author: LANE, J.

text:
    BLAIR et al. v. ARMSTRONG et al.
    (No. 7565.)
    (Court of Civil Appeals of Texas. Galveston.
    April 24, 1918.
    Rehearing Denied May 16, 1918.
    Second Petition for Rehearing Denied May 23, 1918.)
    1. Tend ob and Puechasee <§=>284 — Action to Enfoece Landlord’s Lien — Petition— Sufficient Description.
    In a suit to foreclose implied vendor’s liens, judgment for defendants was properly directed, where the petition contained no sufficient description of the land or lease involved to enable the court to locate it to the end that judgment with reference thereto could be made definite and certain.
    2. Vendor and Purchaser <§=>28¿L-Enforce-ment of Vendor’s Lien — Description—Directed Verdict.
    In such suit a judgment for defendants was properly directed where plaintiffs’ lease upon any land claimed by a part of the defendants, was not sufficiently described or identified, and where its terms and obligations were not alleged, and the alleged leased land was not described in the pleadings, and nothing in the record made its description definite and certain or so located as to enable the court to render judgment with reference thereto.
    3. Vendor and Purchaser <§=>284 — Action to Foreclose Vendor’s Lien — Title — Directed Verdict.
    In such suit a verdict for defendants was' properly directed where it did not appear that plaintiffs had any title to any of the property claimed to have been sold by them, but the petition and the contract of sale attached showed that prior to such alleged sale plaintiff had conveyed all their rights and interests in and to the property in controversy.
    4. Vendor and Purchaser <§=>284 — Vendor’s Lien — Directed Verdict.
    In a suit to enforce implied vendor’s liens arising upon the sale of lease interests, contract interests, stock, and other personal property, a directed verdict for defendants was proper where neither the pleading nor the evidence showed anything to enable the court to fix the amount for which the lien should be foreclosed.
    5. Vendor and Purchaser <§=>265(1) — Enforcement of Vendor’s Lien — Rights of Purchaser.
    In a suit to enforce implied vendor’s liens upon interests in a lease, it could not be contended that the property which the defendants purchased from the original purchaser was subject to any 'kind of implied lien to secure the payments of debts due by the original purchaser for personal property purchased by him from plaintiffs.
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Suit by Mrs. Love Blair and husband against B. C. Armstrong and others. Judgment by default against defendant Armstrong, and for other defendants upon a directed verdict, and plaintiffs appeal.
    Affirmed.
    Stevens & Stevens, of Houston, for appellants. E. P. & Otis K. Hamblen, of Houston, for appellees.
   LANE, J.

This suit was instituted by Mrs. Love Blair and her husband, F. M.- Blair, against B, C. Armstrong, J. H. McEarlane, C. F. Gydeson, and R. 0. Rucker, to recover judgment against Armstrong for a certain sum alleged to be due them by said Armstrong, and for certain property described in their petition, and to foreclose their alleged implied vendor’s lien as against all the defendants upon certain, land and property sought to be described in their said petition. There were also other persons made parties to the suit, but, as they passed out of the case without complaint, no further mention of them will be made in this opinion.

In their petition the plaintiffs, Blair and wife, alleged the execution of a contract between F. M. Blair and wife, Love Blair, and B. C. Armstrong which reads as follows:

“Whereas, the said parties of the first part are the owners of certain rights, interest, claims, and holdings in a certain lease of land made by Pattillo Higgins and his wife, Mrs. Annie ETig-gins, of date July 11, 1913, to the said F. M. Blair, and of certain rights, interests, claims, and holdings under a certain contract between the Pet Oil Company, a corporation, and H. O. Norman, of date September 10, 1914, regarding the same land, and of certain rights under a contract between said F. M. Blair, H.- P. Dolson, and H. O. Norman, of same date., concerning same land, the last said contract being acknowledged before W. C. Jourdan, notary public, Harris county, Tex., which rights, interests, claims, and holdings are traced through and from a certain contract of lease between Mrs. Anna Allen Wright, joined by her husband, George Wright, and Pattillo Higgins, of date April 11, 1917, recorded in Volume 21, page 493, of the Record of Contracts, in the office of the county clerk of Harris county, Tex., all of the foregoing instruments being here referred to and made a part hereof;
“And whereas, the said parties of the first part are owners of and interested in, and have certain rights, interest, claim, and holdings in and to certain stock and stock certificates in and of the Pet Oil Company, a corporation;
“And whereas, the parties of the first part are the owners of, and have certain rights, title, interest, claims, and holdings in and to, certain oil well equipment now being and situated on the land contracted about, said contract between Mrs. Annie Higgins, joined by her husband, Pat-tillo Higgins, upon the one part, and F. M. Blair, trustee, upon the other part, being the land described by metes and bounds, and being all and any of said equipment as same now exists so situated, of every description whatsoever;
“And whereas, the said Blair conveyed the rights conveyed to him as trustee to the Pet Oil Company, a corporation, and the said Pet Oil Company conveyed said rights to the Progressive Oil Company, a partnership, without any consideration moving;
“And whereas, there are certain claims outstanding in favor of said F. M. Blair against said Pet Oil Company which he hereby agfees shall be and they are wholly canceled as a part of the consideration hereof;
“And whereas, there are certain debts claimed and held against said Pet Oil Company by other persons, all and every of which the said F. M. Blair hereby agrees shall in no wise be held against any of the property, rights, interests, Claims, or holdings, or any item or property herein conveyed or contracted about, so that said Armstrong shall be held in all things, harmless as to. all and every of such debts, and said Blair hereby warrants all items, properties, etc., 'herein mentioned free of all and every of such debts;
“And whereas, the parties of the first part sold and assigned to the party of the second part each and every of the items of property herein-before recited as owned by them, or in which they have certain, rights, interests, title, claims,’ and holdings, or either, in consideration as aforesaid, and of the sum of $250 cash, the receipt of which is hereby acknowledged from said Armstrong, and the note of said Armstrong for $250, payable $50 per month, which is received by the parties of the first part, and the further consideration of 500 shares of stock, at $1 per share, in the B. O. Armstrong Oil Company, a corporation now in process of organization, which are to be issued to said Hove Blair immediately upon the formation of said corporation, out of the stock to belong to said Armstrong, issued to him on account of the assets of said corporation put into same by said Armstrong;
“Apd whereas, the said Armstrong has purchased from said Pattillo Higgins and wife all rights under said contract between said Blair, trustee, hereinbefore recited, and has become the full owner of all such rights;
“And whereas the parties of the first part claim to be interested in the assets of the said Pet Oil Company, and to own certain interests therein, all of which are conveyed and assigned and set over, to said Armstrong hereby:
“Now, therefore, upon the consideration aforesaid, know all men by these presents that the parties of the first part have this day sold, assigned, conveyed, bargained, and set over to said party of the second part all our rights, title, interest, claim, and holding in and to each and every of the items of property hereinbefore mentioned, and in and to said leases or contracts, and in and to all assets of said Pet Oil Company, so that the party of the second part shall be and is subrogated to every right, title, interest, claim, and holding we or either of us have o\ had in all and every of said contracts or leases, or any and all items of said property, so that said party of the second part shall be and become the full owner of all of said items, and of each and every of the rights, title, interests, claims, and holdings heretofore had by us or either of us in and to any and all of said leases or contract, wells, equipment, assets, stock, and stock certificates of the Pet Oil Company, and any and all other items hereinbefore mentioned, and all of same, including said stock certificates in said Pet Oil Company, are hereby sold, assigned, bargained, conveyed, and set over to said party of the second part, to be as wholly his as they were ever in any way the property of said parties of the second part.
“And we hereby warrant all of same free of any lien, claim, or indebtedness, or incumbrance whatsoever. To have and to hold the same to the said B. C. Armstrong, his heirs and assigns, forever.
“Witness our hands this 31st day of July, 1915. Signed, executed, and delivered in duplicate. E. M. Blair.
“Love N. Blair.
“B. C. Armstrong.”

They alleged, that by said ' contract they sold to B. C. Armstrong all their property rights, interest, claims, and holdings in and to the properties and things mentioned therein, for the consideration therein expressed. They further alleged that after the execution of said contract, but, however, on the same day of its execution, said Armstrong notified them that he would be unable to organize and incorporate his contemplated oil company, and therefore would be unable to deliver the 500 shares of stock mentioned in said contract; that they then orally agreed with Armstrong that in lieu of the 500 shares of stock and the $250 note to be paid in monthly installments mentioned in said contract the said Armstrong should execute and deliver to them his promissory note for $750, with good and sufficient solvent in-dorsers and security, together with a lien on said properties and premises conveyed by the contract. Among other things, they pray for a judgment for $700, for a foreclosure of their equitable implied vendor’s lien, and for judgment for certain personal property alleged to have been left by them on the premises in question and which was not included in the sale made to Armstrong, “if the same can be located; but, if the same cannot be located, then that they have judgment for the value of’said articles.” No parties were named in the prayer against whom judgment was asked.

In view of the disposition we shall make of the appeal, we deem the above a sufficient statement of the allegations of the plaintiff’s petition.

