result, independently of all other causes, in the death of the insured within 90 days from date of exposure or infection, the Company will pay said principal sum as indemnity for loss of life.

The defense of the Casualty Company is that sunstroke is a disease, and therefore not an accidental happening; that as a disease it was named as a risk of the policy; and that no indemnity is due for death resulting from it, under the policy, unless the preceding exposure be itself the consequence of an accident. This is the construction, in other words, which the Company insists should be given the term, “due to external, violent, and accidental means,” as used in the policy in relation to sunstroke; and such was the view of the case taken by the District Court and the Court of Civil Appeals, the Company being held exempt from liability because Perry voluntarily went into the sun. As illustrative of the Casualty Company’s theory, we take the following instances from its brief as presenting, in a general way, the state of circumstances necessary to exist, under its contention, for the creation of any liability under a policy of this kind for the suffering of a sunstroke by an assured: The happening of a shipwreck or train wreck, as a consequence of which he is exposed to the sun, with a sunstroke resulting; the breaking down of a vehicle in which he might be riding, causing similar exposure; or being thrown from a horse, and thereby compelled to walE' some distance on a hot day, etc.

This position, it will be observed, requires that the prior accident be alone regarded as the means by which the sunstroke is effected. If sunstroke is a disease and therefore caused, never accidentally, but naturally, by excessive heat, it follows from the argument that the actual casualty, in such a case, is' not the sunstroke, but the preceding accidental occurrence. Under this theory all idea of there being any element of accident in the sunstroke itself, or in the operation and effect of the abnormal heat as a direct cause of the stroke, is repudiated; and all that is unforeseen, unexpected, and unusual in the general event is related to merely the prior accident. It declines to consider ordinary sunstroke as having in any sense the quality of an immediate and fortuitous injury, and treats it merely as a result, and more than that, a result not directly incurred in or produced ■by an accident, it will be noted, but as only influenced by a condition or situation which an accident creates.

One trouble with this position is that it assumes sunstroke was insured against in the policy merely as a disease, when a vital question in the case is whether such was the purpose of the policy. Another is that it denies any standing as “a means” to that which is essentially the cause, or in any event a very important part of the cause, of every sunstroke, namely, the operation of the rays of the sun if it be the usual form of sunstroke, or the operation of artificial heat if it be induced, as it may be, by other than solar heat (Continental Casualty Company v. Johnson, 74 Kan. 129, 85 Pac. 545, 6 L. R. A. [N. S.] 609, 118 Am. St. Rep. 308, 10 Ann. Cas. 861), and is alone that which, in common understanding and in fact, makes the cause of a sunstroke “external and violent.” .

There have been certain decisions which announce that sunstroke is a disease. Among them are Sinclair v. Maritime Passengers Assurance Company (England, 1861) 3 Ellis & Ellis, 478, and Dozier v. Eidelity & Casualty Company of New York (C. C.) 46 Fed. 446, 13 L. R. A. 114. But whatever it may be, technically, it is not regarded as a disease in the popular mind. In the common understanding it is accounted a kind of violent personal injury, from the very idea of sudden and external force carried by the word. If classed by medical authorities as, technically, a disease, — as to which it is not improbable that there is a conflict of expert view, — to none but an expert medical mind would the provisions of this policy have carried the significance that it was insured against as a disease. To men in general, such as those with whom a company of this kind deals and to whom its policies are issued, whether educated or ignorant, the use of the term in any character of contract, and particularly, we think, in an insurance contract, not generally insuring against death by disease, but against death from accidental injury, would have denoted merely what sunstroke is commonly understood to mean — heat prostration, frequently a casualty, a species of bodily injury, distinct in its kind and individual in its cause, and of known and not unusual occurrence. With the term having, as it does, this recognized popular meaning distinctly different from any technical significance it may possess, the proposition that the latter must prevail in the construction of the policy is not to be allowed. But let the question be further tested.

The best method for arriving at the accurate construction of a contract is for a court to simply put itself in the place of the parties, and, having particular regard to the subject-matter of the agreement, endeavor to ascertain their intention in their use of the terms employed. Let that method be applied here. What is the result? That Perry, the assured, intended, under an accident policy, to insure against sunstroke, as, technically, a disease, and, in addition to that, as a disease which could be accidentally effected only in some such involved, remote, and improbable way as the Casualty Company here contends it is possible for a sunstroke to be accidentally caused, or that he understood such to be the effect of the policy, is hardly to be believed. Nor, in our opinion, is any such intention to be attributed to the Casualty Company in the making of the contract, if it is to be credited with a purpose, as it ought to be, of writing an accident insurance contract, as distinguished from a life insurance policy, and providing accident insurance against death occasioned by an accidental sunstroke under a policy agreement having in fact that virtue. This is made manifest, we think, by simply considering the general principles of personal accident insurance and the character of risk it is supposed and intended to cover, with which the present policy is presumably consistent.

The theory of such insurance, under the ordinary accident insurance contract, necessarily involves the element of bodily injury. That is primarily the kind of risk it contemplates and for which its indemnity is provided. This is manifest in the general insuring clause of the present policy, one common, in its general terms, to all ordinary accident policies. It runs:

“If the insured, while this policy is in force, shall receive personal bodily injury, * * * which is effected directly and independently of all other causes through external, violent and purely accidental means, * * * the Company will pay indemnity,” etc.

