text:
    WELCH v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 11, 1913.)
    1. Perjury (§ 6) — '“False Swearing”— What Constitutes.
    The offense of false swearing is consummated when accused signs and swears to a false affidavit, even though he does not use the affidavit for the purpose for which it was intended.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 7-17; Dee. Dig. § 6.]
    2. Perjury (§ 26) — Prosecution — Indictment.
    An indictment for false swearing, alleging that the affidavit was unlawfully, deliberately, corruptly, and willfully made, is not insufficient, even though not using the word “voluntary” ; the other language showing that the affidavit was voluntarily made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 90-94; Dec. Dig. § 26.]
    3. Perjury (§ 15) —False Swearing —Defenses.
    In a prosecution for mating a false affidavit, it is no defense to show that accused’s attorney advised or suggested to him that he make such affidavit as a means of procuring a continuance.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 62; Dec. Dig. § 15.]
    4. Perjury (§ 15) — False Swearing — Defenses.
    In a prosecution for uttering a false affidavit, the fact that accused was suffering from an illness at the time does not present the issue that it was not willfully and deliberately made.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. § 62; Dec. Dig. § 15.]
    5. Perjury (§§ 5, 15) — “False Swearing”— What Constitutes Offense — “Deliberately” — “Willfully.”
    If any person deliberately and willfully, under oath legally administered, makes a false statement by a voluntary declaration on affidavit not required by law, he is guilty of false swearing, but such a statement, made through inadvertence or under agitation or by mistake, does not constitute false swearing; the ex-' pressions “deliberately” and “willfully” meaning “made after meditation and with an evil intent.”
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 4 — 6, 35, 62; Dec. Dig. §§ 5, 15.

    For other definitions, see Words and Phrases, vol. 3, pp. 2670, 2671; vol. 2, pp. 1951-1955; vol. 8, pp. 7632, 7468-7481.]
    6. Perjury •(§ 37) — Trial—Instructions.
    In a prosecution for false swearing to a false affidavit, intended by accused to be used as a basis for a continuance, but was not, it was not improper for the court to charge the jury that the affidavit was not made in the course of a judicial proceeding.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 13A-138; Dec. Dig. § 37.]
    7. Criminal Law (§ 823) — Instructions — Error Cured by Giving Other Instructions.
    'In a prosecution for uttering a false affidavit, where the court charged on the question of insanity, informing them that, if accused was' of unsound mind and not cognizant of the facts stated in the affidavit, it could not have been willfully, deliberately, and corruptly made, the giving of another charge informing them that the affidavit was sufficient if its falsity was legally proved to warrant a conviction was not prejudicial error.
    _ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823. J
    8.Criminal Law (§ 331) — Triai>-Burden of Proof — Insanity.
    In a criminal prosecution where the defense was insanity, and accused stated that he was found to be insane after the offense, but had recovered his reason at the time of the trial, and there was nothing to disclose his insanity at the time of the offense, the burden was upon accused to establish by preponderance of the evidence that he was of unsound mind at the date of the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 742-744; Dec. Dig. § 331.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Tom Welch was convicted of false swearing, and he appeals.
    Affirmed.
    Shurtleff & Black, of Hillsboro, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of false swearing, and his punishment assessed at three years’ confinement in the penitentiary. There are a number of complaints in regard to admitting certain testimony, but, if any bills of exception were reserved or objections made during the trial, it is not manifested by the record before us, and under such circumstances these grounds cannot be considered.

The facts would show that appellant was arrested, charged with petty theft, in the county court of Erath county. Thereafter he appeared before S. H. Davis, a justice of the peace in Erath county, on the 11th day of September, represented himself to be G. I. Gambell, and made an affidavit that he (Gambell) had sold the onions with which appellant was charged with stealing to appellant, Tom Welch. Appellant insists that would constitute perjury and not false swearing. Two days later, on the 13th, when his case was called for trial, he filed an application to continue the case on account of the absence of Gambell, but he did not attach this affidavit to the application, but he says his lawyer told him they might call Mr. Davis as a witness, and he would identify him (appellant) as the person who represented himself to be Gambell, but that he and his attorney prepared another statement in substance the same, and he (appellant) signed Gambell’s name to it, and his attorney signed the name of G. J. Howard as a witness to Gambell’s signature. The record demonstrates that the affidavit made by appellant before Mr. Davis was not attached to the motion for a continuance nor used in the trial, but was found on his person when he was arrested charged with this offense. The offense of false swearing was committed and became a completed offense when he signed and swore to the affidavit before the justice of thé peace.

There is no merit in the contention that the indictment does not sufficiently allege that the affidavit was voluntarily made. It does charge in specific terms that it was “unlawfully, deliberately, corruptly, and willfully made”; and, while the word “voluntary” is not used, yet other language used in the indictment conveys that meaning and is subject to no other construction.

It would be no defense that he consulted with an attorney and made the affidavit in pursuance of a suggestion of the attorney. If he deliberately made a false affidavit, knowing it to be false, that one suggested this as a means of getting the case dismissed or continued would be no defense, and the court did not err in refusing the special charge presenting that theory.

Neither would the fact that defendant was suffering at the time from a' bowel trouble, under the evidence on this trial, present an issue that it was not willfully and deliberately made. The defendant’s testimony tended to raise the issue that he might have been insane at the time, and the court on this issue instructed the jury: “Among other defenses set up by the defendant is that of insanity; that is, that at the time the alleged false affidavit was made, if he did make it, he was of unsound mind, and therefore was not cognizant of the facts stated in said affidavit, and that same was not therefore willfully and deliberately and corruptly made. Upon this issue you are instructed that the law presumes every man sane until the contrary appears, and that the burden is on the defendant to establish his insanity by a preponderance of the evidence. Now if you believe from a preponderance of the evidence in this case that at the time the defendant made the alleged false affidavit before S. H. Davis, which has been exhibited in evidence before you, if he did make it, he was laboring under such a disease of mind that he did not know the act he was doing was wrong, then you will acquit him.”

The court also instructed the jury: “In the first place then you are instructed that our law provides that, if any person shall deliberately and willfully, under oath legally administered, make a false statement by a voluntary declaration or affidavit which is not required by law or made in the course of a judicial proceeding, he is guilty of false swearing, and shall be punished. A false statement, made through inadvertence or under agitation or by mistake, is not false swearing. No person shall be convicted of the offense of false swearing, except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as t'o the falsity of the alleged false statement under oath. * * * The term ‘deliberately,’ as used in this charge, means that the statement must have been made with deliberation and after meditation, and that it was not made hastily, through inadvertence, or by mistake. The term ‘willfully,’ as herein used, means that the statement must have been made with evil intent and legal malice and without reasonable grounds for believing it to have been lawful, and without legal justification.”

It is thus seen that the court did correctly define the offense, and the criticism that the court did not instruct that it must have been a “voluntary” affidavit is not borne out by the record.

After setting out the affidavit the court instructed the jury: “I charge you, gentlemen, that said alleged false affidavit was not required by law, and was not made in the course of a judicial proceeding, and is sufficient, if its falsity is legally proven to your satisfaction beyond a reasonable doubt to warrant a conviction of the defendant.” It was not inappropriate for the court to tell the jury, as a matter of law under the facts, that the affidavit in question was not made in the course of a judicial proceeding; and while the latter part of this paragraph may be subject to criticism, and if it stood alone in the charge might be error, yet the court, as herein before shown, appropriately presented the only defense offered by appellant, that he was insane, and it is not such error as will necessitate a reversal of the case. If appellant was sane, he is positively identified as the man who made the affidavit signing another’s name to it; its absolute falsity is shown, no effort being made to show that it spoke the truth. Appellant admitted he knew no such man as Gambell; had bought no onions from him; and in his written confessions introduced in evidence he himself left himself no defense other than insanity.

While appellant states that subsequent to this time he had been adjudged insane, yet he states he had recovered his mental status at the time of this trial; and, as there is nothing to disclose that at the time of the trial for insanity there was any evidence offered nor finding that it covered the period in which he is alleged to have committed this offense, the facts do not bring it within the rule announced in the case' of Witty v. State, 153 S. W. 1146, decided at this term of court, and the court did not err in instructing the jury that the burden was on defendant to show by a preponderance of the testimony that he was of unsound mind at the date of the commission of the offense.