The defendant Armstrong made no answer, and judgment by default was rendered against him in favor of plaintiffs for the sum of $700, with interest thereon from July 31, 1915, at the rate of 6 per cent, per annum until paid.

Defendants J. H. McFarlane, O. F. Gyde-son, and R. O. Rucker filed their answer: First, excepting and demurring to plaintiffs’ petition on the grounds that said petition alleged no cause of action against said defendants or either of them; second, denying each and every allegation in said petition contained; third, alleging that they are purchasers of the property in question for value without knowledge of plaintiffs’ now asserted claim, that plaintiffs made the conveyance to Armstrong as alleged in their petition and placed him in possession of the property conveyed with the outward appearance of being the owner of same free from and clear of any claim thereon by plaintiffs, and that defendants purchased said property under such circumstances believing said property to be free from any lien of plaintiffs, that before they purchased said properties plaintiffs had executed and delivered to Armstrong a receipt showing that they had received a secured note for $750 in lieu of the oil stock and $250 note mentioned in the contract between said Armstrong and plaintiffs, and had permitted Armstrong to exhibit said receipt to defendants, thus showing that no lien existed against said property in plaintiffs’ favor, and that by reason thereof they are estopped to assert any lien against said property. They also alleged that they were the owners of all of said property, and prayed for judgment therefor as against plaintiffs.

After the evidence was closed the court instructed the jury selected to try the cause to return a verdict for defendants McFar-lane, G-ydeson, and Rucker as prayed for by them. The jury returned a verdict as instructed by the court, and judgment in accordance with said verdict was rendered and entered.

Tlie contention of appellants, which, if decided against them, will result in an af-firmance of the judgment of the trial court, is that the undisputed evidence shows that they had an implied equitable vendor’s lien on the land sought to be described in their petition, that they were entitled under the law and evidence to a judgment against all defendants foreclosing their said lien, and therefore the court erred in instructing a verdict for the defendants MeFarlane, Gyde-son, and Rucker.

We do not think the court erred in its peremptory instruction to the jury. We reach such conclusion: First, because there is no sufficient description of the land involved in this suit in plaintiffs’ petition to enable the court to locate the same, to the end that judgment with reference thereto could be made definite, and- certain; second, because if plaintiffs ever owned any lease upon any land now claimed by defendants MeFarlane, Gydeson, or Rucker, the same is not sufficiently described nor identified, nor the terms, rights, and obligations thereof made known, nor was any land upon which the supposed lease existed in any manner described in the pleading, nor was there reference to any instrument found in the record whereby the description of the land might be made definite and certain so that the same may 'be located, thereby enabling the court to render judgment with reference thereto; “the court had no means of determining by decree the nature, terms, conditions, rights, and obligations of the supposed lease, nor the royalty to be paid, nor the requirements to be performed, nor the location of the three acres of land in lot 10 that appellant says was covered by their lease’’; third, because from the pleadings it did not appear that plaintiff had any title to any of the property claimed to have been sold by them to Armstrong at the time of such pretended sale, but, on the other hand, it is shown by the plaintiffs’ petition, and the contract of sale attached thereto as a part thereof, that prior to such pretended sale plaintiffs had conveyed to the Pet Oil Company, a corporation, all their rights, claim, and interest in and to the property in controversy (Houston v. Dickson, 66 Tex. 79, 1 S. W. 375); fourth, it is shown by the pleadings of the plaintiff that they attempted to convey to Armstrong, for a lump sum, certain rights, claims, and holdings in a certain léase of land, and to certain rights, interest, claims, and holdings under a certain contract between the Pet Oil Company and H. O. Norman regarding the same land, and to certain rights under a contract between plaintiff F, M. Blair, H. P. Dolson, and H. O. Norman, concerning same land, and to certain-rights, interest, claims, and holdings in and to certain stock and stock certifieate.s in and of the Pet Oil Company, and to certain rights, title, interest, claims, and holdings in and to certain oil well equipment situated on the land contracted about, and it is not shown by either pleadings or evidence how much of the consideration named in the contract of sale was for the lease rights, nor how much thereof was for the other properties sought to be conveyed by said contract in order to enable the court to fix the amount for which the asserted implied equitable lien of the plaintiffs should be foreclosed. Neither the petition of the plaintiffs, the contract attached thereto, nor the evidence showed what portion of the consideration named in the contract of sale was for any particular item of property.

Plaintiffs in their petition admit the receipt of $300 cash payment from Armstrong, and it was not made to appear to the trial court that said payment was not the full value of the leasehold conveyed by plaintiffs to Armstrong, and that the unpaid portion of the consideration recited in the contract between plaintiffs and Armstrong was not due for the personal property in said contract described.

Appellants’ claim as made by the pleadings and evidence in the trial court, and as presented in this court, is so vague, indefinite, and uncertain that neither the trial court nor this court could undertake to grant any relief without doing an injustice to Mc-Farlane, Gydeson, and Rucker, who were not parties to the contract between appellants and Armstrong, and who are not in any manner liable for the debts of Armstrong. It cannot be reasonably contended that the property which they purchased from Armstrong is subject to any kind of implied lien to secure the payment of debts due by Armstrong for personal property purchased by him from appellants. We might assign other valid reasons why we think the trial court properly instructed a verdict for MeFarlane, Gydeson, and Rucker, but it is unnecessary, as those already given are amply sufficient.

There was neither pleading nor evidence calling for the submission of the question of appellants’ right to a rescission of the contract between them and Armstrong. I'Ve therefore overrule the second assignment.

The judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: RAINET, O. J.

license: Public Domain

text:
    ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. DOBBS.
    (No. 7850.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 9, 1918.
    On Motion for Rehearing, April 13, 1918.
    On Second. Motion for Rehearing, June 29, 1918.)
    Insurance @=>451(1) — Accident Insurance —Exemptions—Cerebrau Hemorrhage.
    Under an accident policy covering bodily injuries through external, violent, or accidental means, and exempting the insurer from liability for disability caused by cerebral hemorrhage, though caused by accidental means, where insured accidentally fell, striking his bead and rupturing a blood vessel in his brain, causing cerebral hemorrhage, which caused partial paralysis and a total disability for eight weeks, he could not recover from the insurer though the accident was the proximate cause of disability.
    Appeal from Dallas Cbunty Court; T. A. Work, Judge.
    Action by William J. Dobbs against the Order of United Commercial Travelers of America. From judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    Smith, Robertson & Robertson, of Dallas, for appellant. J. N. Townsend, of Dallas, for appellee
   RAINET, O. J.

This suit was brought to recover on a policy or certificate of accident insurance issued by appellant, to appellee. Appellee alleges that the contract of insurance provided for payment of loss for injury caused by accident. He also alleged that he was caused to fall, his head striking the ground or some hard substance which made an abrasion, causing cerebral hemorrhage, and from which paralysis resulted and he was disabled eight -weeks.

Appellant answered by general demurrer, general denial, and specially npnliability for such an accident, as the policy duly exempted it from such by the following provision:

“Benefits under this article shall not cover nor extend to any death, disability or loss ⅜ ⅜ * nor shall such benefits cover or extend to any of the following conditions whether caused by accidental means or not, to wit: * * * Cerebral or meningeal or spinal hemorrhage.

A trial resulted in a verdict and judgment against the insurance company, and an appeal was taken by it.

The evidence showed that the plaintiff was watering his flowers and garden plants as was his custom when at home, and while so engaged his feet became entangled in a water hose, and, in attempting to straighten out said hose, plaintiff tripped himself and was thrown to the ground; that as a result of the fall plaintiff’s head struck the ground or other hard substance with great violence, causing an external and visible mark of injury ; the blow on his head ruptured a blood vessel in his brain, causing a cerebral hemorrhage : the cerebral hemorrhage was caused by said accident alone and independently of all other causes; the cerebral hemorrhage caused the plaintiff to be partially paralyzed and otherwise incapacitated him so that he was totally disabled for a period of eight weeks and five days; that all the disabilities sustained and suffered by the plaintiff in said fall resulted from the cerebral hemorrhage, which said hemorrhage was caused or brought about by such accidental fall.

The policy provides for indemnity against the results of bodily injuries through external, violent, or accidental means. Under the exemptions, it provides as follows:

“The benefits shall not cover or extend to any of the following conditions, whether by accidental means or not,” setting out said exemptions, among other things, “cerebral hemorrhage.”

The accident to appellee caused “cerebral hemorrhage” from which paralysis was produced, and from which disability resulted to appellee; hence there is no liability for indemnity on appellant’s part, as it is exempt therefrom by the terms of the policy. There is no ambiguity in the language of the policy, which is intelligible and comprehensive, and appellant is evidently exempt from the result of cerebral hemorrhage caused by an accidental means.

The taxing of a penalty for attorney’s fees against the insurance company was error, as said company is not liable on its contract.

The evidence showing no liability, the judgment is reversed and here rendered for appellant.

Reversed and rendered.

On Motion for Rehearing.

After a reconsideration of our former holding in this case to the effect that appellant is not liable on its policy of insurance and reversing and rendering judgment for it, we have concluded from the current authorities that we were in error in holding that the language in the policy was such as to exempt the appellant, insurance company, under the circumstances from responsibility for the result of the accident to appellee.