It is not life insurance, but casualty insurance ; and under the usual form of policy the nature of the casualty which gives rise to the liability of the insurer is that which consists in some character of bodily injury to the assured, either external or internal, accidentally caused, though the resulting effect be the development of a form of disease. There have been many adjudications on accident policies where the result of the different particular occurrences was the suffering by the assured of this or that .form of disease, such as tetanus, or blood poisoning, and in some instances the more usual kinds of disease, as pneumonia, peritonitis, rheumatism, or fever; but the liability of the insurer has been upheld in all such cases, arising under the ordinary form of policy, because of the finding that the assured had accidentally sustained some character of antecedent bodily injury, of which the disease was but the proximate result.

If sunstroke is a disease, as the Casualty Company here contends, that is, a kind of brain fever, and was so dealt with in the present policy, its contraction, as we may in this connection call it, from exposure to excessive heat, its accepted inducing cause, must be regarded as proceeding from a purely natural cause; just as tbe contraction of malaria from subjection to tbe conditions wbieb produce that form of disease is recognized as due to a natural cause. Regarded as a disease, and as thus naturally produced, there is no element of bodily injury about it, any more so tban there is in tbe ordinary disease of malaria. Neither, in this view, would sunstroke be any more tbe proper subject of risk in an accident policy than would malaria; nor would tbe proper basis of liability under such a policy be any more furnished by death resulting from it tban by death from malaria.

Tbe history of accident insurance, as found in tbe many judicial decisions upon tbe subject, reveals tbe constant denial by accident companies of any liability, under the ordinary form of policy, for disease, though accidentally effected, unless proximately caused by a bodily injury, and their constant maintenance of the proposition that any other theory of their liability is opposed to the general scheme of accident insurance. This position, generally, has been sustained by tbe courts; close questions having at times arisen as to whether the given physical condition was to be properly deemed a bodily injury. Not only,, therefore, is insurance against disease, as such, not within the general .scope of accident insurance; but equally disease effected by accident is not within its theory, as its interpretation by accident companies is disclosed in tbe decisions, unless there is distinctly present the element of bodily injury.

Under the contention of the Casualty Company, the sunstroke provision of its policy is a plain contradiction of this essential principle of the character of insurance it is intended to provide. It is a repudiation of the general insuring clause of the policy, as expressing tbe kind of risk which the policy covers, the risk of “personal bodily injury * * * effected by external, violent and accidental means.” Accepting tbe Company’s construction of the policy, it is in the position, in the first place, of making a disease, rather than a bodily injury, tbe subject of an accident risk, and further, a disease, the accidental causing of which in the way it says is necessary in order for it to be accidentally effected, would present no element whatever of bodily injury; with the accident, in truth, not directly causing the disease, but, at most, only producing a condition favorable for its being incurred.

Hydrophobia is a disease. But its common cause is the bite of an animal, a bodily injury ; and its inclusion in the policy is therefore to be logically accounted for. It is generally thought of as a kind of casualty. But why was sunstroke here made the subject of accident insurance, in which the nature of the risk is some form of bodily injury, if in the construction of the policy it is to be considered as a disease, and is hence without apy element of bodily injury in its cause? It was in our opinion expressly designated as a risk, not as a disease, but for the purpose of avoiding the effect of those decisions which have held it to be a disease — in adoption of its popular conception as a species of personal injury, capable of accidental occurrence, and therefore properly a subject of this kind of insurance.

In the early Sinclair Case, supra, decided in England in 1861, it was held that no liability arose for an ordinary sunstroke under an accident insurance policy providing for indemnity in the event of “personal injury from, or by reason or in consequence of, any accident, etc.” In the decision sunstroke was treated as a disease. So considered, it has no quality of personal injury about it, as already stated; and, under that theory, the determination that there was no liability under the policy was sound. This holding was followed in the Dozier Case, where the policy was in the same general terms, — providing insurance against “bodily injuries, sustained through external, violent and accidental means,” as does the general clause of the present policy. In neither case did the policy designate sunstroke as a risk. It is to be assumed that the present policy was drawn in the light of that holding. That the purpose was to make sunstroke a part of the contract risk, as a distinct feature of the policy, is evident. We regard it as equally manifest that the purpose also was to so make it a feature of the risk in such a way as to avoid the effect of the holding in the Sinclair Case, and others like it, — under which, if treated as a disease, it would not fall within the general risk of the policy,. — and as would be, at the same time, consistent with such risk as expressed in the general insuring clause, and in harmony with the theory of such insurance. This could only be done by in the policy recognizing it to be what in the common understanding it is considered, — a form of personal injury, and, when suffered under certain circumstances, a casualty. Such, we hold, is the meaning and force of the sunstroke provision of the policy.

Considered as a form of bodily injury, the question as to when sunstroke is to be properly deemed 'as accidentally • effected assumes a different character from that presented if it is regarded merely as a disease. The difficulty of introducing an accidental cause into its occurrence, treated as a disease, is apparent from the illustrations made in the Company’s brief as to the state of circumstances necessary, in that view, to its accidental happening. But, treated as an injury, it is clear that it may be accidentally effected in ways much less involved and remote. When, therefore, is the suffering of sunstroke to be regarded as due to “accidental means,” in the sense in which the latter term, in its relation to sunstroke, is used in the policy?