The judgment is affirmed.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    WALKER v. FINNEY.
    (Court of Civil Appeals of Texas. Dallas.
    May 17, 1913.
    Rehearing Denied June 7, 1913.)
    1. Trial (§ 139) — Questions foe Juey — Directed Verdict.
    The court is authorized to take a case from the jury only when the evidence is of such a conclusive character that there is no room for ordinary minds to differ in the conclusion to be drawn from it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. § 139.]
    2. Parent and Child (§ 2) — Custody.
    In an action between a father and another over the custody of the father’s minor child, the paramount consideration is the interest and welfare of the child; but, the father being the natural guardian, and as such entitled to the custody of his child, _ it will be awarded him unless he is shown incompetent to have charge of it, or it be demonstrated that the welfare of1 the child demands a different disposition.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.*]
    3. Parent and Child (§ 2) — 'Custody—Actions— Evidence.
    In an action by a father against. his. deceased wife’s sister for the custody of his minor child, evidence as to whether it was for the benefit of the child to be in the custody of his father held to raise a question for the jury.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.]
    4. Parent and Child (§ 2) — Custody—Affections of Child.
    In an action by a father to reclaim the custody of his minor child, whom he had not supported or had any relations with until after the death of the child’s mother, when it was some 11 years old, the affections of the child may be considered in determining the question of its disposal.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dee. Dig. § 2.]
    5. Parent and Child (§ 2) — Custody of Child — Conclusiveness of Judgment — Matters Concluded.
    An order of the county court, appointing a father guardian of the estate and person of his minor child, who inherited, the proceeds. of a life policy from his mother,, is not conclusive as to the custody of the child, and will not, despite the provision of the Constitution that the district court shall have only appellate jurisdiction over the county court in matters of guardianship, preclude that tribunal from determining the right of the father to the custody of the child, for the statute expressly declares that where one of the parents is dead, the survivor is the natural guardian of the minor children, and entitled to be appointed guardian of their estate, and therefore, although the county court is given jurisdiction of all matters of guardianship, that portion of its order making the father guardian of the child’s person is coram non judice.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 4-32; Dec. Dig. § 2.]
    Appeal from District Court, Henderson County; B. H. Gardner, Judge.
    Action by R. H. Finney against Mrs. Lilia Walker. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    E. P. Miller, Jo. A. McDonald, and W. L. Faulk, all of Athens, for appellant. Richardson, Watkins & Richardson, of Athens, for appellee.

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

   TALBOT, J.

Appellee Finney instituted this suit against appellant for the custody of his minor son, Harry Boyett Finney, alleged to be unlawfully withheld by the appellant, Mrs. Lilia Walker. The case was called for trial, a jury impaneled, and the evidence heard, at the conclusion of which a peremptory instruction was given by the court, directing á verdict in favor of the appellee. The child in controversy is the son of the appellee by his former wife, Eva Finney, from whom appellee had been divorced, and who, a short time before this proceeding was instituted, died in the state of Mississippi. The appellant and Mrs. Eva Finney were sisters, and just before the latter died she requested orally, and perhaps in writing, that appellant take the child, Harry Boyett Finney, who was then about 10 or 11 years of age, to raise and educate. It seems that in obedience to this request the appellant, Mrs. Walker, who was present at her sister’s death, but who lived in Henderson county, Tex., took charge of Harry and brought him to her home. It was very shortly after this that appellee instituted this suit.

The first assignment of error presents the principal question arising on the appeal, and is that “the court erred in peremptorily instructing the jury to return a verdict for the plaintiff, or relator, R. H. Finney, because the pleadings and evidence raised material issues of fact, which it was the sole province of the jury to decide.” This assignment must be sustained, we think, under the familiar rule invoked by appellant to the effect that the court is authorized to take the case from the jury only when the evidence is of such a conclusive character that there is no room for ordinary or reasonable minds, seeking the truth, to differ as to the conclusion to be drawn from it. Such was not in our opinion the conclusive character of the evidence in this ease. On the contrary, it was sufficient to take the case to the jury for their determination of the paramount issues in it, namely, whether it was for the best interest of the infant to take it from the custody of its aunt and foster parent and give it to its father. The law applicable to contests of this character is too well settled for discussion. It has been uniformly held that the paramount consideration is the interest and welfare of the child; but that, as the father is the natural guardian of his child, and as such entitled to the custody of its person, it Will, in a contest by him, be awarded to him, unless he is shown to be for some reason unworthy or incompetent to take charge of the child, or unless the welfare of the child for some special reason demands a different disposition. The evidence will not be quoted in detail, or any opinion expressed as to its weight or credibility, but in explanation simply of our conclusion and ruling, we will state that appellant offered testimony tending to show that the mother of the child in question had insured her life for its benefit in the sum of $1,000 or more, paying herself, unaided by the appellee, all the premiums; that the relator abandoned said child when it was only about 11 months old, and has never contributed or offered to contribute anything for the support and education of said child; that the child at the date of the trial of this case was 11 years old; and that appellee has had no communication whatever with said child since its infancy, and that the appellant and her sister, the mother of the child, lived together many years and worked together, and that the child was in the house with appellant, where it has been kept with her own children jointly with its mother, except for about one year before the death of its mother, and that the child knew practically no difference between its mother and the appellant, Mrs. Walker; that appellant was at the bedside of her sister when she died in the state of Mississippi, and at the dying request of her sister took charge of the child and brought him back to Texas to her home in Henderson county; that the child is nearly 12 years old, and is unwilling to be separated from his home with appellant and placed in the custody of his father; that his father has never shown any affection for him or given anything to help him along in life; that his father has married again, and now has a young wife who has children of her own; that for about two years appellee lived in the same town with his child, neither recognizing nor making any inquiries about him whatever; and that he had been separated from him about 10 years. He testified : “No, I have never spoken to the child during all these years; never have had anything to do with him at .all. I don’t know whether the child lived here or in Malakoff while I stayed here in Athens; if it was in Malakoff I never went to see it; if it was here in Athens I never went to see it, and I never saw it on the streets of Athens while I lived here; it might be that I could have met the child in the streets here and not have known it.” There was further testimony tending to show that before and after the appellee married the mother of the child, and while he lived in the town of Mal-akoff in Henderson county, Tex., his reputation for truth and veracity and for licentiousness and immorality in that community, from the time he was 18 or 20 years old, was bad. A number of witnesses, claiming to have known him from his childhood^ testified to that effect; that such was his reputation while he lived with the mother of the child whose custody he now seeks to recover; that immediately upon hearing of the death of the child’s mother he applied for letters of guardianship of the person and estate of the child, and warned the insurance company not to pay the life insurance due the child to any one except himself. There was further testimony to the effect that the child, while in the custody of Mrs. Walker, the appellant, is surrounded by good moral and religious influences, and that he regards her and loves her as a mother; that this love is thoroughly reciprocated by Mrs. Walker and that she is not only willing, but anxious and able to rear and educate the child. The child testified in part: “I am 11 years old, will be 12 next August. Been going to school 3 or 4 years. I am in the low fifth grade. I will go to school here this fall. Auntie there (appellant) has been taking care of me. I want to live with Auntie, Mrs. Walker. My father did not take any notice of me when I went to Greenville. I lived here in Athens right down there on the corner when my father worked in the storé here in Athens. If I ever saw him here I did not know him. I understand he was here, he never took any notice of me that I know of, he never did give me anything or send me anything that I know of. I would walk along in front of the store where he was at work. I would go to the telephone, where Mama and Auntie were. Auntie treats me as good as Mama did, and I have everything I want; she is kind to me.” There was testimony in contradiction and rebuttal of the foregoing testimony offered by appellant, and appellee further offered in evidence a certified copy of a judgment rendered in the county court of Hunt county, Tex., appointing appellee guardian of the person and estate of the child in controversy, but our conclusion is that the evidence as a whole was sufficient to require the submission of the all-important and vital question, as to whether or not the interest and welfare of the child would be better sub-served by placing him in the custody of his father, to the jury for their decision, and that the court’s failure to do so is reversible error.