The undisputed evidence shows that the disability of appellee lasted for eight weeks and five days, caused “through external, violent or accidental means” as provided by the policy. The policy was a general accident policy expressly insuring against bodily injuries resulting in death, disability, etc., but does not by express language stipulate against liability for bodily injury which might result in cerebral hemorrhage. Not having used some express language to note the exemption, the general insurance clause will be held binding, and the insurance company liable. In support of this proposition we cite Bryant v. Casualty Co., 107 Tex. 582, 182 S. W. 675, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517; Insurance Co. v. Hunter, 30 Tex. Civ. App. 489, 70 S. W. 798; Insurance Co. v. Harvey, 129 Ill. App. 104; Garvey v. Insurance Co., 123 App. Div. 106, 108 N. Y. Supp. 186: Hall v. Association, 86 Wis. 518, 57 N. W. 366; Summers v. Aid Ass’n, 84 Mo. App. 605: Goodes v. Order United Commercial Travelers of America, 174 Mo. App. 330, 156 S. W. 995; Moon v. Order United Commercial Travelers of America, 96 Neb. 65, 146 N. W. 1037, 52 L. R. A. (N. S.) 1205, Ann. Cas. 1916B, 222; Rheinheimer v. Insurance Co., 77 Ohio St. 360, 83 N. E. 491, 15 L. R. A. (N. S.) 245; Omberg v. Association, 101 Ky. 303, 40 S. W. 909, 72 Am. St. Rep. 413; Cary v. Insurance Co., 127 Wis. 67, 106 N. W. 1055, 5 L. R. A. (N. S.) 926, 115 Am. St. Rep. 997, 7 Ann. Cas. 484; Accident Ass’n v. Alexander, 104 Ga. 709, 30 S. E. 939, 48 L. R. A. 188.

The insurance company is claiming exemption on account of an intervening secondary cause, that of hemorrhage, when the loss was caused by paralysis, which resulted from an external bodily injury which was the proximate causa of the disability.

In the case of Insurance Co. v. Hunter, supra, where Hunter was insured in an accident policy against death, “the evidence disclosed that the injury produced rheumatism, and that heart trouble followed therefrom, and death [resulted] from heart trouble.” The late Mr. Bookhout, then of this court, said:

“If the rheumatism which produced the death of Hunter was not caused by an accidental injury, then the company is not liable; but if such rheumatism was caused by the accidental injury, and was but a mere link in the chain of causation between the accident and death, then the death is attributable, not to the disease, but to the accident alone.”

In this case the appellee’s disability is attributable to the injury and the appellant is liable on its policy.

The authorities cited above support the principle announced in the Hunter Case, to which we adhere, and grant the motion for a rehearing and affirm the judgment of the trial court.

On Second Motion for Rehearing.

At a former sitting in this term of court we reversed and rendered the judgment for appellant in this cause. Subsequently we granted appellee’s motion for rehearing and affirmed the judgment of the trial court. Now we are called upon by the appellant to reconsider that action and to reverse and render in its favor.

The point at issue has given us considerable trouble. Both counsel have presented exhaustive and able briefs and arguments and are to be commended for their zeal and efforts. After reconsidering the issue involved and further reviewing the authorities presented, we have concluded that the last construction we have placed upon the contract is not supported by the trend of authorities, i. e., that the clause, exempting appellant from the result of “cerebral hemorrhage.” is not broad and comprehensive enough to exempt appellant from liability for the accident. But after a more careful reconsideration of the authorities we have reached the conclusion that said clause does exempt the appellant from liability and that we were wrong in holding that it did not. To illustrate, one of the cases mainly relied on by us for holding said exemption clause was not sufficiently comprehensive to exempt appellant from liability was the case of Insurance Co. v. Hunter, 30 Tex. Civ. App. 489, 70 S. W. 798. In that case suit was brought on an accident policy that had no exemption clause, as in this case, and the conclusions there reached were correct but not applicable here.

We are of the opinion that we erred in granting appellee a rehearing, and now grant appellant’s motion for rehearing and return to our original holding reversing and rendering the judgment in favor of appellant
      ifeEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    JOHNSTON v. JOHNSTON.
    (No. 1984.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 6, 1918.
    Rehearing Denied June 27, 1918.)
    1. Trusts <⅜^>35(2) — Agreement to Buy Land.
    Where plaintiff and defendant agreed to jointly acquire certain land, defendant to furnish all the money and to be thereafter repaid by plaintiff, defendant, in taking the title in his own name, held an undivided one-half interest in trust for the benefit of plaintiff.
    2. Tenancy in Common @=»19(1) — Redemption by One Tenant.
    As a general rule, the redemption of the common property by one tenant in common, whether accomplished by the acquisition of the incumbrance or by the purchase of the property at a foreclosure sale, will inure to the benefit of the joint owners.
    3. Tenancy in Common <®=sl9(5) — Redemption by One Tenant — Contribution.
    A tenant who redeems the common property from an incumbrance has a right to contribution from his co-owners, and as between him and defaulting cotenants the lien is not extinguished, but is kept alive for his benefit, and may be foreclosed upon the failure of the co-owners to reimburse him within a reasonable time, and the redeeming tenant becomes subrogated to the rights of the original lienholder.
    4. Trusts <®==>362 — Enforcement—Defenses.
    Where two heirs agreed to acquire joint title to property, in which they had an interest as heirs, by purchasing a mortgage thereon, foreclosing it, and buying in the property, and paying each of the other heirs $40 for his or her interest, and did acquire the property by foreclosure, the right of one of the purchasers to compel the other to make a division of the property, title to which had been taken in the other’s name, was not affected by failure to pay .the other heirs $40 each, since the other heirs alone could complain of such failure.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by D. J. Johnston against E. B. Johnston. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Perkins & Perkins and Thos. Shearon, all of Rusk, for appellant. Norman, Shook & Gibson, of Rusk, for appellee.
   HODGES, J.

The appellee brought this suit against the appellant for the purpose of recovering title and possession of an undivided half interest in 70 acres of land fully described in his pleading, tie relied for title upon proof of a parol agreement between himself and the appellant, under the terms of which the latter was to take up and foreclose a mortgage on the land and buy it at the execution sale for their joint benefit. The facts show that in 1914 or prior thereto W. S. Johnston, the original owner of the land in controversy, died, leaving as his only heirs his mother and several brothers and sisters, among whom wore the parties to this suit. At the time of his death the land was incumbered with a mortgage for $250. Some time later tire mother died, leaving the entire property to her children. According to the testimony of the appellee, which was not disputed, he and the appellant determined to acquire the exclusive ownership to be shared by them equally. They entered into an agreement to purchase the mortgage debt and to pay each one of the heirs $40 for his or her interest. The appellant was to furnish the money for this purpose, half of which was to be repaid by the appellee at some future time not definitely agreed upon. The appellant thereafter purchased the outstanding debt and lien, and took an assignment thereof in his own name, but for the benefit of the appellee also. Eor some reason which does not clearly appear they abandoned the agreement to pay each of the other heirs $40; but a foreclosure suit was filed by the appellant, in which the remaining brothers and sisters, including the appellee, were made parties defendant. That suit resulted in a judgment in favor of the appellant for the amount of the debt and a decree foreclosing the mortgage on the property. On the day of sale both the appellant and the appellee were present, and by agreement one of the attorneys in the foreclosure suit did their bidding and purchased the property. The appellant furnished the money to pay off the judgment and costs, and the deed was . made to him alone. In the trial below the court found as a fact that prior to that transaction it had been agreed between the appellant and the appellee that the deed should be made to them jointly, and there is sufficient evidence to support that finding. The evidence further shows that the appellant and the appellee subsequently went into possession of the land, made improvements thereon, and shared equally in the rents and benefits resulting from the occupancy. Prior to the present suit appel-lee offered to pay to the appellant one-half of the purchase price together with the interest which had accrued, and demanded a deed; but this was refused by the appellant, who then set up a claim of exclusive ownership. The institution of this suit followed, accompanied by a tender of the amount due.

The assignments of error urged by the appellant raise the .question of the sufficiency of the evidence to sustain certain specific findings of fact mentioned in the conclusions filed by the trial court. Without reference to any particular finding, we think the evidence abundantly sustained the general conclusion upon which the judgment must rest; that the parties to this suit had agreed to jointly acquire the land; that the appellant was to furnish all of the money and to be thereafter repaid by the appellee; and that the appellant in taking the title in his own name held an undivided one-half interest in trust for the benefit of the appellee. Stafford v. Stafford, 96 Tex. 106, 70 S. W. 75; Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; Hirshfeld v. Howard, 59 S. W. 55; Id., 60 S. W. 806.