The word “means” is employed in the policy in the sense of “cause”; the phrase, “due to accidental means,” is one of qualification; and the purpose of its use in the ordinary accident policy is to limit the liability of the insurer to injuries effected by an accidental cause, as distinguished from those which are merely accidental in their result. It is generally recognized, as it should be, that where a map undertakes to do a certain thing by a particular means, and the result of his act is such as follows, in not an unusual or unexpected way, from the means voluntarily used, it cannot be said to be due to an accidental cause, though, in the sense that it was not intended, an accidental result is the consequence. In the numerous adjudicated cases upon the subject, therefore, it is determined that where by the terms of the contract the risk insured against is an injury effected by “accidental means,” the element of accident must consist in that which produces the injury, rather than in the mere fact that an injury occurs. The rule itself is well established. It is its application to the varying kinds of accidental injuries which is sometimes involved in difficulty, occasioning, in some instances, divergent opinions by the courts.

The inquiry at once arises as to when the cause of an injury is to be considered as accidental; that is, what is the proper construction of the term, “accidental means,” as used in insurance policies of this nature? The best definition of the term in the books is that given by the United States Supreme Court in the leading case of Mutual Accident Association v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, S3 L. Ed. 60. There the assured, Dr. Barry, with two other physicians, had visited a patient living in a house behind a drug store. They came out of the house on a platform which was between four and five feet from the ground. By getting down from the platform it was but a short distance to the drug store to which they desired to go. They jumped from the platform to the ground. The other two, who jumped first, alighted safely; but the evidence was that Dr. Barry, though alighting upon his feet, jumped heavily, the sound, as he struck the ground, being as if he had come down solidly on his heels, like an inert body. Shortly afterwards he appeared ill and vomited, and died nine days later, having retained nothing on his stomach and having passed nothing but blood and mucus. There was evidence that the cause of Ms death ivas a stricture of the duodenum, due, according to the plaintiffs contention, to the jump. The accident policy on which the suit was brought limited liability for death from bodily injuries, as does the policy here, to those effected through external, violent and accidental means. The Supreme Court, through Mr. Justice Blatchford, expressed its approval of the trial court’s instruction to the jury under this provision of the policy in the following language, which embodies the substance of the instruction and has since served as an accepted definition of the term, “accidental means”:

“The court properly instructed them that the jumping oil the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected, in the act of jumping, from the time the deceased left the platform until he alighted on the ground: that the term ‘accidental’ was used in the policy in its ordinary^ popular sense, as meaning ‘happening by chance; unexpectedly taking place, not according to the usual course of things, or not as expected’; that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means ; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs, which produces the injury, then the injury has resulted through accidental means.”

In affirming the judgment for the plaintiff, the court also said:

“It is further urged that there was no evidence to support the verdict because no accident was shown. We do not concur in this view. The two companions of the deceased jumped from the same platform, at the same time and place, and alighted safely. It must be presumed, not only that the deceased intended to alight safely, but thought that he would. The jury were, on all the evidence, at liberty to say that it was an accident that he did not.”

Upon the admitted facts, was the sunstroke suffered by Perry, the assured, under this clearly stated general rule, an accident? It was, undoubtedly. He was at the time walking the streets in the ordinary way, unconscious of any danger from the heat of the sun, as is to be plainly inferred from the stated facts, with apparently no apprehension of injury from that source, and a sunstroke suddenly befell him. True, his exposure to the sun was voluntary. But that does not conclude the question. Though the exposure be regarded as “the means” of his injury, — to our minds an erroneous view,— and as purely voluntary, it cannot be said that the result was one following “in a not unusual or unexpected way” from such means. On the contrary, in the course of the exposure, the act immediately preceding the injury, the sudden prostration occurred, not the usual happening under such circumstances in common experience, but having forcibly in its event the elements of “something unforeseen, unexpected,” and out of the ordinary course.

In the Barry Case, the jump of the assured, which constituted the act immediately preceding his injury and occasioned it, was likewise voluntary and intentional. It was “the means” of the injury. But the court repudiated the proposition that, because of its having been voluntary, the resulting injury could not be regarded as due to an accident. It was held to have been an accident, notwithstanding the voluntary nature of the act which caused it, for the reason that it was an unforeseen result, following, not naturally from the act, but in an unusual and unexpected way.

The question might well be rested at this platce, though the exposure to which the assured subjected himself be considered as “the means” of his injury. It is a mistake, however, to indulge that assumption. Exposure to the heat is the cause of a sunstroke only in the sense that exposure to any kind of external force furnishes the occasion of an injury as the result of its operation. In cases arising under accident insurance policies, where possible negligence on the part of the assured does not affect the question of liability, the efficient cause of a sunstroke, the vis major which inflicts the injury, is necessarily the excessive heat, and it must therefore be deemed “the means” of the injury. If it be solar heat, it is not caused, and, when operating naturally, is not controlled, by human agency; and under such circumstances it is impossible to associate with it the idea of its “voluntary employment,” or to regard as not an accident an injury from it when suffered as here shown, in the sense that under certain conditions, as declared in the rule above noted, an injury resulting from a means voluntarily employed will not be so deemed.