While, as said by this court in Parker v. Wiggins, 86 S. W. 788, the affection cherished for the child by those to whom its care and nurture have been intrusted from his earliest infancy, nor the attachment of the child for his foster parents by reason of kind treatment and association, cannot ordinarily be given serious consideration in determining the vital question of the child’s interest and permanent welfare, yet, if the effort to reclaim him has been delayed until the child has reached the age when the presumption may be indulged that he is capable of forming and has formed a lasting affection for those to whom he is indebted for reciprocal love and maintenance, and that the sundering of such ties will subject serious hazard to its interest and happiness, the same may be considered in determining tbe question.

But appellee contends, in effect, that as the record shows that prior to the institution of this suit appellee was appointed guardian of the person and estate of the child in controversy, and that since the law specifically gives to guardians the charge and custody of the person of the ward, his custody cannot be taken away from the guardian by any other court, and not by the district court, which under the “Constitution shall only have appellate jurisdiction over county court in all matters of guardianship.” This contention, when dealing with guardians other than the father or mother of the minor, is probably correct, but not so, as in this case, where the right of the father as the surviving parent is involved and denied in a proceeding of this character. In such case, the father being the natural guardian of the minor child, no judgment of the county court can give him any greater right or authority over the person of such child or children than he possesses without it. He is such guardian by reason of his relation to the child without appointment by the county court with all the rights and power of control that the word implies. The statute expressly declares that: “Where one of the parents is dead the survivor is the natural guardian of the person of the minor children and entitled to be appointed guardian of their estate.” Rev. Civ. St. 1911, art. 4070. - In such a ease no provision is made by statute for the appointment of the father as guardian of the person of his child. He is declared to be such guardian, and as no necessity exists for his appointment by the probate court, no authority is given by statute therefor, but by virtue of his relation to the child, which confers upon him the guardianship of its person, a preference is given to him by statute to become the guardian of its estate. We conclude, therefore, that the order of the county court of Hunt county appointing appellee guardian of the estate of his son, Harry Boyett Finney, was within the power and jurisdiction of that court and effectual for that purpose, but that in so far as it attempted to constitute and appoint appellant guardian of the person of his said son was without force and effect, especially as affecting the rights of the parties to the custody of the child in this controversy. Manifestly this is true, because it is clear, and cannot successfully be denied, that if in a proper proceeding in a court of competent jurisdiction the order appointing appellant guardian of the person of the child was set aside and annulled, he would still be its guardian, and as effectually so as if-the order remained in full force and effect. The authorities cited by counsel for appellee in support of their contention that his appointment as guardian of the person of his son by the county court of Hunt county was conclusive of his right to recover the child’s custody in this suit have been examined, with the conclusion reached that they are not in point. The contention of appellant that the order of the county court of Hunt county appointing appellee guardian of the person of his son was immaterial to the issue in this proceeding is well taken, and the objection to its introduction should have been sustained.

The judgment is reversed, and the cause remanded.


text:
    STATE MUT. FIRE INS. CO. v. TAYLOR.
    (Court of Civil Appeals of Texas. Dallas.
    May 17, 1913.
    Rehearing Denied June 7, 1913.)
    1. Appeal and Erkob (§ 301) — Motion for New Trial — Objection to Charges.
    It is not necessary that the action or ruling of the court in the giving and refusing of charges be included in the motions for a new trial.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. I 301.]
    2. Insurance (§ 669) — Instruction — Application to Evidence.
    Where the evidence in an action on a policy of fire insurance warranted the finding that the verbal contract insuring plaintiff’s property was entered into as alleged, and comprehended the time, the premium, and the rate of premium, defendant’s requested instruction of a verdict on the ground that the evidence had not shown the terms of the policy, the premium, or the rate of the premium was properly refused as being inapplicable to the evidence.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.]
    3. Trial (§ 260) — Requested Instruction —Given Instruction.
    Requested instructions which, in so far as they embodied correct propositions of law, were covered by the court’s main charge, were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    4. Appeal and Error (§ 216) — Presentation of Grounds of Review — Absence of Request for Charge.
    An error of omission in a charge of the court furnishes no ground for a reversal, in the absence of a request for a correct charge on the subject.
    [Ed. Note. — For other cases, see Appeal and. Error, Dec. Dig. § 216; Trial, Cent. Dig. § 630.]
    5. Insurance (§§ 128, 131) — 'Validity of Oral Contract — Mutual Companies.
    A contract of insurance can be effected by parol in the absence of any requirement of the by-laws or charter of a mutual insurance company, or of any statutory provision, and its oral contract of insurance or executory agreement to insure, which leaves nothing to be done but to issue and deliver the policy, is valid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 188-193, 203-209; Dec. Dig. §§ 128, 131.]

      6. Insurance (§ 137)—Powers of Agents —Credit for Premiums.
    A general agent of an insurance company, even though in violation of the rules and regulations of his principal, may give credit for premiums.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 231-245; Dec. Dig. § 137.]
    7. Insurance (§ 137)—Requisites of Contract-Rate of Premium.
    While the rate is an element of the contract which must be agreed upon, yet where the policy is for one year, and the proximate amount of the premium is known, and the exact amount is a mere matter of calculation, and the applicant agrees to pay whatever amount the premium should be, the contract .can be enforced.
    [Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 231-245; Dec. Dig. § 137.]
    Appeal from Dallas County Court; W. F. Whitehurst, Judge.
    Action by D.. F. Taylor against the State Mutual Fire Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Manguin & Townsend, of San Antonio, and Terrell & Dannelley, of Dallas, for appellant. Wood & Wood, of Dallas, for appellee.

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

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

   TALBOT, J.

D. F. Taylor, appellee, brought this suit to recover of appellant the sum of $500 on an oral contract to insure certain household goods, furniture, wearing apparel, printed books, pictures, paintings and jewelry of the alleged value of $850, made by plaintiff and R. T. Malone, the general agent of appellant in th.e city of Dallas, Tex. The petition alleged, in substance, so far as necessary to state “that plaintiff on November 10, 1911, requested said agent to insure his property in the sum of $500 in defendant company, and that said agent replied that he would do so that day, or words to that effect, and then and there agreed with plaintiff that said goods were insured in said amount from that date and that he would issue the policy at once, or as soon as practicable, and that the property was destroyed by fire on November 14, 1911.” The defendant pleaded a general denial, and that the agent, R. T. Malone, had no authority to make an oral contract of insurance, and that such contract, if made, was not authorized by or binding on the company, and that appellee had knowledge of such lack of authority, and that appellant being a mutual assessment company such contract, if made, would be in violation of the laws of Texas, and not enforceable and that the contract, if any, was automatically canceled by nonpayment of the premium. A trial of the ease resulted in a verdict and judgment in favor of the plaintiff for $492.50, and defendant appealed.

Appellee objects to a consideration of appellant’s assignments of error on the ground that they are not briefed in accordance with the rules, but in view of the decision of the Supreme Court in Railway Co. v. Beasley, 155 S. W. 183, the objections will be overruled.

The first assignment is that “the court erred in refusing to instruct the jury to find a verdict for the defendant, as requested by the defendant, after the plaintiff had closed his testimony and rested, for the reason that at that time it appeared from the evidence that nothing had been said or agreed upon as to the length of time the policy, if any. contracted for, should be issued, nor the premium that should be paid for such policy,, nor the rate, nor did it appear what rate would govern, or what would be the result of an inspection, as to exposures, and for these reasons the evidence at such times did not show a complete contract for insurance, as shown by bill of exceptions No. 2.” The assignment will be overruled.

'1. The evidence was sufficient to warrant the finding that the verbal contract to insure appellee’s property was entered into as alleged, and that its terms comprehended, in substance, all of those things which the assignment asserts did not appear to have been agreed upon.

2. There was no error in refusing the special charges requested and made the basis of the second, third, and fourth assignments of error, for the reasons that, in so far as they embodied correct propositions of law called for by the facts of the case, they were covered by the court’s main charge.

3. If the fifth assignment discloses any error in the court’s charge, the same was one of omission, and furnishes no ground for a reversal in the absence of a request for a correct special charge upon the subject. We think, however, the assignment discloses no error. The evidence, as we construe it, shows that it was very clearly understood and agreed between the plaintiff and the defendant through its agent, Malone, that the plaintiff’s property was to be and was insured for one year at the usual and customary premium rate, which Malone testified could be ascertained and determined by a mere mathematical calculation.