The validity of the foreclosure judgment is assailed upon the ground that the purchase of the mortgage debt by one tenant in common inured to the benefit of the other joint owners, and that the sale made at the instance of the appellant was void. As a general rule the redemption of the common property by one joint tenant, whether accomplished by the acquisition of the in-cumbrance or by the purchase of the property at a foreclosure sale, will inure to the benefit of the joint owners. Roberts v. Thorn, 25 Tex. 735, 78 Am. Dec. 552; 7 R. C. L. p. 857 et seq. But the tenant who redeems has a right to demand contribution from his co-owners. As between him and defaulting co-tenants the lien is not extinguished, but is kept alive for his benefit, and may be foreclosed upon the failure of the co-owners to reimburse him within a reasonable time. Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1029; Hogan v. McMahon, 115 Md. 195, 80 Atl. 695, 24 Ann. Cas. 1912C, 1260 ; Starkweather v. Jenner 216 U. S. 524, 30 Sup. Ct. 382, 54 L. Ed. 602, 17 Ann. Cas. 1167, and notes; 7 R. C. L. p. 868. The tenant who redeems the common property becomes subrogated to the rights of the original lienholder.' But this case is not one in which cotenants are disputing the claim of another tenant who asserts an exclusive title to the common property acquired under such circumstances. On the contrary, it is one in which the joint owners have apparently for several years acquiesced in the sale and purchase by one of their number. The assault upon the validity of the transaction is made by the tenant who exercised that privilege and who now seeks to impeach his own title.

The appellant also contends that his and the appellee’s failure to carry out their agreement to pay each of the heirs $40 for their respective interests vitiated their contract with each other for a purchase and division of the land. Assuming that such an agreement was made with the heirs, it was for their benefit, and the heirs alone could complain of the failure on the part of the appellant and appellee to perform it.

We ⅞⅛⅛ it unnecessary to discuss the assignments of error in detail. Upon the merits of the case justice has been done, and the judgment should be affirmed.
      <g^>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY-, C. J.

text:
    AARON FRANK CLOTHING CO. v. DEEGAN et al.
    (No. 6057.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 15, 1918.
    Rehearing Denied July 1, 1918.)
    1. Trusts <@=380— Resulting Trust — Pub-chase of Land.
    Where plaintiff loaned money to defendant to buy land for defendant, who agreed to repay the money, there was no resulting trust, to create which the payment must be made at the time of purchase.
    2. Fbauds, 'Statute of <@=»56(4) — Lien on Land — Parol Agreements.
    No lien can be created on land by lending money to a purchaser thereof on his oral promise to convey the land to the lender in default of payment, since a lien upon real estate will not be created by parol agreement.
    8. Limitation oe Actions <@=»27 — Parol Contract.
    One who loaned money to another to purchase land for the latter, who agreed to convey the land to the lender, in default of payment could not maintain suit nearly five years thereafter to establish a lien on the land or recover the money; the parol promise being barred by the statute of limitations of two years.
    4. Subrogation <@=>1 — Agreement or Implication.
    Subrogation may arise by agreement of the parties or by implication in equity to prevent fraud or injustice.
    5. Subrogation <@=>23(1) — Discharge of Debt — Purchase Monet.
    Where plaintiff loaned defendant money with which to buy land for defendant, without agreement for subrogation, and defendant paid part of the purchase money, giving notes for the rest which he ultimately paid, such payment extinguished the debt, and the doctrine of sub-rogation did not apply in favor of the lender.
    6. Trusts <@=380(8) — Evidence—Sufficiency.
    Evidence held insufficient to establish trust in land for money loaned to pay purchase money.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by the Aaron Frank. Clothing Company against J. L. Deegan and wife and another. Judgment on directed verdict for defendants, and plaintiff appeals.
    Affirmed.
    Davis & Long, of San Antonio, for appellant. T. H. Ridgeway and T. J. Murray, both of San Antonio, for appellees.
   FLY-, C. J.

This suit was instituted by appellant against J. L. Deegan and Ordelia Deegan, his wife, and the Scottish-American Mortgage Company, to recover the sum of $3,190.15, and to foreclose alien on certain property in San Antonio, Tex. Ordelia Dee-gan, for herself and as executrix of the will of J. L. Deegan, answered by numerous exceptions and denials of the truth of the allegations of the petition. The petition is quite 1 voluminous, but from which we glean the allegations that J. L. Deegan owned certain shares of stock in the appellant corporation and was an officer and employé thereof; that appellant advanced certain sums of money to him which were used to purchase the lots described and to improve the same ; that there whs a verbal agreement between/ Deegan and appellant on March 10, 1910, that Dee-gan would repay the money'advanced to him, and that if not repaid that he would convey the property to appellant; that title to the land was taken in the name of Ordelia Dee-gan; that $700 in cash was paid by Deegan on the property, and vendor lien notes were executed for the balance of the purchase money; that subsequently Deegan made another payment of $700 on the land; that the lien notes were paid with funds advanced to Deegan by appellant; that improvements were made on the land, and a mechanic’s and materialman’s lien was given to secure $3,700, the price of improvement, which debt and lien eventually passed into the hands of the Scottish-American Mortgage Company, Limited, and it was for that reason made a party. Appellant claimed that the verbal agreement with Deegan made appellant the equitable owner of the property, and that a “resulting trust, fiduciary trust, express trust, and implied trust were by reason of said agreement and advancements created in favor” of appellant, and that it was subrogat-ed to the vendor’s lien paid off with its advancements. The court, after hearing the testimony, instructed the jury to return a verdict for appellees, which was accordingly done and judgment rendered thereon.

The evidence shows! nothing but a plain ordinary case of lending a man money, which he invested in land and improvements. Neither allegations nor proof show any kind of trust in the property or lien of any description thereon in favor of appellant. There was no agreement to give a lien on the property, but the money was loaned to J. L. Deegan not to buy land for appellant, but to buy land for himself, and it was bought for himself and the improvements made for himself. As said by Perry, in his work on Trusts (section 133):

“There must be an actual payment from a man’s own money, or what is equivalent to payment from his own money, to create a resulting trust. And the money must be advanced and paid in the character of a purchaser; for if one pay the purchase money by way of loan for another, and the conveyance is taken to the other, no trust will result to the one who thus pays the purchase money.”

The particular land was in view when the money was loaned and became the property of Deegan. The suit is founded on a contract to repay the money. “Resulting trusts are not creative of contract. They arise from the acts of the parties, and not from their agreement.” Boehl v. Wadgymar, 54 Tex. 589. In order to create a resulting trust, the payment must be made at time of purchase. Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030. In the case of Ruhl v. Kauffman, 65 Tex. 723, Kauffmian loaned Ruhl $5,000, with a view that the latter should purchase a certain lot. The lot was purchased, deed being made to Ruhl. There was no agreement that Kauffman should have a lien, and the court held the relation of vendor and vendee was not created, and that Kauffman had no lien on the property to secure his debt. To the same effect are Caldwell v. Bryan, 20 Tex. Civ. App. 168, 49 S. W. 240; Jordan v. Jordan, 154 S. W. 359; and Hatton v. Bodan Humber Co., 57 Tex. Civ. App. 478, 123 S. W. 163.

No lien could be created on land by lending money to a purchaser thereof upon his promise to convey the land to the lender if he did not repay the loan. A lien upon real estate cannot be created by a parol agreement. Poarch v. Duncan, 41 Tex. Civ. App. 275, 91 S. W. 1110; Allen v. Allen, 101 Tex. 362, 107 S. W. 528.

The land was conveyed to Mrs. Dee-gan as her separate property, the recitation in the deed being that the consideration was paid out of the separate estate of Mrs. Dee-gan. She pleaded two and four years’ limitation to the cause of action. The verbal contract was made on March 10, 1910, and the suit was filed on January 20, 1915, nearly five years thereafter. The evidence failed to show any fraudulent conduct on the part of Mrs. Deegan, but if fraud had been shown it occurred more than four yearsi before the suit wasi &nstituted. Any parol promises made by Deegan were barred, long before the suit was filed, by the statute of limitations of two years. The deed to Mrs. Deegan was placed on record on March 29, 1910. Cason v. Chambers, 62 Tex. 305; McKeen v. James, 87 Tex. 193, 25 S. W. 408, 27 S. W. 59; Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Darrow v. Sum-merhill, 93 Tex. 92, 53 S. W. 680, 77 Am. St. Rep. 833.

There was no agreement that appellant should be subrogated to the rights of the vendors under their lien reserved in their deed, and full payment of the purchase money was not made by appellant. Subro-gation may arise by agreement of the parties or by implication in equity to prevent fraud or injustice. Cason v. Connor, 83 Tex. 26, 18 S. W. 668; Oury v. Saunder, herein cited. There was no agreement as to sub-rogation in this case, and the payment of the notes extinguished the debt, and the doctrine of subrogation has no application. Fievee v. Zuber, 67 Tex. 275, 3 S. W. 273; Furche v. Mayer, 29 S. W. 1099. It is not pretended in this case that Deegan ever agreed that appellant should occupy the place of the vendors as to the lien for the purchase money. No reliance was ever placed on subrogation to the rights of the vendors, the only agreement being made before the land was bought, and that to the effect that, if the money was not realized from the estate of the father of Mrs. Deegan, Deegan would convey the property to appellant. The vendor’s lien was never mentioned between the parties.