A sunstroke caused by the sun’s rays, happening under the circumstances found in this case, is in our opinion an accident; as clearly so as is a lightning stroke. Hutchcraft’s Executor v. Travelers’ Insurance Company, 87 Ky. 800, 8 S. W. 570, 10 Ky. Law Rep. 260, 12 Am. St. Rep. 484. It befell the assured without any human agency; and in the sudden, unexpected and unusual way in which he was affected by the heat as its cause, it had all of the elements of an accident in its occurrence and result.

It was urged in the argument that if the sunstroke which brought about the death of Perry is held to have been an accident, it would amount to a holding that every sunstroke suffered is an accident; and, as the consequence, the term, “due to accidental means,” is denied any force as an express limitation upon the insurer’s liability for sunstroke. This, however, does not follow from the decision, as is disclosed when once it is recognized, as is held in Continental Casualty Company v. Johnson, already noted (74 Kan. 129, 85 Pac. 545, 6 L. R. A. [N. S.] 609, 118 Am. St. Rep. 808, 10 Ann. Cas. 851), that sunstroke may be caused by artificial, as well as solar, heat, and the term has that meaning in an accident policy, in the absence of a contrary qualification. There is no decision, as we are aware, opposed to this holding.

In the Johnson Case the policy appears to have been one also issued, as is to be inferred from the name of the company, by the present defendant in error. It contained a provision as follows:

“The loss of * * * time, as above provided, due solely to * * * sunstroke or freezing due solely to necessary exposure while engaged in his occupation, shall be deemed to be due to external, violent and purely accidental causes and shall entitle the insured to full benefits according to the terms of this policy.”

The assured, Johnson, was a flue-welder, and while engaged in his occupation was overcome by heat from a forge or furnace near which he worked, becoming ill as the result and suffering loss of time; whereupon he brought an action on the policy, claiming that his loss was due to sunstroke. As is stated in the opinion, it was argued in behalf of the defendant company that the language of the provision quoted indicated “a conception of sunstroke as something of sudden and unexpected occurrence, more or less in the nature of an accident, and that this conception is only appropriate to an attack brought on by exposure to the sun’s rays.” It was admitted by the insurer in that case, in other words, both in its policy provision and in the interpretation of it which it invoked, not only that a sunstroke suddenly and unexpectedly suffered from the heat of the sun in the course of a necessary exposure, is to be regarded as an accident; but, furthermore, that only such a sunstroke, so suffered, is to be deemed as “due to accidental means.” The court, in determining the case, overruled the contention that the term “sunstroke,” as found in the policy, denoted only a condition brought about by the heat of the sun, and held that a sunstroke caused by artificial heat was equally within the risk of the policy.

If, as it thus appears, “the means” of a sunstroke may be artificial heat, — something which is produced and may be controlled by human agency, — under the rule above stated, “that if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means,” it follows that sunstroke, effected by such means, may occur under such circumstances as not to constitute it an accident, just as any other form of injury proceeding from a “means” likewise caused by and within the control of human agency máy, under similar circumstances, be suffered and, as determined by the same rule, be not an accident.

The rule, just referred to, is but the statement of a fact of human experience with respect to all artificial agencies and their uses, —the announcement of the general recognition that an injury may result from the particular, voluntary use of such an agency for a given purpose, but not be an accident, because ensuing naturally, and in a usual and reasonably to be expected way, from the means thus employed. The consequences of the use of artificial heat are not to be exempted from its application. Where, because of the particular circumstances, the rule would apply to any other character of injury resulting from a given cause, it would, for the same reason, likewise apply to prostration brought about by artificial heat. While not as probable, from the nature of the injury, as in the case o£ other lands of injury, it is possible, therefore, under this recognized rule, for sunstroke to occur under such circumstances as not to be an accident; and our holding does not exclude that possibility.