4. The court did not err “in refusing to give instruction No. 2, requested by the defendant, to the effect that if the jury found from the evidence that the defendant is a mutual assessment fire insurance company, having by-laws, and that said by-laws only authorized a written contract of insurance with the company, if they do, and they further found that R. T. Malone made an oral contract for insurance, if he did, then such contract would not be authorized and binding on the company, and they should find for the defendant for the reason that it was shown by the evidence that the defendant was a mutual assessment fire insurance company and had by-laws, and that such bylaws only authorized a written contract of insurance by the company.” Nor did the court err in refusing to set aside the verdict for the reason that, if any such contract as is alleged by plaintiff was made, the same was one which appellee, as a mutual insurance company, was unauthorized to make, was contrary to law, illegal, and nonenforceable, as contended by appellant in its twenty-fourth assignment of error.

The by-laws of the defendant do not specifically require that all of its contracts of insurance shall be in writing, nor do we find any statutory provision or provision in appellant’s charter limiting the method in which the company may bind itself to written contracts. ■ In the absence of such a requirement or provision, the great weight of authority is now to the effect that the right to make contracts of insurance like any other right of contracting exists as at common law, and that an oral or parol contract of insurance, or executory agreement to insure which leaves nothing to be done but to issue and deliver the policy, are valid and enforceable. Ellis v. Albany City Ins. Co., 50 N. Y. 402, 10 Am. Rep. 495. This is true with regard to mutual fire insurance companies. They may, within the rule stated, like other insurance companies, consummate contracts of insurance without the issuance of a written policy. Speaking of the capacity of mutual companies to contract by parol, the court in Brown v. Franklin Mut. Fire Ins. Co., 165 Mass. 565, 43 N. E. 512, 52 Am. St. Rep. 534, said that it could see no reason why the general rule should not apply to mutual companies, unless there was something in the statutes or in the by-laws of the company, which necessitated a different conclusion. See, also, Alliance Co-op. Ins. Co. v. Corbett, 69 Kan. 564, 77 Pac. 108; Zell v. Herman Farmers’ Mut. Ins. Co., 75 Wis. 521, 44 N. W. 828; Loomis v. Jefferson Co. Patrons’ Fire Relief Ass’n, 92 App. Div. 601, 87 N. Y. Supp. 5. That a contract of insurance can be effected by parol in this state is definitely settled by the cases of Cohen v. Insurance Co., 67 Tex. 325, 3 S. W. 296, 60 Am. Rep. 24, and Insurance Co. v. Shaffer, 30 Tex. Civ. App. 313, 70 S. W. 566. The evidence was amply sufficient to show that R. T. Malone was the general agent of the appellant and authorized to issue and deliver insurance policies and collect the premiums; that such was the nature of the agency and powers conferred upon him that his acts were the acts of the appellant itself. The evidence further showed, without dispute, that Malone knew where plaintiff’s goods were situated, and that he had been in plaintiff’s home and had seen them; that the contract for the insurance was made on the 10th day of November, 1911, and that the fire which destroyed them occurred on the 14th day of November, 1911; that premiums were not collected before the issuance of policies, and that it was Malone’s rule not to collect premiums until the 15th day of the month following the issuance thereof; that the premium was not demanded of Taylor at the time tjhe oral contract was made in this case, and Malone himself testified that Taylor was able to pay the premium then. It further appears that Taylor, after the fire, offered to pay the premium, but that Malone refused to receive and accept same. It was understood that the insurance was to be for one year; and, while the precise amount of the premium was not known at the time the oral contract was made, yet both plaintiff and Malone knew what it was approximately, and plaintiff testified it was about $5 and not over $7.50, and that he agreed when the contract was made to pay the premium whatever it should be, and Malone testified the amount thereof was simply a matter of calculation. In rendering the judgment appealed from a deduction or allowance of $7.50 was made for the premium.

5. It is a familiar law that a general agent, such as the proof shows Malone to have been, even though in violation of the rules and regulations of his principal, may give credit for premiums; and, while text-writers usually say that the rate is an element of the contract which must be agreed upon, yet it is not to be understood by this, we apprehend, that where, as in this case, the proximate amount of the premium is known, and the exact amount is a mere matter of calculation, and the applicant for the insurance agrees to pay whatever amount the calculation shows it to be, that the contract cannot be enforced. Mr. Joyce, in his work on Insurance, § 46, says: “All the essentials need not, however, be expressly negotiated upon since they may be understood, as where the terms of the usual policy are presumed to have been intended, or where the usual rate of premium is presumed to have been meant.” As heretofore stated, Malone testified in effect that it was understood by him and the plaintiff that the insurance, or duration of the policy in this case, was to be for one year.

6. There are several assignments of error complaining respectively of the court’s action in giving and refusing charges and the admission of certain testimony. Some of these assignments have been disposed of against appellant by what has already been said, and none of them disclose reversible error. The evidence supports the verdict, and the judgment rendered thereon is affirmed.

Affirmed.


author: HALL, J.

text:
    SWEARINGEN v. BRAY.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 19, 1913.
    Rehearing Denied June 7, 1913.)
    1. Appeal and Error (§ 664) — Statements op Fact — Conflict with Bill of Exceptions.
    Where a bill of exceptions is contradicted by the statement of facts, the latter will prevail.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2856-2859; Dec. Dig. § «Sé.]
    2. Evidence (§ 119) — Res Gesths — What Constitutes.
    In an action by a husband for criminal conversation, where it was brought out by the defendant on cross-examination that the husband signed a statement that the parties had not had intercourse to exonerate defendant and his wife from criminal charges preferred against them by him, evidence that the husband was told by a third person that God would look down with approval on a man who would swear to a lie to protect his wife and children, under the influence of which the husband signed the false statement, is admissible as part of the res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303-306; Dec. Dig. § 119.)
    3. New Trial (§ 102) — Newly Discovered Evidence — Diligence.
    In an action for criminal conversation, a new trial cannot be allowed on the ground of newly discovered evidence that .plaintiff and his wife had resumed their marital relations, where it appeared that defendant’s counsel knew where plaintiff resided and that defendant himself had heard that the parties had resumed their relations as husband and wife.
    [Ed. Note. — For other cases, see New Trial. Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    4. Trial (§ 252) — Instructions — Applicability to Evidence.
    In an action for criminal conversation, where there was no evidence that plaintiff and his wife had resumed their marital relations, an instruction that condonation was a defense was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Husband and Wipe (§ 342) — Criminal Conversation — Defenses.
    That,a wronged husband has condoned his wife’s fault and that they have resumed their marital relations is no defense to an action for criminal conversation.
    [Ed. Note. — For other cases, see Husband and Wife, Gent. Dig. § 1129; Dec. Dig. § 342.]
    6. Appeal and Error (§ 757) — Assignments —Sufficiency.
    An assignment of error, complaining that one part of the charge was in conflict with another part, is insufficient, where the brief fails to specify and set out the particular parts of the charge with which the one complained of was in conflict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    7. Appeal and Error (§ 1066) — Review-Harmless Error.
    In an action for criminal conversation, where there was no evidence of the wife’s lewdness before her liaison with defendant, the giving of an instruction that previous lewdness would not entirely defeat plaintiff in his right to recovery, but would reduce damages, was not prejudicial to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 4220; Dec. Dig. § 1066.]
    Appeal from District Court, Collingsworth County; D. E. Decker, Judge.
    Action by B. T. Bray against J. W. Swear-ingen. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    R. E. Taylor, of Henrietta, and J. D. Lackey, of Wellington, for appellant. R. I-I. Tem-pleton, of Wellington, and Barrett & Jones, of Amarillo, for appellee.

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

   HALL, J.

Appellee filed this suit in the district court of Collingsworth county for damages, based upon adulterous relations between appellant and appellee’s wife. The record shows that appellee and wife were married in 1883; that they cohabited and lived happily together until about two years before the filing of this suit; that as a result of their marital relations they became the parents of eight children.