If the facts testified to in this case by the witness, who is really the corporation, are true, it is a most remarkable affair. His testimony shows that an employe was loaned money upon a verbal promise to pay it; no note or other written evidence of the debt being taken, and the money to be invested in a home for the employé and wife. The conveyance was made to her, as her separate property; a vendor’s lien being reserved to secure deferred payments. When those deferred payments became due, a portion of them were paid off by the corporation; no effort being made to have the notes transferred to appellant, or any agreement, parol or otherwise, being made to retain the lien. Money was then furnished to pay for a house and other improvements, no effort being made to obtain a lien or even a promissory note, and it was only after nearly five years had elapsed that any effort was made to collect the debt. The whole story seems unreal and amazing, and it cannot be a subject of wonder that the court instructed a verdict for appellee. It is only after the death of Deegan, when no one is living to testify to the facts as perhaps he saw them, that the remarkable state of facts is disclosed in a courtroom. The property was many years ago dedicated to homestead purposes, and still has that character, and it should not be dismantled and destroyed by the party at interest whose testimony cannot be directly contradicted, because death has intervened and destroyed the testimony of the only other witness to the transaction. A trust cannot be created or a lien preserved upon the unsatisfactory and remarkable testimony of the interested real party who instituted this suit.

In the ease of Sullivan v. Doyle, 108 Tex. 368, 194 S. W. 136, which is relied on by áppellant, Sullivan furnished money to McKinley, an assignee of the vendee, to pay off a vendor’s lien note, with the understanding that Sullivan should hold the note for security. When the note was taken up by McKinley, the bank marked “Raid,” across its face. Doyle was the original vendee, and he sold to McKinley, and Sullivan sued both of them on the note. The Supreme Court held that, as to the vendor of Doyle who held another note, there was no subrogation for Sullivan; but, under the agreement between Sullivan and McKinley as to the note being held by Sullivan as security, the latter was subrogafed to the lien to the amount of the note. That case is not a parallel one to this case. There was no agreement as to a lien between appellant and Deegan. None of the cases cited by appellant are applicable to the case made by facts herein.

The judgment is affirmed.
      <S=Eor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    CITY OF TYLER v. CAIN.
    (No. 1978.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 23, 1918.
    Rehearing Denied May 30, 1918.)
    Constitutional Law @=^290(1) — Due Peo-CESS — CONSTBUCTION OE SIDEWALK — CHARGING Lot Owner — Benefits.
    The Legislature of the state could authorize a municipal corporation to charge the owner of a city lot with the cost of constructing a sidewalk in front of it, without reference to whether the lot was benefited by the improvement or not; such action not amounting to a taking of property without due process of law, as the act of the Legislature was referable to its police power.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Suit by the City of Tyler against Ben B. Cain. Bh-om judgment of dismissal, plaintiff appeals.
    Reverséd, and cause-remanded.
    Appellant was the plaintiff in the court below. Demurrers to the petition having been sustained, and appellant having refused to amend same, the suit was dismissed. The appeal is from the judgment of dismissal.
    The petition is too long to set out here. In it appellant alleged:
    (I)That prior to April 6, 1915, when it adopted a charter as authorized by the act approved April 7, 1913, it was a municipal corporation by virtue of a charter granted to it by a special act of the Legislature approved April 18, 1907 (Spec. Acts 30th Leg. c. 101) and amended by an act approved August 30, 1911 (Sp. & Loc. Acts 32d Leg. [1st called Sess.] c. 4). It then alleged that its city council, on May 5, 1908, in the exercise of power conferred upon them by said special act, passed an ordinance as follows:
    “Section 1. Whenever the city council shall, by a two-thirds vote of its entire membership, deem it to be the public interest to have the sidewalk or sidewalks, or any part thereof along any particular street or streets within the corporate limits of the city of Tyler built, repaired or paved, it shall give notice to the owners of property along such street or streets to build, repair or pave such sidewalks in the following manner, to wit: The said notice shall be by an ordinance regularly passed by a vote of not less than two-thirds of the entire membership of the city council ; said ordinance shall prescribe the character of the sidewalk to be built, repaired or paved, the kind of material to be used, give the grade as established by the city engineer; requiring the owners of property along, adjacent to, or abutting on such street or streets to build, repair or pave such sidewalk or sidewalks within a time to be fixed by said ordinance not longer than 90 days after the passage of said ordinance.
    “Sec. 2. When the city council contemplates the building or repairing of any sidewalk in any district in said city of Tyler it shall be the, duty of the city engineer to establish the grade of said sidewalk, if same has not been done, and make a report in writing to the city council, giving the said grade, recommending the kind of material to be used in the construction of such sidewalk, and the approximate cost of said sidewalk, and if said cost does not exceed 15 per cent, of the assessed value of the adjacent and abutting property to such sidewalk the city council may pass an ordinance as described and in the manner as prescribed in,section 1 of this ordinance, and when so passed it shall be sufficient notice of its contents and passage to the owners of property adjacent to, abutting on, or along such sidewalk, whether such owners are residents or nonresidents of said city, and it shall be the duty of such owners of property to immediately thereafter comply with the requirements of such ordinance.”
    Section 3 specifies kind, of material to be used in paving.
    Section 4 confers on owner right to choose between different kinds of paving material.
    “See. 5. Should any person, firm or corporation required by said ordinance, passed in the manner as prescribed in this ordinance, to build, repair or pave a sidewalk, fail or refuse to do so within the time designated in said ordinance; then the mayor is authorized to enter into a contract approved by the council, to have said sidewalk or any part thereof built, repaired or paved, and upon completion of said work the same shall be a lien against adjacent property for the contract price thereof, and the mayor may or may not advertise for bids for such work. When said work is done the mayor may in one general affidavit or in separate affidavits, as he may deem best, make a statement under oath showiftg the cost under said contract of building, repairing or paving the sidewalk adjacent to each separate piece or lot of property, giving the name of owner thereof as known to him, and description of the property sufficient to identify it; provided that no mistake of name or owner or description of property shall vitiate or defeat the lien on said property. Said affidavit shall be filed for record in the deed records of Smith county, Texas, and when so filed for record it shall fix the amount thereof as a preference lien against each respective piece or lot of property, and a personal demand against the true owner thereof, and shall further be prima facie evidence that all necessary preliminary things have been done to establish such lien and the amount thereof; except the passage of the original ordinance requiring said sidewalk to be built, repaired or paved as the case may be, which must be proved independently ; and when said lien has been so established it may be foreclosed in any court of competent jurisdiction; provided that in no case shall the owners of property be required to make the improvements as hereinbefore when the cost of such improvement shall be more than 15 per cent, of the assessed value of the adjacent property.”
    (2) That on December 6, 1912, its said city council passed a resolution showing that the city engineer had made an estimate of the probable cost of constructing sidewalks along part of Railroad avenue, and that said council—
    “having heard evidence and being fully advised thereon, is of the opinion and here now finds that the cost of building and constructing the-sidewalks will not materially exceed the special benefits that each respective lot or piece of property fronting or adjacent to said property of said street will derive from the building and construction of said sidewalks.”
    (3) That on said December 6, 1912, its said city council passed an ordinance establishing the grade for the contemplated sidewalk on Railroad avenue, and on the same day passed another ordinance, as follows, so far as it is material to state it:
    “Notice and opportunity to contest the question of benefit by this council having been given as required by law, and the city engineer having made an estimate showing the probable cost” of the proposed sidewalk on Railroad avenue, “and said council having evidence and having determined by resolution that the cost of building such sidewalk * * * would not materially
    exceed the special benefit to be derived therefrom to each respective lot or piece of property, and the council being of the further opinion that the special benefit to each respective lot or piece of property to be derived from the construction of such sidewalk adjacent thereto will largely exceed the cost of constructing same, and believing that the same is to the best interest of the city of Tyler, it is required that a brick sidewalk No. 2 or a cement sidewalk N'o. 2 as described in an ordinance entitled ‘The Sidewalk Ordinance,’ heretofore passed on the 5th day of May, 1908, be built and constructed at the grade heretofore established by ordinance on the following portions of the east and west side of Railroad avenue [description omitted]. The above-described sidewalk to be built and constructed on the grade as heretofore established by ordinance, and the cost and expense of constructing and building, same is to be borne and paid by the owners of each respective lot, lots or pieces of property adjacent thereto, each respective owner or owners to construct and build such sidewalk along, said street for the full distance his, hers, its or their land adjoins the same. This ordinance must be complied with within sixty days from its passage and approval. Should any person, persons, firm or corporation required by this ordinance to build and construct a sidewalk fail to so build or construct the same in the time, manner and form as by this ordinance is required, then the mayor of the city of Tyler is authorized and instructed to proceed as directed and provided by the city charter of said city, which it has adopted as proper and just, to have said sidewalk or any part thereof built and constructed and to fix the costs thereof as a lien against each respective lot or piece of property adjacent to the sidewalk so built and constructed and a personal demand against the respective owner or owners thereof in the manner and form as by the terms of said charter are permitted and provided.”
    (4) That appellee owned certain lots, describing them, which abutted on the sidewalk to be paved, and that although he had been given—
    “due notice as required by law to construct a sidewalk, in accordance with said ordinances, in front of the property owned by him, he had wholly failed and refused to do so.”
    (5) That the city therefore had the sidewalk constructed at a cost of $417.20, and fixed a lien therefor on the lots by proceedings fully set out.
    Appellant then alleged as follows:
    “If, for any reason, the court should hold that plaintiff cannot recover the stipulated amount paid by it covering the cost of constructing said sidewalk for defendant, and fixed by plaintiff as charge and lien against defendant’s said premises, under the terms of plaintiff’s said charter, or, if the court, for any reason, should hold that the legislative authority vested in plaintiff expressed in said charter provisions, and the procedure followed by plaintiff thereunder, and the notice and opportunity to be heard on special benefits given to defendant by plaintiff and the finding and declaration by plaintiff that the special benefits accruing to defendant’s said premises by reason of said sidewalk construction would exceed the cost thereof, and if, notwithstanding these things, the court should hold that such legislative authority granted to plaintiff and the said procedure followed by plaintiff are not conclusive upon defendant, then, in such event, plaintiff sues to recover from defendant such an amount, not to exceed the said sum of $417.20, as would be equal to the special benefits that accrued to defendant and to his said premises from and because of said sidewalk construction. And for further plea in this behalf plaintiff shows to the court that through and by _ the unanimous vote of its city council it determined and declared by ordinance and resolution the advisability and necessity of having sidewalks constructed along Railroad avenue in said city fronting, among others, defendant’s said premises; that plaintiff established by ordinance and resolution a grade for said sidewalk, its kind and character, material and width and the proximate cost thereof; that prior to the passage of the ordinance requiring said sidewalk construction it gave notice and opportunity to defendant to appear and contest the question of special benefits, and that it found, determined, and declared that the cost of such sidewalk Construction would not exceed the special benefits accruing to defendant’s property therefrom; that it by ordinance ordered and gave notice to defendant to construct said. sidewalk, and gave defendant a reasonable time within which to comply with said order; that defendant wholly failed and refused to construct such sidewalk, or any part thereof; that upon such failure, plaintiff’s may- or, by order of plaintiff’s city council entered into a contract which was approved by said council under and by which said sidewalk was constructed; that the contract cost thereof was the sum of $417.20, which was paid by plaintiff, and which was a reasonable, just, and proper amount and charge for such improvement; that said portion of said Railroad avenue whereon plaintiff’s said premises abuts is within two blocks of the business section of the city of Tyler, and is an important and much-used thoroughfare; that plaintiff is a populous city, and said section along it, said Railroad avenue, is thickly inhabited, and this, together with the ingress and egress in and along said Railroad avenue to and from plaintiff’s said business district, necessitates constant and great traffic of pedestrians; that the construction and maintenance of said sidewalk is and was necessary to the public health, safety, and convenience of plaintiff’s inhabitants; that said sidewalk construction and improvement greatly enhanced the value of defendant’s said promises; and that the special benefits accruing to said property from said sidewalk construction and improvement greatly exceeded the cost thereof.”
    The prayer was for judgment for $417.20 as the cost of sidewalk, for a foreclosure of the lien asserted against the lots belonging to appellee and fronting on such sidewalk, and for general relief.
    Sections 17 and 19 of article 1 of the Constitution of this state are as follows:
    “Sec. 17. No person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person.”
    “Sec. 19. No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”'
    A clause in section 1 of the Fourteenth Amendment to the federal Constitution is as follows:
    “Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
    The demurrers to appellant’s petition were sustained, it seems, on the theory that the provisions in its charter under which it claimed a right to assess against appellee the cost of building the portion of the sidewalk in front of his lots were violative of the parts of the state and federal Constitutions set out above, in that they authorized appellant to assess against the owners of lots the cost of building sidewalks in front thereof without first giving the lot owners notice and an opportunity to contest the justness of such assessment, and without regard to whether the lots were benefited by the building of the sidewalk or not.
    The provisions of appellant’s charter at which the demurrers were directed were as follows:
    “Sec. 21. The city council shall have power * * * to establish and construct sidewalks and to regulate the use and construction of the same and material used in such construction, * * * and the cost of the construction of all such sidewalks * * * shall be defrayed by the owners of the lots or block on which sidewalks may front, * * * and the cost of same, together with the cost of collection thereof, shall be good and valid charge against the owners of such lot or lots or block and a lien and incum-brance upon the lot or part of the lot, or premises upon which or in front of which such improvements may be constructed, which amount shall be assessed as a tax against the property and the owners thereof and may be collected and the lien foreclosed in any court having jurisdiction.
    “Sec. 22. The city council shall have power * * * to require and compel the owners of property to fill up, grade, gravel and otherwise improve the sidewalks in front of and adjoining their property.
    “Sec. .28. The city of Tyler is authorized and empowered to fix liens upon abutting or adjacent property and personal demands against the owners thereof for the building, improvement or repair of the sidewalk upon or adjacent to said property. The method of fixing said lien under this act shall be substantially as follows,” etc.
    F. Y. Hughes, of Tyler, for appellant. Price & Beaird, of Tyler, for appellee.
   WILLSON, O. J.