There has been no decision of the question presented in this case by a. court of last resort in any jurisdiction. It has been determined by appellate courts in Pennsylvania, Indiana and New York, in three different cases, in addition to the decision of the Court of Civil Appeals in the present case: Semancik v. Continental Casualty Company (by the Pennsylvania Superior Court, 1914) 56 Pa. Super. Ct. 392; Elsey v. Fidelity & Casualty Company of New York (by the Appellate Court of Indiana, 1915) 109 N. E. 413; and Gallagher v. Fidelity & Casualty Company of New York, (by the Appellate Division of the Supreme Court of New York, 1914) 163 App. Div. 556, 148 N. Y. Supp. 1016, now pending in the Court of Appeals of that state. In the Semancik Case, the form of policy was the same as the policy here, and issued by the same company. In the Elsey Case, the general clause of the policy, insuring against “bodily injury sustained through accidental means,” was followed by a provision that, “sunstroke suffered through accidental means should be deemed a bodily in-' jury within the meaning of the policy.” In both cases it was held that sunstroke, caused by the tíéat of the sun and occurring under circumstances like those in the present case, is not to be regarded as an accident. In the Gallagher Case, under a policy in the same terms and issued by the same company as that considered in the Elsey Case, it was determined that such a sunstroke, suffered under like circumstances, is an accident, and the insurer was therefore liable. In the Semancik opinion it was said that the verdict, which was for the plaintiff, “could only be sustained by the determination of the court that sunstroke was purely accidental and not a disease,” which ignored the important fact that sunstroke was insured against in the policy, in our view, not as a disease, but as an injury. That the exposure was voluntary appears to have been a ground of the decision; as well as the construction given the policy, that there was no liability for sunstroke unless occurring in consequence of a preceding accident. In the Elsey Case the question was determined under a rule, announced by the same court in a previous decision, that, “where an injury occurs as the direct result of intentional acts, it is not produced by accidental means,” which we decline to recognize as the true rule. This would practically mean that no injury immediately occurring in the course of an intentional act could be an accident. A large number of injuries, plainly accidents, are suffered in the performance of intentional acts. Whether the immediately preceding act was intentional is a mistaken test of the question. The proper and true test, in, all instances of voluntary action, is that defined in the Barry Case: If in the act which precedes the injury, though an intentional act, something unforeseen, unexpected, and unusual occurs, which produces the injury, it is accidentally caused. If the injury followed in a usual or reasonably to be expected way from the means voluntarily employed, that is, the given voluntary act, it is not a result accidentally effected. •

The rule followed by the Indiana court is substantially that announced by the Supreme Court of Connecticut in Southard v. Assurance Company, 34 Conn. 574, Fed. Cas. No. 13,182, from whose views on the subject the Supreme Court of the United States expressed its dissent in the Barry Case.

We are unwilling to follow the holding in the Semancik and Elsey Cases, and are con-lent to rest the decision upon the grounds we have stated.

The question is an important one, and we have been deeply concerned in its correct decision. It challenges careful thought, and, sensible of its difficulty in certain phases, that we have endeavored to give it. That which is sound upon principle ought to be the law; and, believing that the conclusion reached is thus supported, it is adopted as our decision of the question.

The judgments of the Court of Civil Appeals and the District Court áre accordingly reversed. It is ordered that judgment be entered for the plaintiff in error for the amount of the policy, with the statutory damages and attorneys’ fees of $225, agreed to be reasonable in amount, with legal interest from the date of the judgment of the district court.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W.-43


author: HALL, J.

text:
    BOGART et ux. v. COWBOY STATE BANK & TRUST CO. et al.
    (No. 747.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 30, 1915.
    On Motion for Rehearing, Dec. 4, 1915.
    Further Rehearing Denied Jan. 26, 1916.)
    1. Appeal and Ebkoe <§==>1071 — Findings — IMMATERIAL ISSUE.
    In an action on a note, where a judgment was not rendered upon the original note, but upon the renewal, it was immaterial when the holder acquired the original note if it obtained the renewed note for value without notice before maturity, and the issue as to whether a former holder had indorsed the note more than two months after maturity was immaterial, so that the trial court’s failure to find thereon was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. <&wkey; 1071.]
    2. Trial <&wkey;397 — Requested Findings — Findings Made.
    The refusal to make a requested finding was not error, where the trial court in another finding fully stated the matter requested to be found.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 940-945; Dec. Dig. <&wkey;397.]