The alleged criminal conduct during two years has been abundantly shown by both direct and circumstantial evidence. Appellee testified that he caught them in the act more than once. The appellant did not testify, although he was living and present at the trial, and the record shows that he was still living when his supersedeas bond was executed and filed. The fact shows that appellee had rather be plaintiff on the civil docket, submitting his casus belli to the rules governing there, with the appellant attending the trial, than be defendant on the criminal docket with an empty shotgun present ^in lieu of appellant, and be tried according to the “unwritten law.” In the light of this record his decision speaks volumes for his forbearance. He has selected the route fraught with the least expense and notoriety, but having a verdict for $1,500 at the end — showing good business judgment. However, reference to the Civil Reports of this state shows it to be a path seldom traveled by wronged husbands.

Appellant pleaded by way of special defenses condonation, and limitation of two years; both being pleas of confession and avoidance. The evidence discloses a deliberate, treacherous, and persistent course of conduct on the part of appellant in debauching the wife of the appellee. That she was weak cannot be denied, but this fact only magnifies appellant’s infamy. Nor does the pusillanimity of appellee mitigate the degree of appellant’s baseness. Appellee’s home, with its contentment and happiness, has been destroyed, his wife defiled and made an outcast, his children disgraced and scattered over the world, and all that any husband and father holds dear and sacred is thrown at his feet reeking with filth and slime, by the shameless perfidy and lechery of appellant, whose pleadings and silence at the trial may be taken as a confession of his guilt.

We will not set out the disgusting details of the facts here, but to summarize they show that appellant invaded the appellee’s home, induced his wife to drink with him, made her little girls bearers of his secret letters to her, furnished her expense money to leave home, and followed her or went with her to other towns, and, in short, that he dethroned the chastity of a wife, profaned the saeredness of motherhood, destroyed the virtue of a home, and defiled the holiness of a marriage bed. He now brings his case here assigning four errors committed by the trial court against him.

The first error assigned is that the court permitted over the objections of the defendant the appellee to testify as follows: “Squire Walker told me that God would look down with approval upon a man that would swear a lie to protect his wife and children; that is the reason why I signed this statement.” The objections registered against this testimony are that it is hearsay, a conversation had and statement made in the absence of the defendant, irrelevant and immaterial, and was the conclusion of the plaintiff and prejudicial to the rights of the defendant. Appellee’s brief asserts that the bill of exceptions upon which this assignment is based is not borne out by, but is contradicted by, the record, and reference to the statement of facts sustains appellee’s contention. The evidence was not offered in. the form that the bill states, but was offered in rebuttal of evidence brought out by the defendant on cross-examination, and the rule is that, where a bill of exceptions contradicts the statement of facts, the latter will prevail. Eastern Railway of N. M. v. Montgomery, 139 S. W. 885; Railway Co. v. O’Donnell, 90 S. W. 886. It appears that this statement by the appellee was made in explanation of his action in signing a written statement which had been brought to him by friends of appellant Swearingen, the effect of which written statement was to exonerate Swearingen and his wife from the criminal charges which appellee had previously made against them. It appears that he hesitated some time after the written statement was presented to him before signing it, and while hesitating the statement quoted from Squire Walker, he says, was made. The statement was clearly res gestee and was admissible in explanation of why he signed a written declaration which he knew to be false.

By his second assignment of error appellant contends that the court should have granted him a new trial and erred in overruling his motion based upon newly discovered evidence. It is clear from the record that no diligence was shown by appellant in attempting to discover the alleged new evidence, if as a matter of fact it was unknown to him at the time of the trial; but we think the record affirmatively shows that appellant knew as much concerning the matters he claimed to have discovered, long before the trial, as he alleges he learned immediately thereafter. The original petition was filed in September, 1910, and this trial was in November, 1912. The evidence taken shows that defendant’s attorney knew where plaintiff resided long before the trial, and that interrogatories had been sent to him at Sunset a year prior to the trial. Appellant, himself, testifying for the first time upon the hearing of the motion for a new trial, said that he had heard that plaintiff and his wife were living together prior to the trial, and also admitted that he had made the statement prior to the trial that the plaintiff and his wife were living together near Sunset, Tex. It was also shown by the witnesses Walker and Pritchard that long prior to the trial Swear-ingen had told these witnesses that he knew plaintiff and his wife were living together, and that he would prove it at the proper time, or that it would come out finally.

There is a dearth of decisions in this state upon cases growing out of criminal conversation, and we are not able to find any authorities in the reports of Texas upon the question; but, according to the weight of authorities in other states, condonation is not a defense. 21 Oye. 1627 G (2), and authorities there cited. The court did not err in overruling the motion for a new trial.

The following special charge was requested by the defendant: “Gentlemen of the Jury : In this case you are told that if you find and believe from the evidence that the plaintiff’s wife did leave him, but after-wards returned to him, and they are now living as husband and wife, and that plaintiff’s wife is discharging her duty as his wife and has so discharged her duty as his wife since her return to him, and that she respects and loves her husband as she did before she left him, then you will return your verdict for defendant.” This is clearly not the law. There is no evidence upon which to base such a charge. As a matter of law according to the weight of authority in other jurisdictions, if the plaintiff and his wife had been reunited, or even if they had continued to live together and had never separated, still this would not be a defense to plaintiff’s cause of action. We think the court’s charge is as favorable to appellant upon this issue as he had a right to demand. 21 Cyc. pp. 1617, 1622, 1626, 1627; Adams v. Main, 3 Ind. App. 232, 29 N. E. 792, 50 Am. St. Rep. 266.

The fourth assignment of error is that the court erred in the third paragraph of his main charge to the jury as follows: “But you are instructed that, however lewd a wife may have been, or however willing she may have entered into the act of sexual intercourse with the defendant, it will not justify the defendant in having such intercourse and -will not entirely defeat tlie plaintiff in Ms right to recovery, if you find he is otherwise entitled to recover damages in this case.” The objection urged to tMs paragraph of the charge is that it is in conflict with part of paragraph 2 and part of paragraph 3 of the court’s main charge. Appellant has failed, however, in his brief to specify and set out the particular parts' of paragraphs 2 and 3 which he claims are in conflict with the portion of the third paragraph given, and for this reason his assignment fails to point out any error. We have, however, reviewed the charge of the court, and we find it as favorable to appellant as the facts justify, and find the charge quoted above, if defective, is strongly in Ms favor. We have not found a line of testimony in this record indicating any lewdness on the part of Mrs. Bray prior to the time she was marked as Ms prey by appellant. On the contrary, the record shows that she was a model wife and mother, devoting her life to the happiness of her husband, her home, and her children.

We have found no reversible error in the record, and the facts would justify a verdict many times as great as the one rendered.

The judgment is affirmed.


author: HIGGINS, J.

text:
    EL PASO ELECTRIC RY. CO. v. MEBUS.
    (Court of Civil Appeals of Texas. El Paso.
    May 1, 1913.
    Rehearing Denied June 5, 1913.)
    1. Appeal and Error (§ 1040) — Review-Harmless Error — Overruling Exceptions to Petition.
    Where the court overruled an exception, on the ground of remoteness, to allegations in a petition for damages for injury to plaintiff’s wife, which stated that defendant had been compelled to resign his duties as jailer, because his wife could no longer act as matron, the error, if any, was harmless, where no evidence was given on that point, and the court did not submit it as an element of damage.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    2. Appeal and Error (§ 1070) — Harmless Error — Amount op Damages.
    Error which affects only the amount of damages is harmless, where there is no contention that the verdict was excessive.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dee. Dig. § 1070.]
    3. Trial (§ 252) — Instructions — Applicability -to Evidence — Variance.
    An instruction that plaintiff could not recover because of variance between her pleadings and her proof as to the manner of her injury was properly refused, where the variance was not substantial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    4. Trial (§ 253) — Instructions—Ignoring Evidence.
    An instruction, asked by the defendant, which specifies certain acts of negligence by defendant’s servants, but ignores others alleged by the plaintiff and supported by the evidence, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dee. Dig. § 253.]
    5. Trial (§ 296) — Instructions — Error Cured bt Subsequent Instruction.
    In an action for injuries to plaintiff’s wife in a fall from a street car, where the petition alleged that the injury was due to stopping the car at a place unsafe because of an excavation of the street, an error in an instruction which stated that the defendant would be liable if the place was dangerous for any reason is harmless, where the court in a subsequent instruction limited the jury to a consideration of the specific defect alleged.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    6. Trial (§ 295) — Instruction—Assumption of Facts — Legal Conclusion.
    Where an instruction contains statements which, when isolated, seem to assume negligence, but which, taken as a whole, is merely the statement of the legal conclusion of negligence arising from certain facts, the instruction is not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.]
    7. Trial (§ 296) — Instructions — Error Cured by Subsequent Instructions.
    Error in an instruction which does not state the legal conclusion deducible from the acts of the person injured is cured by a subsequent instruction properly submitting the matter of contributory negligence.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    8. Appeal and Error (§ 877) — Parties Entitled to Allege Error — Error Affecting Adverse Party.
    An assignment of error based upon error prejudicial to the appellee will be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.]
    Appeal from District Court, El Paso County; A. M. Walthall, Judge.
    Action by E. W. Mebus against the El Paso Electric Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Davis & Goggin, of El Paso, and Baker. Botts, Parker & Garwood, of Houston, for appellant. Lea & Nagle, of El Paso, for ap-pellee.