(after stating the facts as above). Unless such action was demanded by the decision of the federal Supreme Court in Tillage of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, or the decision of the Supreme Court of this state in Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. B, A. 289, 71 Am. St. Rep. SS4, the demurrers to the appellant’s petition should not have been sustained; for before those cases were decided it had been determined by the Supreme Court of this state, in conformity to the view generally prevailing, that the Legislature might authorize a municipal corporation to charge the owner of a city lot with the cost of constructing a sidewalk in front of same, without reference to whether the lot was benefited by the improvement or not. City of Galveston v. Heard, 54 Tex. 420; City of Galveston v. Loonie, 54 Tex. 517; Highland v. City of Galveston, 54 Tex. 527; Adams v. Fisher, 63 Tex. 651; Adams v. Fisher, 75 Tex. 657, 6 S. W. 772. “The power of the Legislature,” said the Supreme Court in the Adams Case, 63 Tex. 656, “to impose upon the owner of a lot in a town or city the burden of making or improving sidewalks in front of his lot is very generally recognized.”

We do not think the decision in either the Tillage of Norwood Case or the Hutcheson-Storrie Case requires a departure from the rule applicable before they were decided to cases like this one; and therefore we are of the opinion the trial court erred when he sustained the demurrers to appellant’s petition and dismissed its suit.

In the case decided by the federal Supreme Court the village of Norwood, in extending a street across land belonging to Mrs. Baker, took $2,000 worth of the land. In the exercise of power conferred by the Legislature the village then assessed back, upon land belonging to Mrs. Baker fronting on the street as opened, the $2,000 it paid her for the land it took for the street, and in addition thereto $218.58 as the expense it incurred in taking it. The result of this mode of procedure, as pointed out by the Supreme Court of Missouri in He-man v. Allen, 156 Mo. 534, 57 S. W. 559, was that the village of Norwood got the part of Mrs. Baker’s land it needed for a street for nothing, “and charged her $218.58 for taking it.” The federal Supreme Court held that the attempt of the Legislature to confer power on the village to do that was violative of the clause in section 1 of the Fourteenth Amendment to the federal Constitution set out in the statement above, and affirmed the judgment of the circuit court, holding the assessment against Mrs. Baker void, “upon the ground,” it was stated—

“that the assessment against the plaintiff’s abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation.”

In Hutcheson v. Storrie it appeared that the city of Houston, by virtue of authority conferred by its charter, had assessed against a tract of about 20 acres of land and some other lots, situated in a sparsely settled portion of the city and belonging to Mrs. Hutcheson, the cost of paving the part of the Harrisburg road on which said land and other lots abutted. The Supreme Court of this state, on the theory that the Supreme Court of the United States had held in the Tillage of Norwood Case that the Legislature of a state cannot confer upon a municipal corporation authority “to assess upon abutting property the cost of a public improvement in a sum materially exceeding the special benefits which that propexty may derive from the work,” nor authority “to make such assessment conclusive upon the owner without giving an opportunity to contest the question of benefits,” held that the .charter of the city of Houston, so far as it purported to confer áuch authority, was violative, not only of said clause in section 1 of said Fourteenth Amendment, but also of sections 17 and 19 of article 1 of the Constitution of this state, set out in the statement above, and accordingly held the assessment made against Mrs. Hutcheson’s property to be void.

The value of the Village of Norwood Case as authority has been greatly weakened by later decisions of the federal Supreme Court. French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Wight v. Davidson, 181 U. S. 371, 21 Sup. Ct. 616, 45 L. Ed. 900; Town of Tonawanda V. Lyon, 181 U. S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908; Webster v. City of Fargo, 181 U. S. 394, 21 Sup. Ct. 623, 45 L. Ed. 912; Cass Farm Co. v. City of Detroit, 181 U. S. 396, 21 Sup. Ct. 644, 45 L. Ed. 914; City of Detroit v. Parker, 181 U. S. 399, 21 Sup. Ct. 624, 45 L. Ed. 917; Chadwick v. Kelly, 187 U. S. 540, 23 Sup. Ct. 175, 47 L. Ed. 293; Railway Co. v. Barber Asphalt Paving Co., 197 U. S. 430, 25 Sup. Ct. 466, 49 L. Ed. 819. The authorities on the question, including the Village of Norwood Case, were reviewed in the opinion of the court in the first one of the cases just cited. The court stated that the ruling in the Village of Norwood Case had been misunderstood, and strongly intimated that the holding in that case was justified by its peculiar facts alone, and that it should not be regarded as authority for determining cases with different facts. As a result of the careful consideration given the question, the court held, quoting the syllabus:

“The apportionment of the entire cost of a street improvement upon the abutting lots according to their frontage, without any preliminary hearing as to benefits, may be authorized by the Legislature, and this will not constitute a taking of property without due process of law.’’