      3. Bankruptcy <@=>425— Discharge — Debt not Scheduled.
    Where it did not appear that a bankrupt scheduled a debt, and the creditor had no actual notice of the bankruptcy proceedings, the bankrupt was not discharged from liability on such debt.
    [Ed. Note. — For other cases, see Bankruptcy, Century Dig. § 775; Decennial Dig. <§=> 425.]
    4. Bankruptcy <§=>395 — Decree Setting Aside Homestead — Parties Bound.
    A creditor not a party to the debtor’s bankruptcy proceedings was not bound by the decree of the federal court setting aside to the bankrupt and his wife certain lands as a homestead.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 658; Dee. Dig. <§=>395.]
    5.Bankruptcy <§=>395 — Exempt Property-Jurisdiction.
    Exempt property is never really in the bankruptcy court, nor is the owner divested of his title where he properly urges his claim for exemption, as the bankruptcy court has no jurisdiction of it except to set it aside as exempt property, and as the rights of the lien creditors with reference to it must be determined in the state courts.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. § 058; Dec. Dig. <©=>395.]
    6.Homestead <§=>115 — Trust Deed — Exemption.
    Whether land claimed as a homestead is exempt from the operation of a trust deed must be determined by the conditions existing when the deed was given.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 183, 184, 186-190; Dec. Dig. <§=> 115.]
    7. Homestead <§=>181 — Continuance—Presumption and Burden of Proof.
    When property has been impressed with a homestead character it will be presumed to so continue until its use as such has been discontinued with the intention not to use it as a home, and the burden of proof rests upon the one asserting the abandonment.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. <@=>181.]
    8. Homestead <@=>181 — Abandonment—Evidence.
    Certain and conclusive evidence of abandonment, with no intention to return and claim the exemption, is required before a homestead, once occupied as such, can be subjected to a forced sale.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. <@=>181.]
    9. Homestead <@=>102 — Abandonment — Intention.
    A farm occupied as a homestead does not lose that character when abandoned by the owner partly on account of ill health, with the intention of returning at a later date.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. <@=>162.]
    10. Homestead <@=>168 — “Temporary Renting” — Effect — Constitutional Provisions.
    A leasé of land, including the part which had been used as a homestead, for a term of five years, in connection with the homesteaders’ disposition of their farm 'in another state prior to the execution of a deed of trust on the land in this state, was a temporary renting within Const, art. 16, § 51, providing that any temporary renting of a homestead shall not change its character when no other homestead had been acquired.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 333, 343; Dec. Dig. <@=>168.]
    11.Evidence <@=>589 — Sufficiency—Parties.
    In an action on a note and to foreclose a deed of trust, where the defendants claimed a homestead in part of the land, the trial judge was not bound to believe their statements.
    .[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438; Dec. Dig. <§=>589.]
    On Motion fer Rehearing.
    12. Appeal and Error <§=>1071 — Trial <@=> 395 — Failure to File Findings — Effect.
    The trial court’s failure to file findings and conclusions is not cause for which the courts have reversed judgments when there is a statement of facts; but a conclusion of law going to the merits of the ease must be supported by a corresponding finding of facts.
    [For other cases, see Appeal and Error, Cent. Dig. §§ 4234^-4239; Dec. Dig. <@=>1071; Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. <@=>395.]
    13. Appeal and Error <§=>1071 — Trial <§=> 395 — Conclusion of Law — Finding to Support.
    Where the trial court, in an action on a note and to foreclose a deed of trust in which the defendants claimed a homestead in part of the land, did not find that defendants had abandoned the homestead, but merely recited their testimony thereon without any finding, and concluded as matter of law that they had abandoned it prior to their execution of the deed of trust, such conclusion, without a finding on which it might have been based, made the judgment rendered in accordance therewith erroneous, so that it would be reversed.
    LEd. Note. — bor other cases, see Appeal and Error, Cent. Dig. §§ 423A-4239; Dee. Dig. <@=> 1071; Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. <@=>395.]
    14. Bankruptcy <@=>436 — Discharge—Debts Scheduled — Burden of Proof.
    The burden of proving that a creditor’s debt was duly scheduled in the debtor’s bankruptcy proceeding, and that the creditor had either statutory or other actual notice of the proceeding, rested upon the bankrupt.
    [Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 840-842, 865; Dec. Dig. <@=> 436.]
    Appeal from District Court, Fisher County; Jno. B. Thomas, Judge.
    Action by Cowboy State Bank & Trust Company against A. E. Bogart and wife, in which the National Stock Yards Bank of Ft. Worth and the Ft. Worth National Bank intervened, seeking judgments against the defendants Bogart. Judgment for interveners, and that defendants take nothing on their plea of homestead. Defendants aiipeal.
    Reversed and cause remanded.
    Higgins & Hamilton, of Snyder, and L. H. McCrea, of Roby, for appellants. Jno. W. Woods, of Rotan, and Bryan, Stone & Wade, of Ft. Worth, for appellees.
   HALL, J.

Several parties and issues were involved in this suit, but the only appeal is by A. R. Bogart and wife from that part of the judgment denying them the right to their homestead of 200 acres out of certain lands upon which liens were foreclosed. It will therefore not be necessary to make a full statement of the pleadings and facts. The Cowboy State Bank & Trust Company sued on a note signed by A. R. and W. R. Bogart, executed May 2,1911, in the sum of $7,251, due November 2d following, and stipulating for 10 per cent, interest from maturity and 10 per cent, attorneys’ fees. Appellee Bank & Trust Company also prayed for foreclosure of a deed of trust lien on certain, lands fu Kent county given to secure said note and executed about four months after the date of the note.

The National Stock Yards Bank of Et. Worth intervened and prayed for judgment upon a note for $1,000 against the same parties, which was secured by deed of trust on part of the lands described in the first-named deed. The interest of this intervener was afterwards acquired by the Et. Worth National Bank, which on July 28, 1914, also filed a plea of intervention, praying judgment upon a note for $1,500, executed by A. R. Bogart to E. P. Shultz, and indorsed by Shultz, without recourse, to the Cowboy State Bank & Trust Company. This note was secured by deed of trust upon all of the land in controversy. This note was, after its execution, indorsed by the Cowboy Bank & Trust Company to the Ft. Worth National Bank. The Et. Worth National Bank also sought to recover upon a note for $7,460, which was alleged to be a renewal of and substitution for the first above described note for $7,251. Several individuals were made parties to the suit and their rights determined by the judgment, but, since there is no complaint upon their part, it is not necessary to state the issues adjudicated as to them. As stated above, A. R. Bogart and wife claimed 200 acres as a homestead out of the land upon which the deeds of trust were given. The Et. Worth National Bank held the notes secured by the deeds of trust as collateral for a debt of $5,500.60, due it by the Cowboy State Bank & Trust Company. The $1,500 note above mentioned represented part of the purchase money for all the lands involved. That portion of the judgment of which complaint is made is as follows:

“(10) It further appearing to the court that the defendants, A. R. Bogart and wife, Ethel Bogart, have no homestead right in or claim to any of the above-described lands, it is therefore, ordered, adjudged, and decreed by the court that said named defendants take nothing on their plea here, it being approved and adjudged by the court that the two hundred acres so claimed by them and described in their pleadings herein is subject to all of the liens found in favor of the interveners, Ft. Worth National Bank and the Stock Yards National Bank.”