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

   HIGGINS, J.

This was an action for damages by the appellee, based upon personal injuries alleged to have been sustained by Ms wife. It was averred that Mrs. Mebus was a passenger upon one of the street cars of the appellant, and upon alighting from said car at the intersection of Cotton avenue and Detroit street, in the city of El Paso, she was injured through the negligence of appellant. Upon trial verdict and judgment in appellee’s favor was returned and rendered in the sum of $3,500.

We find that appellee’s wife was injured, as alleged, through the negligence of appellant, without any contributory negligence upon her part, and that appellee has thereby sustained damage in the amount of the judgment.

In the petition it was averred that •‘plaintiff was the jailer of El Paso county, Tex., and was receiving therefor a salary of $120 per month for himself and wife, besides board and a place to live, and that in order to attend to the duties of said office it was necessary for plaintiff’s wife to assist him, and she was assisting him in such duties as matron of the jail, for which she was receiving, or plaintiff was receiving for her, the sum of $1.50 per day ; but in consequence of said injuries she was disabled and rendered incapable of assisting him in his duties as such jailer, and in consequence whereof' he was compelled to and did resign his position as jailer on or about the 1st day of February, 1912.” And it was further averred: “And in consequence of her said injuries plaintiff, at great expense, brought and caused to be brought from Portland, Or., to El Paso, Tex., his wife’s sister to assist his said wife, and to care for her and attend to her duties.”

To the above-quoted allegations defendant excepted, upon the ground that such damages were too remote and such as would not be contemplated by an accident of the nature complained of. Error is assigned to the refusal of the court to sustain this special exception.

There was no evidence introduced that plaintiff had relinquished his position as jailer, or of his having sustained any financial loss in consequence thereof, or of any expense incurred in bringing his sister-in-law to the city of El Paso, and none of such matters were submitted in the court’s charge as elements of damage, but the same were, in effect, excluded, and the error, if any, in refusing to sustain the exception was therefore harmless. Pullman Palace Car Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 624; Railway Co. v. O’Donnell, 90 S. W. 889; Land v. Klein, 21 Tex. Civ. App. 3, 50 S. W. 639; Turner v. Faubion, 36 Tex. Civ. App. 314, 81 S. W. 810; Bolton v. Prather, 35 Tex. Civ. App. 295, 80 S. W. 666; Railway Co. v. Pate, 113 S. W. 994; San Antonio Traction Co. v. Bryant, 30 Tex. Civ. App. 437, 70 S. W. 1018. Furthermore, this was a matter which could only have affected the amount of the recovery, and there is no contention that the verdict was excessive. For this further reason, the error was therefore harmless. Railway Co. v. Lynch, 40 Tex. Civ. App. 543, 90 S. W. 511.

A special charge was requested by the defendant as follows: “You are instructed that plaintiff herein, if he recover against defendant, must recover upon the specific acts of negligence averred by him in his petition. Now, therefore, if you believe from the evidence in this ease that plaintiff’s wife did not fall off the car, but believe that she had safely reached the ground and was holding to the handle or handhold when the conductor gave the signal to go ahead, and when the car moved off plaintiff’s wife so let loose the handhold and fell, and that the act of the employes in signaling said car ahead and in starting said car before plaintiff’s wife had let loose the handhold was the proximate cause of the injuries, then plaintiff cannot recover, though you believe that it was negligent in defendant’s conductor to have signaled the car to go ahead or to have started said ear before plaintiff’s said wife had let loose the handhold.”

Error is assigned to the refusal of this charge, upon the ground that there was a variance between the allegations and the proof of negligence, and the special charge should have been given. We have examined the evidence, and find that there is no substantial variance between the pleading and the proof, and the same was therefore properly refused. It was properly refused for the further reason that it ignores acts of negligence alleged by plaintiff and supported by the evidence, which acts of negligence on the part of the defendant the jury was warranted in finding were concurrent causes with the starting of the car, proximately causing the injury. Railway Co. v. Wall, 110 S. W. 458. The second, third, and fourth assignments are therefore overruled.

In the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments it is objected that the court assumed as undisputed certain facts which should have been submitted to the jury for their determination, and that in this respect the charge violated the rule which forbids any comment upon the weight of the evidence. The charge, considered as a whole, is not subject to the criticisms here made. Furthermore, Mrs. Menus’ testimony that she was a passenger upon the car and was injured in alighting therefrom is amply supported and corroborated by the testimony of other disinterested witnesses, and there is absolutely no basis whatever for the contention that there is no evidence except her own to show that she was a passenger on the car, and that she fell in alighting therefrom. For the reasons indicated, the assignments last noted are overruled.

The third paragraph of the court’s charge reads as follows: “You are instructed that, while the defendant, El Paso Electric Railway Company, was not the insurer of the safety of the plaintiff’s wife, while a passenger on one of its cars, in her attempt to alight from said car, it was the defendant’s duty to exercise that high degree of care, prudence, and foresight in providing plaintiff’s wife a reasonably safe place to alight from said car, and in protecting her from possible injury in alighting from said car, which a very prudent person engaged in the business as usually conducted would employ under the same or similar circumstances, and a failure to exercise such care would be negligence, and if tbe place where defendant’s car stopped for plaintiffs wife to alight from said car for any reason was dangerous, or not reasonably safe for her to alight from said car, under all of the circumstances then surrounding her, and if plaintiff’s wife did not know of the dangerous or unsafe condition of said place, if it was dangerous or unsafe, and if a cautious and prudent person, under all of the circumstances, would have warned plaintiff’s wife of the dangerous or unsafe condition of the place for her to alight, if it was dangerous or unsafe, or would have assisted plaintiff’s wife in alighting from said ear, then and under such circumstances, should you so find, you are instructed that it would be the duty of the defendant to warn plaintiff’s wife of the dangerous or unsafe condition of said place, or assist her in alighting from said ear, if it was dangerous or unsafe, if the defendant knew of its dangerous or unsafe condition, or by the exercise of ordinary care could have known of it, and a failure to warn plaintiff’s wife, or to assist her in alighting from the car under such circumstances, would be negligence; and if the defendant was guilty of any one or more of the acts constituting negligence, as that term is defined to you in this paragraph, and plaintiff’s wife received any of the injuries complained of, and such negligence, if any, was the proximate cause of said injury, and you further find that plaintiff’s wife was exercising ordinary care for her own safety, the defendant, under such circumstances, would be liable to plaintiff for any damages so sustained. By the expression ‘proximate cause’ of an event, as used in this charge, or any special charges, is meant the direct, efficient, or producing cause without which the injury to plaintiff’s wife would not have occurred, and from which cause it could have been reasonably anticipated by the party producing it that injury would result as a natural and probable consequence of the negligent act.”

To this paragraph it is first objected that it submits to the jury an issue not raised by the pleadings, in that the jury is instructed that the defendant would be liable if the place where the car stopped for Mrs. Mebus to alight for any reason was dangerous, or not reasonably safe for her to alight; whereas plaintiff, in his petition, had expressly averred the dangerous condition to be due to the fact that the street adjacent to the track had been excavated and thereby lowered about two feet below the level of the track, so that there was a distance of about three feet from the ear step to the ground.