Based, as it was, entirely on the Village of Norwood Case, the force of Hutcheson v. Storrie as authority also is, of course, weakened by the ruling in the later cases decided by the federal Supreme Court, cited above, and it has been suggested, with good reason, we think, that it, too, should be limited to its particular facts. Texas Bit-ulithic Co. v. Abilene Street Ry. Co., 166 S. W. 437; and see Lentz v. City of Dallas, 96 Tex. 258, 72 S. W. 59; City of Harrisburg v. McPherran, 200 Pa. 343, 49 Atl. 988; King v. City of Portland, 38 Or. 402, 63 Pac. 2, 55 L. R. A. 812.

But, whatever view may be taken of the Village of Norwood Case, when the question is as to the power of the Legislature to authorize a municipal corporation to charge the cost of opening a street against the owner of the land taken for the street, or of the Hutcheson-Storrie Case, when the question is as to the right of the Legislature to confer upon a municipal corporation power to charge against the owners of lots abutting on it the cost of paving a street, we think the act of the Legislature, conferring upon the city of Tyler power to charge against lots abutting on a street the cost of building a sidewalk in front thereof, was referable to its police power, and therefore was not violative of either the clause in question of the federal Constitution or sections 17 and 19 of article 1 of the state Constitution. Black’s Constitutional Law, § 156; Cooley on Taxation, 1128. In the work last cited Judge Cooley said:

“The cases of assessments for the construction of walks by the side of the streets in cities and other populous places are more distinctly referable to the power of police. These footwalks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is customary to confer by municipal charters full authority upon the municipalities to order the walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots at their own expense-, within a time limited by the order for the purpose, and, in case of their failure to so construct them, to provide that it shall be done by the public authorities, and the cost collected from such owners or made a lien upon their property. When this is the law the duty must be looked upon as being enjoined as a regulation of police, because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use. Upon these grounds the authority to establish such regulations has been supported with little dissent. No doubt this requirement is sometimes in a measure oppressive, since the actual cost may exceed the pecuniary advantage to the lot owner; but this, in the case of police regulations, is never a conclusive objection.”

The judgment is reversed, and the cause is remanded for a trial on its merits.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. STINSON.
    (No. 1971.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 16, 1918.
    Rehearing Denied May 23, 1918.)
    1. Triad <S=3251(3) — Instructions—Issues.
    AVhere a shipper claims damages to stock for time confined in pens because carrier did not ship them on a certain train, it was error to instruct generally that plaintiff’s measure of damages would be the difference in the market value in the condition they were when they reached the pens and the condition they should have been in had there been no delay, where shipper had put the stock in the pens the day before they were to be shipped.
    2. Commerce <§==>34 — Interstate Commerce-Continuous Shipment — Charges.
    Where shipper contracted with one railroad in Arkansas to ship stock to Texarkana, where he received them personally and drove them across the state line, and entered into contract with another railroad to ship them to another point in Texas, the latter railroad could not claim that there was a continuous shipment so as to entitle it to the interstate rate.

      Appeal from Eranklin County Court; O. L. Reaves, Judge.
    Suit by J. C. Stinson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed in part, and reversed and remanded in part.
    As made by bis pleadings, appellee’s suit was for $250 damages be claims be bad suffered because of injury to 158 bead of cattle owned by bim and delivered by bim to appellant at Texarkana, Tex., on the afternoon of January 12, 1917, for transportation to Mt. Vernon, Tex. He alleged that appellant in the exercise of due care should have transported the cattle to Mt. Vernon in a train which left Texarkana at 6:40 o’clock of the morning of January 13th, but that instead it negligently failed to send them in that train, and that as a consequence the cattle had to remain in appellant’s pen at Texarkana until 7:02 o’clock of the afternoon of said January 13th. He further alleged that because of the severity of the weather while they were confined in said pen from 6:40 a. m. to 7:02 p. m. of said January 13th the cattle lost flesh, and, becoming restless, hooked and thereby injured each other. The finding of the jury and judgment of the court were in appellee’s favor for the full amount he sued for.
    By a cross-action appellant sought a recovery of $284.76 against appellee. As a basis for such a recovery it alleged that ap-pellee, having the cattle at Arkadelphia, Ark., for shipment to Mt. Vernon, Tex., instead of shipping them directly from the former to the latter place, shipped them from the former by way of Hope and Ashdown to Texar-kana, Ark., and then shipped them from Texarkana, Tex., to Mt. Vernon. Appellant alleged that the difference between the interstate rate chargeable on such shipments when made directly from Arkadelphia, Ark., to Mt. Vernon, Tex., and the rate chargeable against and paid by appellee on the shipment as actually made by him was said sum of $284.76. And it further alleged that appel-lee shipped the cattle as he did for the purpose of evading the payment of the interstate rate on such shipments from Arkadel-phia, Ark., to Mt. Vernon, Tex., and therefore was liable for the difference between that rate and the rate paid by him on the shipment as actually made. The finding of the jury and judgment of the court were against the recovery sought by appellant.
    J. M. Burford, of Mt. Pleasant, King & Estes, of Texarkana, and E. B. Perkins, of Dallas, for appellant. Wilkinson & Davidson, of Mt. Vernon, for appellee.
   WILLSON, C. J.

(after stating the facts as above),

While it appeared that the cattle were confined in appellant’s pens at' Tex-arkana, Tex., from 5:30 o’clock of the afternoon of January 12 to 7:02 o’clock of the afternoon of January 13th, under conditions which might have caused injury to them, ap-pellee did not claim in the evidence that appellant was liable to him for any injury to them except such as they suffered from being confined in the pens from 7:45 o’clock of the morning of said January 13th to 7:02 o’clock of the afternoon of that day. Notwithstanding this, the court in the fifth paragraph of his charge told the jury that, if they found in appellee’s favor, the measure of his damages would be the difference in the market value of the cattle in the condition they were in when they reached Mt. Vernon and “the condition they should have been in had there been no delay at Texar-kana, Tex.” As the instruction authorized the jury, if they found in appellee’s favor, to include in the amount of their verdict a sum representing damages they might believe ap-pellee suffered because of injury to the cattle while confined in the pens from 5:30 o’clock p. m. of January 12th to 7:45 o’clock a. m. of January 13th, it plainly was erroneous. And the error is one which requires a reversal of the judgment so far as it is in appellee’s favor for damages; for it cannot be said that the amount thereof does not include damages found by the jury on account of injury to the cattle for which appellant admittedly was not liable.

Neither the pleadings nor the evidence made an issue as to negligent delay on the part of appellant in furnishing cars in which to ship the cattle, nor as to negligence on appellant’s part with reference to the “facilities” it furnished for shipping the cattle. Therefore' part of the charge of the court was inapplicable to the case. Whether appellant was liable to appellee or not depended upon: (1) Whether it was guilty of negligence in not sending the cattle in the train which left Texarkana for Mt. Vernon at 7:45 o’clock a. m. of the morning of January 13th; and (2) if it was, whether such negligence was a proximate cause of injury to the cattle.

The questions made by the assignments numbered 6, 10, 17, 18, 20, 21, 22, 25, 30, and 31, challenging the correctness of the judgment so far as it is in appellee’s favor for damages, have, in effect, been disposed of by what has been said. Of the assignments remaining and directed to that part of the judgment, we think those numbered 4, 27, and 28 should be sustained. .The others either should be overruled, because without merit, or ignored, because not likely to arise on another trial.

We think the judgment was not erroneous so far as it denied appellant a recovery on its cross-action, and therefore overrule the assignments numbered 7, 8, 9, 23, and 24. The theory upon which the recovery was sought was that the shipment was a continuous one from Arkadelphia, in Arkansas, to Mt. Vernon, In Texas, and therefore was subject to the interstate rate on such shipments from the former, to the latter place, which, it was shown, was $284.76 in excess of the amount of the freight paid by appellee. But it conclusively appeared from the testimony that the shipment was not a continuous one from Arkadelphia to Mt. Vernon. On the contrary, it appeared that, under a contract between appellee and the St. Louis, Iron Mountain & Southern Railway Company, the cattle were transported oyer said company’s line of railway, the St. Louis & San Francisco Railway, and the Kansas City Southern Railway from Arkadelphia to Texarkana, Ark., where they were actually delivered to appellee, who afterwards drove them to appellant’s pens in Texarkana, Tex., from which point, under a contract between appellee and appellant, they were transported to Mt. Vernon. It may be that the shipment was an interstate one between Arka-delphia and Texarkana, Ark., because of the fact that it passed through Texas in going from the former to the latter place (Hanley v. Railway Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333; Railway Co. v. Asher, 171 S. W. 1114; Howard v. Railway Co. [Mo. App.] 184 S. W. 906; Barnes’ Interstate Transportation, § 28); but it is clear under the authorities that it was not such a shipment between Arkadelphia and Mt. Vernon (Railway Co. v. Wood, 105 Tex. 178, 146 S. W. 538; Railway Co. v. Pace, 184 S. W. 1052; Railway Co. v. Mathis, 194 S. W. 1135; McFadden v. Railway Co., 241 Fed. 562, 154 C. C. A. 338; Barnes’ Interstate Transportation, § 557). Appellant did not claim in its cross-action that the shipment as between Arkadelphia and Texarkana, Ark., was interstate, and that a rate different from the one appellee paid controlled such shipments.