By their first assignment of error, appellants insist that the court erred in refusing to find as a fact that a certain indorsement on the note for $7,251 was made by the Cowboy State Bank & Trust Company more than two months subsequent to its maturity, and that therefore the Et. Worth National Bank could not be an innocent purchaser of said note for a valuable consideration before maturity.

Judgment was not rendered upon the original note, but upon the renewal. It is therefore immaterial when the Ft. Worth National Bank acquired the original note, if it obtained the renewal for value without notice before its maturity. The failure of the trial court to find upon an.immaterial issue is not reversible error.

Under the second assignment appellants complain of the refusal of the court to find that no money was advanced to Bogart and wife when the deed of trust dated October 19, 1912, was executed to secure the original note dated May 2d, 1911. Appellants assert in their assignment that this was a material finding. The deed of trust itself recites that it is given to secure the original note, and, so far as we are able to see, no claim is made by any of the appellees that the lien was given to secure any other debt. It is true that the deed of trust recites that it should be a security for any indebtedness thereafter accruing, but no proof was made of any further indebtedness. The pleadings of the parties set out without contradiction the debt it was given to secure, and no witness seems to have denied it. We think, upon a fair construction of the twelfth finding, the court has fully complied with the request of ap-pellees on this point.

The third assignment is also without merit, since the court, in its seventh finding of fact, has stated fully the matters which appellants requested to be found.

October 12, 1912, Bogart was duly adjudged a bankrupt, and the decree discharging him was entered June 7, 1913. The federal court set apart to him and his wife in that proceeding, the 200 acres as a homestead. The evidence does not show whether Bogart did or did not schedule appellee’s debts, and the Et. Worth National Bank had no actual notice of the bankruptcy proceedings. Under this state of facts the debtor of course could not be discharged from liability upon appellees’ claims.

Since appellee was not a party to the bankruptcy proceedings, it is not bound by the decree of the federal court setting aside to Bogart and wife the land as a homestead.

The rule is that exempt property is never really in the bankruptcy court, nor is the owner divested of his title where he properly urges his claim for exemption. The court has no jurisdiction of it except to set it aside as exempt property. The rights of lien creditors with reference to it must be determined in the state courts. First Remington on Bankruptcy, §§ 1022, 1024; 1 Love-land on Bankruptcy, p. 88; Brooks v. Eblen (Ky.) 106 S. W. 308, and authorities there cited.

By the remaining assignments, save one, appellants assail the action of the court in foreclosing the deed of trust dated October 19, 1911, upon that portion of the land designated by them as a homestead, and insist that the court erred in its finding of fact bearing upon this issue, and that the conclusions of law are neither supported by the findings nor by the evidence adduced. We will dispose of these assignments by a general discussion of the rules of law applicable to the facts rather than by a consideration of the assignments in detail.

Bogart and wife used the land in controversy as a homestead for several years prior to September 1, 1910. It was shown without controversy in behalf of appellees that on the last-named date Bogart leased the entire 1,470 acres, including the homestead, to one Roy for a period of five years; that on or about the 1st of October following he moved with his family to New Mexico, where three months later he purchased a small farm of 120 acres, upon which he resided and made a crop in 1911, and rendered the premises for taxes. After residing there nine months he sold the farm, his vendee assuming the unpaid purchase money, and moved to El Paso county, Tex., where he has since worked for wages for his father-in-law. That the deed of trust was executed October 19, 1911, following the sale of his New Mexico farm; that the sale was made several days before the execution of the deed of trust, but was not duly conveyed until October 18, 1911. The deed of trust contains a recital disclaiming any homestead interest in or to any of the 1,470 acres, but describes no property in that portion of- the instrument left blank in the printed form for that purpose.

Opposed to the theory of abandonment, appellants both testified that they owned no other land except the 200 acres and had never owned any other homestead since they occupied the land in controversy; that in leaving Texas they never intended to abandon their home, but always intended to return and reoccupy it at the expiration of the five years lease; that their removal to New Mexico was on account of the husband’s ill health; that upon arriving there they endeavored to lease a farm, and, failing in this, they were forced to buy the 120 acres in order to have land to work for that year; that they claimed their exemption in the bankruptcy proceedings instituted by the husband and had their home set aside to him; that they collected the rents from the entire 1,470 acres until the husband filed his petition in bankruptcy, and since then had received rents from the 200 acres only; that the husband never voted in New Mexico, nor had he ever voted in El Paso county.

Whether or not land claimed as a home- ■ stead is exempt from the operation of a trust deed must be determined by the condition existing at the time the deed is given. Crebbin v. Moseley, 74 S. W. 815; Gaar-Scott Co. v. Burge, 49 Tex. Civ. App. 599, 110 S. W. 181.