The court probably committed abstract error, under the state of pleading, in thus charging that the defendant would be liable if the place for any reason was dangerous for Mrs. Mebus to alight from the car, since plaintiff would properly be confined to his allegations respecting the dangerous character of the place. The error, however, we regard as harmless, considering the charge as a whole. The third paragraph is merely an instruction in general terms of defendant’s duty. The fourth paragraph is a like general instruction as to the duties incumbent upon the plaintiff’s wife. The fifth paragraph of the charge is that portion wherein the jury is affirmatively instructed as to the state of facts upon which plaintiff’s recovery must be predicated, and we there find that the court limited that phase of the case relating to the dangerous condition of the street to the excavated and lowered grade of the street, as it was alleged. The charge, considered as a whole and construed in the light of the issues made by the pleadings and evidence, is therefore not subject, to the objections here urged, and the fourteenth assignment is overruled. Railway Co. v. Smith, 65 Tex. 167; Railway Co. v. O’Hare, 64 Tex. 600.

Under the fifteenth assignment it is further objected to the third paragraph of the charge that same assumes a certain state of facts to be negligence upon the part of the defendant and so instructs the jury. By considering merely the isolated and detached sections of the paragraph quoted by appellant, it would seem that this objection is well taken; but examining the paragraph in its entirety it will be found to be not subject to the objection urged. It is merely the statement of the legal conclusion, viz., negligence, which arises from a failure to exercise that degree of care which was required under certain circumstances, and was not error. Railway Co. v. Eddleman, 52 Tex. Civ. App. 181, 114 S. W. 425.

Under the sixteenth assignment the contrary position is taken, and it is here urged that the court erred in the fourth paragraph in not stating the legal conclusion deducible from acts of plaintiff’s wife under certain circumstances. The error here, if any, was harmless, since it was corrected in the sixth paragraph, where the question of contributory negligence on the part of Mrs. Mebus was properly submitted to the jury for its determination, and the sixteenth assignment is therefore overruled.

The seventeenth assignment assails the fifth paragraph of the charge, and is overruled, since the matter here complained of was an error prejudicial to the appellee.

The eighteenth and nineteenth assignments criticise the sixth paragraph of the charge as being confusing, contradictory, irreconcilable, and misleading. It is not so regarded, and the assignments are therefore overruled.

What has been said in disposing of the first assignment also disposes of the twenty-first.

Affirmed.


author: MOURSUND, J.

text:
    FURNISH v. WALLACE.
    (Court of Civil Appeals of Texas. San Antonio.
    May 21, 1913.)
    1. Malicious Prosecution (§ 10) — Civil Suit — Right of Action.
    It is not wrongful to seek, in good faith, to establish title by judicial proceedings, though such suit to establish title fails and such effort cannot be made the basis of a tort action.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 11, Í2; Dec. Dig. § 10.]
    2. Malicious Prosecution (§ 16) — Elements.
    To make a civil suit wrongful, it must, in addition to being unfounded, be brought maliciously and without probable cause.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 19-22, 59; Dec. Dig. § 16.

    For other definitions, see Words and Phrases, vol. 5, pp. 4309, 4310.]
    3. Malicious Prosecution (§ 12) —Right of Action.
    After the Commissioner of the General Land Office had forfeited state land awarded to defendant, on June 29, 1908, defendant filed in good faith an affidavit contesting the cancellation of the award, which affidavit was filed in the General Land Office on July 3, 1908, and on July 27th plaintiff applied to purchase the same land. Plaintiff knew when he filed his application that defendant had filed his affidavit to have the cancellation reinstated, and was advised by the Land Commissioner that his application would be held up until defendant’s contest was settled. After plaintiff had filed his application, the Attorney General brought a suit in trespass to try a title against defendant to recover the land, which suit was finally dismissed without defendant disclaiming. Held, that defendant’s affidavit could not be made the basis of a suit by plaintiff for damages consisting of the value of the rent for the time between the filing of plaintiff’s application and its award, on the ground that the land was withheld from him because of the filing of defendant’s affidavit.
    [Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. § 5; Dec. Dig. § 12.]
    4. Malicious Prosecution (§ 24) — Action-Bad Faith — Evidence.
    The fact that defendant was unsuccessful in a suit by him against plaintiff to recover land was not proof that his claim was asserted in bad faith so as to make him liable in a subsequent action for damages for bringing the action.
    [Ed. Note. — For other eases, Prosecution, Cent. Dig. §■§ 49-5? see Malicious ; Dee. Dig. §24.]
    Appeal from Kinney County Court; R. Stratton, Special Judge.
    Action by J. H. Wallace against D. K. Furnish. From a judgment for plaintiff, defendant appeals.
    Reversed, and venue ordered changed.
    Searcy & Browne, of San Antonio, for appellant.

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

   MOURSUND, J.

On February 15, 1906, D. K. Furnish, appellant, applied to John J. Terrell, Commissioner of the General Land Office, to purchase, as additional land to his private land, section 8, certificate 2/274, grantee, J. Poitevent, 640 acres, in , Kinney county, Tex. This application was filed in the General Land Office on February 20, 1906, and said section of land was awarded to D. K. Furnish by the Land Commissioner March 17, 1906. Afterwards, on June 18, 1908, the Commissioner of the General Land Office forfeited said land. On June 29, 1908, D. K. Furnish executed an affidavit, contesting / and disputing the canceling of said award by the Land Commissioner, which affidavit was filed in the General Land Office on the 3d of July, 1908. This instrument was subscribed and sworn to before the county clerk of Kinney county. On July 27, 1908, appellee, J. H. Wallace, applied to purchase section 8, certificate 2/274, J. Poite-vent, 640 acres, as a home tract and section 2, certificate 2/273, J. Poitevent, 640 acres, as additional to said home tract applied for ; said sections being in Kinney county, Tex., which application was filed in the Land Office July 29, 1908. Thereafter, on April 12, 1910, the two sections of land were awarded to J. II. Wallace as applied for. At the time Wallace filed his application to purchase section No. 8 as a home tract and section No. 2 as additional thereto, he knew that D. K. Furnish, appellant, had filed an affidavit in the Land Office, seeking to have the Land Commissioner reinstate his canceled files, and he (Wallace) was advised by the Land Commissioner that his application would be field up until the controversy then pending with D. K. Furnish was settled, and that the Attorney General would in a short time file suit against D. K. Furnish in trespass to try title to recover said section 8 in the district court of Travis county, Tex. At the time J. H. Wallace applied to purchase the land he did not know D. K. Furnish, and to his knowledge had never seen him up to the time of the trial of this cause in the county court of Kinney county, Tex. Shortly after Wallace filed his application to purchase section 8 as his home tract and section 2 as additional thereto in the Land Office, the Attorney General of the state of Texas brought suit in trespass to try title in the district court of Travis county, Tex., against D. K. Furnish to recover section 8. Said suit remained on the docket of the district court of Travis county for several terms and was finally dismissed by the Attorney General. At the time the suit was dismissed the Attorney General advised the Commissioner of the General Land Office to award section 8 to Wallace under his application theretofore filed in the Land Office, and that if Furnish was not satisfied he could bring suit in trespass to try title for said land in Kinney county, Tex. The Commissioner of the General Land Office, acting on said letter from the Attorney General, awarded section 8 to Wallace as a home tract and section 2 as additional thereto; said award being dated April 12, 1910. D. K. Furnish then filed suit in the district court of Kinney county, Tes., against J. H. Wallace, in trespass to try title to recover section 8, and upon the trial of said cause in 1911 judgment was rendered for the defendant, J. H. Wallace. Section 2, certificate 2/273, J. Poitevent, 640 acres, never belonged to.D. K. Furnish, but was originally awarded to one Juan Hernandez as an actual settler and as his home tract. On June 18, 1908, said sale to said Hernandez of section No. 2 was canceled and the section was reappraised and placed back on the market, and the county clerk of Kinney county, Tes., notified of that fact, and Juan Hernandez by regular quitclaim deed reconveyed section 2 to the state and said section was regularly placed on the market for sale to actual settlers on July 29, 1908. J. H. Wallace brought suit to recover damages for rent on section 2 for the reason that he applied to purchase said section 8 as his home tract and section 2 as additional thereto, and, as section 2 was held up by the Land Commissioner for the reason that the Land Office was then engaged in a controversy with D. K. Furnish as to section 8, the Commissioner would not award section 8 to said Wallace as his home tract and would not award him section 2 as additional to section 8, applied for as his home tract. The damages sought to be recovered amount to $163.72, being the rental value of section No. 2 for one year, 8 months, and 14 days, the time intervening between the date of filing of Wallace’s application and the date of the award to him of the land. It was alleged that the affidavit so filed by Furnish in contesting the cancellation of his award was made in Kinney county, Tex., and that same was false, fraudulent, and tortious, and was voluntarily, willfully, knowingly, and tortiously made by Furnish, and that, with said affidavit as a base and foundation for his subsequent acts and conduct, the defendant, in Kinney county and in Bexar county, orally and in writing claimed to be the owner of said section 8 up to October 31, 1911, notwithstanding the cancellation of his award thereto; that such tortious and fraudulent claim and tortious, fraudulent, and trespassing acts of defendant caused a suspension of the award to plaintiff of section 2 from July 29, 1908, to April 12, 1910.

Furnish filed a plea of privilege to be sued in Bexar county. Judgment was entered overruling such plea and awarding plaintiff the amount sued for by him. Appeal being perfected to the county court of Kinney county, a trial before the court resulted in the overruling of the plea of privilege and the award to plaintiff of the same judgment as was rendered in the justice’s court. The overruling of the plea of privilege is assigned as error. It was agreed by the parties upon the trial that such plea should be sustained unless plaintiff’s cause of action can be classed as coming under subdivision No. 6 of article 1585, or subdivision 7 or 9 of article 1194, Revised Civil Statutes of 1895. The trial court concluded that the case was one falling within the provisions of subdivision 6 of article 1585, Revised Statutes of 1895, which reads as follows: “Suits for damages for torts may be brought in the county and precinct in which the injury was inflicted.” We are not aided by any brief in behalf of appellee, but have carefully considered the conclusions of law filed by the trial court wherein he announces that the making and filing of the affidavit constituted a tort against Wallace, and that every act done hy Furnish after Wallace filed his application te purchase the two sections of land, which hindered, delayed, or prevented Wallace from receiving his awards to said sections, would renew and revive every allegation set forth in Furnish’s affidavit to reinstate, and would be a tort against section 2 because the Commissioner of the General Land Office would not pass upon the application to purchase section 2 pending the litigation as to section 8.

The court failed to state what subsequent acts by Furnish were considered of a wrongful nature and sufficient to constitute a renewal of the allegations of the affidavit. While the pleadings in the state suit are not in evidence, we may infer that Furnish did not disclaim. The suit filed by Furnish was instituted after section 2 had been awarded to Wallace and did not affect such award, so that the filing of such suit cannot be considered a revival of any allegations in the affidavit of which complaint could be made with respect to section No. 2. It does not appear that Furnish ever had any notice of Wallace’s application to purchase section 2, and, as he made no claim to such section, we do not see how he could be charged with notice of the filing of said application. It does not appear that any right of Wallace’s was invaded by the filing of the affidavit, as he had absolutely no interest in the matter at that time, so the inquiry arises whether it became the duty of Furnish to withdraw his contest of the cancellation of his award to section 8 upon the filing of Wallace’s application or to disclaim in the state suit because Wallace had filed such application.

It has never been the policy of the law to prevent a man from making claims to property in good faith and instituting suits wherein such claims are asserted, and, though the suit may prove not maintainable, no right of action exists in tort against the person instituting such suit. Haldeman v. Chambers, 19 Tex. 55. It is never wrongful for one to assert a title in himself to property or to seek to establish it by judicial proceedings, provided this is done in good faith. Cooley on Torts, vol. 1, p. 460. In the case of King v. D. Sullivan & Co., 92 S. W. 52, this court held: “It seems to be the well-established rule in this state, as well as in a good many other Jurisdictions, that no damages can be recovered of any character against any person for filing a civil suit and prosecuting it against another to judgment upon a claim, real or unfounded, unless one’s property or person is wrongfully seized, or in some manner injuriously affected, by process issued therein.” In the case of Salado College v. Davis, 47 Tex. 136, the court said:

“This was an ordinary civil suit, in which no extraordinary process was sued out, and, if the indirect effect of the suit was to interfere with the sale of the property which was to some extent the subject-matter of litigation, this is not such an injury as the law regards or makes actionable.”

In addition to a suit being unfounded, malice and want of probable cause must be established to make out a case.

The case now being considered is without precedent, but it is founded upon an effort upon the part of Furnish to procure his title to school land reinstated, and upon his assertion of a claim to such land, and the foregoing rules relating to claims of title, within or without the courts, we think can with propriety be applied in this case.

Under our statute the Commissioner of the General Land Office, upon ex parte proof satisfactory to himself, may cancel an award. He canceled the award to Furnish of section 8, and the latter filed a protest under oath, setting up the facts upon which he relied to controvert the information which had been communicated to the Commissioner of the General Land Office. The land had not been awarded to any one else at the time, and before Wallace applied he was informed of the filing of such affidavit. 1-Ie was also informed that the land would not be awarded to him until suit had been brought by the Attorney General in behalf of the state against Furnish, and the legality of the latter’s claim determined. Furnish, in filing such affidavit, resorted to the only practicable means of contesting the information upon which his title had been canceled, and we think that he should be protected (equally with a person bringing a civil suit) against an action for damages by reason of filing such affidavit. It is clear that his failure to disclaim in the state suit cannot be made the basis for any damage suit. However, even if an affidavit filed in the General Land Office in contest of a cancellation of an award could be made the basis for a suit for damages, the evidence in this case is wholly insufficient to show the commission of any tort for the reason that there is no evidence that the claim made by Furnish ■ was made in bad faith, nor any evidence that any statement made in the affidavit was false.

The mere fact that Furnish lost in the suit for the land against Wallace furnishes no proof" that his claim was asserted in bad faith, nor does the introduction in evidence of the judgment in said case constitute any proof that false statements were made in the affidavit. In fact, Wallace has failed to point out by his pleadings the allegations of the affidavit which he contends are false, and there is no evidence that any were false, nor did the court find that any were false, but based his decision upon the broad ground that making and filing such affidavit, and asserting a claim to the land which in his suit against Wallace was adjudged to be unfounded, constituted a tort. It is equally clear that no trespass was committed, nor any fraud, and that the suit is not maintainable in Kinney county under subdivisions 7 or 9 of article 1194, Statutes of 1895.

The plea of privilege should have been sustained. The judgment is therefore reversed, and the plea sustained, and, this court proceeding to enter the order which should have been made, the venue is changed to justice’s court of precinct No. 1 of Bexar county, Tex., and the clerk of the county court of Kinney county is ordered to make up sc transcript of all orders made in the cause and certify officially to the same under the seal of the county court of Kinney county and transmit the same, together with the original papers of the cause, to the justice of the peace of precinct No. 1 of Bexar county, Tex., with the mandate of this court.

Reversed, and venue changed.


text:
    FIRST NAT. BANK OF FT. WORTH v. BEACH et al.
    (No. 432.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 20, 1913.)
    Appeal and Eeeoe (§ 47) — Jtjbisdiotion— Amount in Conteoveesy.
    AVhere plaintiff sued for only $100 and waived a provision of a contract for attorney’s fees, the amount in controversy was insufficient to sustain the appeal to the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 202-225; Dec. Dig. §47.]
    Appeal from Hardeman County Court; W. S. Bannister, Judge.
    Action between the First National Bank of Ft. W'orth and D. B. Beach and others. From a judgment in favor of the latter, the former appeals.-
    Dismissed.
    W. T. Perkins, of Quanah, and Jno. D. Lester, of Ohillicothe, for appellant. Cecil Storey, of A^ernon, and W. O. Scott, of Chil-licothe, for appellees.

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

   HALL, J.

It is clear from the record that plaintiff sued for only $100 and waived the provision, for attorney’s fees; therefore the appeal is dismissed for want of jurisdiction.