The judgment will be affirmed so far as it is against appellant on its' cross-action, and will be reversed so far as it is in appellee’s favor for damages, and the cause will be remanded for a new trial on that issue.
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text:
    TEXAS & PAC. RY. CO. v. ELDRIDGE CARTER & SON.
    (No. 1983.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 10, 1918.
    Rehearing Denied June 6, 1918.)
    Damages <§=^167(4) — Pleading—Ad Damnum —Interest.
    Plaintiffs’ petition, alleging their damages to be value of hay burned by defendant railroad, to wit, $5,312.50, “together with interest from said 22d day of December, 1915, at 6 per cent, per annum,” authorized recovery of value of hay as alleged and interest in sum as computed, though amount in dollars and cents was not ' pleaded.
    Appeal from District Court, Lamár County; A. P. Dohoney, Jr., Judge.
    Suit by Eldridge Carter & Son against the Texas & Pacific Railway Company. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    In their petition appellees (plaintiffs below) alleged that on December 22, 1915, 625 tons of hay belonging to them, of the value of¡ $8.50 per ton,' were destroyed by fire, which appellant negligently permitted to escape from one of its locomotive engines, “to the damage,” quoting, “of the plaintiffs in the total sum of '$5,312.50, together1 with interest from the said 22d day of December, 1915, at 6 per cent, per annum,” for which appellees prayed judgment. At the trial appellant admitted it was liable to appellees for the loss of the hay, but denied that the quantity destroyed was as much as 625 tons and thát the value of the hay destroyed was as much as $8.501 per ton. The court found in accordance with' appellees’ contention, however, and rendered judgment in their favor for $5,312.50 as the value of 625 tons at $8.50 per ton, and for $554.10 as the interest on said $5,312.50 from said December 22, 1915, the date when the hay was destroyed.
    Head, Dillard, Smith, Maxey & Head, of Sherman, and Geo. Thompson, of Dallas, for appellant. Burdett, Connor & Dailey, of Paris, for appellees.
   WILLSON, C. J.

(after stating the facts as above). It is insisted that the testimony did not warrant the finding that there was as much as 625 tons of hay destroyed, nor the finding that the hay destroyed was worth as much as $8.50 per ton. Having read and considered all the testimony in the record, we overrule the contention. There was testimony which, if believed by the court, as evidently it was, authorized each of the findings.

And we think the contention made that the pleadings did not warrant the judgment in appellees’ favor, so far as it was for interest on the value of the hay, also should be overruled. As is noted in the statement above, appellees alleged their damages to be the value of the hay, to wit, $5,312.50, “together with interest from said 22d day of December, 1915, at 6 per cent, per annum.” It is urged that the allegations did not authorize a recovery by appellees of a sum exceeding $5,-312.50. “It is our contention,” appellant says in its brief, “that it is necessary for a plaintiff to allege in dollars and cents the amount of damage that he claims, and that he is concluded by the amount thus claimed; that, while it is unnecessary to allege interest as an element of damages in a case of this character, such an allegation, to be of any force and effect, must allege a specific sum, or else it must be included in the general sum claimed.”

Appellant cites Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200, Railway Co. v. McMillan, 37 Tex. Civ. App. 483, 84 S. W. 296, and Telegraph Co. v. Garner, 83 S. W. 433, as cases supporting its contention.

The Garner Case was decided by the Court of Civil Appeals on the authority of the Addison Case, and the McMillan Case was decided by the same Court of Civil Appeals on the authority of the Garner Case.

The Addison and Garner Cases were unlike this one. In the Addison Case the plaintiff sought a recovery on account of injury to certain horses. In his petition he alleged the damages to be $130, saying nothing about in-interest thereon. The verdict in his favor was for $130, while the judgment was for $130 and interest thereon from the date of the injury to the horses. The Supreme Court, in answering a question certified to it, held, of course, that the judgment was unauthorized, so far as it was for a sum in excess of that sued for by the plaintiff and found in his favor by the jury. In the Garner Case the plaintiff sued for $99.99 as the damages he had suffered by the negligent failure of defendant to deliver a telegram. He did not in his pleading seek a recovery of interest on the $99.99. There was a judgment in his favor for $99.99. The point decided by the Court of Civil Appeals was that the plaintiff was entitled to recover only $99.99, and not $99.99 and interest thereon, and that therefore, the amount in controversy between the parties being less than $100, it was without jurisdiction of the appeal.

The MicMillan Case was like this one, except that it originated, as did the others mentioned, in a justice court. There the plaintiff sued for $100 as the value of a mule negligently killed by appellant, and by his pleadings also sought a recovery of interest on the $100. The judgment was in his favor for $106.50. On the appeal the court sustained a contention made by the defendant that the plaintiff under his pleadings was not entitled to recover anything in excess of $100.

The decisions in the Addison and Gamer Cases were plainly correct. The plaintiffs in those cases, not being entitled to recover interest eo nomine, were not entitled to recover sums in excess of those they severally sued for. But that was not true of the plaintiff in the McMillan Case. He not only by his pleadings sought a recovery of $100 as the value of the horse, but also sought a recovery, as further damages he suffered, of interest on the $100. The conclusion that the $100 the plaintiff sued for was the limit of the recovery which could be awarded him, notwithstanding he also sued for interest thereon, was, as stated, based on the Garner Case, where the Court of Civil Appeals, it seems to us, misconstrued the Addison Case. In that case the Supreme Cburt, after answering questions certified to it, with reference to another question, a determination of which, it stated, was not necessary to a decision of the case, said:

“In cases of this character interest may be allowed by way of indemnification, as a part of the damages, but is never allowed eo nomine; and therefore, in order to recover interest, the damages claimed in the pleadings must be laid in a sufficient amount to cover the loss at the time of the accrual of the cause of action and the interest thereon from that date to the time of the trial. In this case the damages claimed were only $130. The recovery was necessarily limited to that amount.”

The Court of Civil Appeals, it seems, understood Judge Gaines to mean that interest was not recoverable as damages unless it was included in a sum specified by the plaintiff in his pleadings as the sum he sued for. That Judge Gaines did not mean that clearly appears, we think, when it is remembered that the court was not called upon by the record before it to determine such a question, and when it is further remembered that the court had already determined the question to the contrary of appellant’s contention, in an opinion also by Judge Gaines, in Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031. But if the language used in the Addison Case should be construed to mean what the Court of Civil Appeals in the Garner and McMillan Cases understood it to mean, we nevertheless would not regard the Addison Case as authority requiring us to sustain appellant’s contention, for two reasons: First, because, as before stated, the record in the Addison Case did not make the question presented by the record before us; and, second, because the question before us was in effect determined by the Supreme Court to the contrary of appellant’s view of it in Railway Co. v. Fromme, 98 Tex. 459, 84 S. W. 1054, when the plaintiff sought a recovery of $95 as the damages he suffered by the negligent failure of defendant to furnish cars in which to ship certain cattle. He also prayed for interest on the $95. After dismissing an appeal prosecuted by the railway company for a judgment the plaintiff obtained against it, for lack of power to determine it, on the theory that the amount in controversy was only $95, the Court of Civil Appeals which decided the Garner and McMillan Cases certified a question to the Supreme Court as follows:

“Does the pleading of the plaintiff state an amount within the jurisdiction of this court?”

The Supreme Court answered:

“The statement which accompanies the certified question in this case fails to show when the cause of action accrued, or the date of the trial in the county court; hence we are unable to answer the question categorically, but reply thereto that if, at the date of the trial in the county court, 6 per cent, per annum added to the $95 stated as damages, would have amounted to more than $100, then either party had a light to appeal from that judgment, because the amount in controversy was the full sum that the plaintiff could recover under the allegations of his petition” — citing Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Schulz v. Tess-man, 92 Tex. 488, 49 S. W. 1031.

The Fromme Case has been followed by others (Railway Co. v. Hunt, 38 Tex. Civ. App. 400, 85 S. W. 1168; Railway Co. v. Everett, 95 S. W. 1085; Railway Co. v. Underwood, 98 S. W. 453; Id., 100 Tex. 284, 99 S. W. 92, 123 Am. St. Rep. 806; Railway Co. v. Womble, 58 Tex. Civ. App. 33,124 S. W. 111; Railway Co. v. Rayzor, 58 Tex. Civ. App. 544, 125 S. W. 619; Pecos & N. T. R. Co. v. Womble, 106 Tex. 544, 172 S. W. 1103; Railway Co. v. Witherspoon, 166 S. W. 502), and we think the question presented by the appellant here should be regarded as settled against its contention.

The judgment is affirmed.
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