When property has been impressed with the homestead character it will be presumed to so continue until its use as such has been discontinued with the intention not to again use it as a home. Archibald v. Jacobs, 69 Tex. 256, 6 S. W. 177; Drought v. Stallworth, 45 Tex. Civ. App. 159, 100 S. W. 188. Certain and conclusive evidence of abandonment, with no intention to return and claim the exemption, is required before a homestead, once occupied as such, can be subjected to forced sale (Cross v. Everts, 28 Tex. 523; Thomas v. Williams, 50 Tex. 269; Gaar-Scott Co. v. Burge, supra; Farmer v. Hale, 14 Tex. Giv. App. 73, 37 S. W. 164; Rollins v. O’Farrell, 77 Tex. 90, 13 S. W. 1023); and the burden of proof rests upon the one asserting the abandonment (Cooper v. Basham [Sup.] 19 S. W. 704; Graves v. Campbell, 74 Tex. 576, 12 S. W. 238; Harle v. Richards, 78 Tex. 80, 14 S. W. 257).

A farm occupied as a homestead does not lose that character when abandoned by the owner, partly on account of ill health, when the abandonment is accompanied with the intention of returning at a later date. Reinstein v. Daniels, 75 Tex. 640, 13 S. W. 21; White v. Wadlington, 78 Tex. 159, 14 S. W. 296; Gaar-Scott Co. v. Burge, supra; Jones v. Robbins, 74 Tex. 615, 12 S. W. 824.

The lease in the instant case was for a fixed period, and, when taken with the testimony of Bogart, is such a temporary renting as brings it within the following provision of the Constitution, art. 16, § 51: “Provided also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.” Oppenheimer v. Fritter, 79 Tex. 99, 14 S. W. 1052. In this connection, it wilt be remembered that Bogart and wife had disposed of the farm in New Mexico prior to the execution of the deed of trust under which appellees claim.

The deed of trust was executed to secure a pre-existing debt. The issues of estoppel and fraud are not raised either by the pleadings or the evidence. The court did not find as a fact what were the intentions of Bogart and wife when they left the land in controversy, but concluded as a matter-of law that they had abandoned it prior to the execution of the deed of trust, and at that time they had acquired a homestead in New Mexico. While the conclusion is unsupported by any finding, the rule seems to be that when there is a statement of facts in the record, and it is not made clear that a failure to file any findings and conclusions at all has injured appellant, it is no cause for reversal Banfield v. Emery, 177 S. W. 952.

There is a sharp conflict in the testimony upon the issue of intention as shown by the statement of facts before us; but the evidence is sufficient to support the judgment if the testimony of Bogart and wife be disregarded entirely. Being the parties in interest, the trial judge was not bound to believe their statements, and he evidently did not do so. Steeley v. Tex. Imp. Co., 55 Tex. Civ. App. 463, 119 S. W. 319.

So these assignments presenting mainly questions of fact are overruled and the judgment is affirmed.

On Motion for Rehearing.

Appellant insists that we erred in holding that, where there is a statement of facts in the record, the failure of the court to find a material fact necessary to support a conclusion of law is not reversible error. Upon further investigation, we find that this contention is correct. While it is the rule that the failure of the trial court to file findings and conclusions is not cause for which the courts have reversed judgments, when there is a statement of facts, the rule is equally well established that a conclusion of law going to the merits of the case must be supported by a corresponding finding of fact. As stated in the original opinion, the court did not find that Bogart and wife had abandoned the homestead, but merely' recited their testimony upon that point without a finding either .way; but did conclude as a matter of law that they had abandoned it prior to the execution of the deed of trust. There being no finding of fact upon which this conclusion could have been based, a judgment in accordance with such conclusion is erroneous and must be reversed. Edwards v. Ohisholm (Sup.) 6 S. W. 558; Sanders v. Sheran, 66 Tex. 656, 2 S. W. 804; Farmer v. Hale, 14 Tex. Civ. App. 73, 37 S. W. 164; Zachariae v. Swanson, 77 S. W. 627; West End Town Co. v. Grigg, 93 Tex. 456, 56 S. W. 49; Texas Midland Ry. Co. v. Johnson, 65 S. W. 388.

Appellant further contends in the motion that we erred in the original opinion with reference to the effect of the decree rendered in the bankruptcy proceedings in the federal court. We do not assent to this, contention. It is expressly provided by section 17 of the Bankruptcy Act (Act July 1, 1898, e. 541, 30 Stat. 550 [U. S. Comp. St. 1913, § 9601]) that a discharge shall release a bankrupt from all of his provable debts except such as have never been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had actual notice or knowledge of the proceedings in bankruptcy.

The burden of proving that the bank’s debt in the instant case was duly scheduled, and that the bank had either statutory or other actual notice of the proceedings, rested upon appellant. Fields v. Rust, 36 Tex. Civ. App. 350, 82 S. W. 331. As stated, in Third Ruling Case Law, p. 338, § 155:

“In as much as a discharge is for the benefit of the bankrupt, and the omission of a claim from the schedule is due to his default, it is said to be well settled that the burden is upon him to prove that the omitted creditor had the requisite notice or knowledge of the proceedings.”

Unless appellee’s claim was properly scheduled, or appellee had actual notice of the bankruptcy proceedings in time to prove its claim, they would certainly not be bound by the judgment in any particular. Third R. O. L. “Bankruptcy,” § 155.

The motion for rehearing is overruled in part and granted in part, and the judgment is reversed and the cause remanded.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (§^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes