author: PRENDERGAST, J. LATTIMORE, J.

text:
    ICE v. STATE.
    (No. 5092.)
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1918.
    On Motion for Rehearing, Jan. 15, 1919.)
    1. Perjury @=>25(6) — Indictment — Materiality of Testimony.
    An indictment for perjury held to allege sufficient facts from which the materiality of the alleged perjured testimony could be inferred.
    2. Per.juey @==>19(2) — Indictment — Sufficiency.
    An indictment for perjury held to allege sufficiently that defendant testified to the matter assigned as perjury.
    3. Criminal Law @=>1091(4) — Appeal—Bills of Exception.
    Where appellant’s bills of exceptions are not full enough to show any error in the introduction of testimony, they cannot properly be considered under court rules.
    4. Pbrjtjby @=>32(7) — Evidence — Admissibility.
    In a prosecution for perjury, alleged to have been committed before the grand jury, where the grand jury did not have a full written record of the testimony, it was proper to permit a grand juror to testify to defendant’s oral testimony in full, particularly where there was no claimed conflict between the testimony so given and the part written.
    On Motion for Rehearing.
    5. Perjury <®=32(1) — -Evidence—Admissibility.
    In a prosecution for perjury, in which defendant was accused of falsely swearing that he had had sexual intercourse with a woman prior to her alleged seduction by another, the woman’s testimony of facts and conversations of her alleged seducer in consummating the offense, and of the birth of her child were inadmissible, where not connected with defendant.
    Appeal from District Court, Somervell County; O. L. Rockett, Judge.
    Zeb Ice was convicted of perjury, and be appeals.
    Motion for rehearing granted, and case reversed and remanded.
    Devi Herring, of Glen Rose, and W. E. Myres, of Cleburne, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of perjury and assessed the lowest punishment.

Appellant made a motion to quash the indictment on these grounds: It does not allege sufficient facts from which the materiality of the alleged perjured testimony could be inferred; nor that defendant testified to what is assigned as perjury; and the word “did” is omitted before the phrase “state and testify” which is essential.

The indictment is very lengthy. The alleged perjury is based on appellant’s false testimony before the grand jury. It is unnecessary to copy the indictment. A sufficient statement of the averments so as to pass on appellant’s grounds to quash it can be made without copying it. All the preliminary averments as to the court, impanelment of the grand jury, that appellant was before it as a witness, and was duly sworn, are regular and full. No complaint was made against any of these matters. After these preliminary allegations were properly made the indictment alleged: That it became and was a material inquiry before said grand jury, and necessary for the due administration of the criminal law of the state, within said county, and particularly whether within 3 years, within said county, one Jim Ice, who stood charged, by a complaint duly made and filed on January 29, 1917, before me proper tribunal, with the offense of seduction, in fact had, on or qbout August 15, 1916, committed the offense of seduction upon Sue Tug-gle, an unmarried female under the age of 25 years, by then and there having obtained carnal knowledge and carnal intercourse with her under and by virtue of a promise of marriage to her as charged in said complaint, and for which accusation the said Jim Ice had theretofore been, and was then and there, held under a bail bond to await the action of said grand jury, then in session and investigating the said criminal accusation against him; and it became and was then and there a material inquiry in said investigation before and by said grand jury whether said Sue Tuggle was in fact a virtuous female, and whether she had had sexual intercourse with male persons other than said Jim Ice prior to the time of the alleged seduction of her by him as charged in said complaint; and, as affecting her credibility as a witness, to determine whether she had ever had sexual intercourse with any male person or persons other than the said Jim Ice; and it became and was then and there a material inquiry before said grand jury in said investigation whether he, the said Zeb Ice, had theretofore had sexual intercourse with said Sue Tuggle; “and the said Zeb Ice did, on the day and date first herein-before named (April 17, 1917), in said county, before and to said grand jury, under the sanction of said oath administered to him as aforesaid, willfully and deliberately state and testify, among other things, that he, the said Zeb Ice, had had carnal intercourse with the said Sue Tuggle as many as seven times, that the first of which times was long prior to the time of the alleged seduction of her, the said Sue Tuggle, by the said Jim Ice as charged in the complaint aforesaid, and that one of the said seven times that he had sexual intercourse with the said Sue Tuggle, as previously testified by him', the said Zeb Ice, as aforesaid, occurred one day during the protracted meeting at Cottonwood (meaning a religious revival meeting held at a certain schoolhouse in a neighborhood in said Som-ervell county, Tex.) last summer, in August, and that at said time and occasion, ‘Gray’ Hart (meaning a boy named Grady Hart) caught us one time in the act (meaning that said boy Grady Hart had seen him, the said Zeb Ice, and the said Sue Tuggle having sexual -intercourse at said last-named time and occasion before mentioned);” whereas in truth and in fact he, the said Zeb Ice, had not had sexual intercourse with the said Sue Tuggle as many as seven times, and in truth and in fact he, the said Zeb Ice, had not had sexual intercourse with the said Sue Tuggle prior to the time that said Jim Ice was accused of having sedueed^he said Sue Tuggle as aforesaid, and in truth and in fact the said Zeb Ice had not had sexual intercourse with the said Sue Tuggle at any time or place; and in truth and in fact he, the said Zeb Ice, did not have sexual intercourse with the said Sue Tuggle during the protracted meeting at Cottonwood, as aforesaid, last summer in August, nor at any other time; and in truth and in fact the said Gray Hart (meaning Grady Hart, the boy above mentioned) did not catch them, the said Zeb Ice and the said Sue Tuggle, in the act of sexual intercourse during said protracted meeting at Cottonwood, nor at any other time or occasion—which said testimony so given and statements so made by him, the said Zeb Ice, before and to said grand jury as aforesaid, and each and all of them, were and are willfully and deliberately false and untrue, and the said Zeb Ice then and there well knew that the same, and each and all of them, were false and untrue when he made and testified to the same as aforesaid.

It is so plain and clear from the allegations in the indictment that neither of appellant’s grounds to quash it are well taken, that it is unnecessary to discuss either of his objections. The court did not err in overruling his motion to quash. The indictment was clearly sufficient as against each and all of his objections thereto.

The court gave a full, correct, and apt charge covering every issue raised by the testimony. The appellant filed some objections to the court’s charge, wherein he says that he “now requests the court to correct and modify said general charge.” Then he specifies five separate grounds or particulars. But he took no bills of exception to the court’s failure or refusal to modify and correct his general charge in any of the said particulars, which would be necessary. It is perfectly evident from the court’s charge as contained in the, record, and appellant’s objections thereto, that if the charge as originally drawn contained what he objected to, the court did correct and modify it so as to meet some, if not all, of his objections. All of his objections, where proper, were completely corrected and modified by the court’s charge.

Appellant has several bills of exceptions to the introduction of certain items of testimony. None of them are full enough to show any error by the court’s ruling, and under the rules they cannot properly be considered; but, even if they could, none of them present any reversible error.

One of the grand jurors, as one of the bills shows, testified that, when appellant was before the grand jury and testified, the grand jury made a written record of part, but not all, of his testimony. The court did not err in permitting this grand juror to testify to what appellant orally testified in full before the grand jury as shown by this bill. The perjury was predicated, not upon the written record of only a part of appellant’s testimony before the grand jury, but was predicated upon his testimony as to the material matters alleged in the indictment which were testified to by him orally before the grand jury. There was no claimed conflict between the partial written statement and his oral testimony. Both his written testimony and * the oral testimony would have been admissible just as if two separate and distinct witnesses could testify as to any given fact, or as material testimony of a given witness could be introduced, and, in addition, a written admission or statement' by the accused himself.

His other bills are very meager, and claim that certain brief items of testimony by the witness Sue Tuggle, which all tended to show, and did show, that Jim Ice had seduced her under a promise of marriage, and had thereby obtained carnal intercourse with her, were inadmissible. As explained and qualified by the court, all this testimony was admissible for the purpose of establishing that said Jim Ice, in whose case Zeb Ice was testifying, had seduced her.

The evidence as a whole clearly establishes appellant’s guilt. In fact, all of the allegations in the indictment were completely proven by the necessary proof as required by the statute.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case is before the court upon appellant’s motion for rehearing.

Appellant’s first contention is that the indictment is insufficient. We think the indictment is in all respects good. We overrule all of the appellant’s assignments of error except those complaining of the court’s action in permitting the testimony of the witness Sue Tuggle.

This is a case in which appellant was indicted for giving false testimony before the grand jury which was investigating a charge against a certain other person for the alleged seduction of Sue Tuggle. Appellant testified on that investigation as to his own criminal relations with the prosecutrix.

Testimony is not admissible except it affects, to some appreciable extent, the truth of the issue joined, which in this case was whether or not, before a grand jury investigating a seduction case, Zeb Ice told the truth when he said that he himself had been criminally intimate with the alleged prosecu-trix. The young woman was permitted to testify over the objection of appellant as to the acts and conversations of her allegéd seducer in the consummation of that offense, and to the birth of her baby, it not being claimed that appellant was present at, or in any way connected with, any of these matters testified about.

We are unable to see how this testimony shed any light on appellant’s guilt or innocence, and it was prejudicial. This identical question has been before this court in the case of Peyton v. State, 32 S. W. 892, and evidence similar held inadmissible in an opinion by the late lamented Judge Henderson. We agree to the correctness of Ms reasoning and the soundness of his judgment.

The motion for rehearing ⅛ granted; the case reversed and remanded.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: HARPER, C. J.

license: Public Domain

text:
    ÆTNA LIFE INS. CO. v. KING.
    (No. 884.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 9, 1919.
    On Rehearing, Jan. 30, 1919.)
    1. Insurance <§=>300 — Declarations—Short Poem Application.
    A short form application for additional insurance held susceptible of meaning only that declarations, concerning applications for insurance in other companies, in the original application, were true when made.
    2. Insurance <©=>264(2) — Representations— CONSTRUCTION.
    Doubt as to meaning of statements in a short form of application, which was presented to insured filled out as signed, will be resolved in favor of enforcement of the policy.
    3. Insurance <§=>255 — Misrepresentations— When Matebial.
    A misrepresentation in an application for life insurance is material, under Rev. St. 1911, art. 4741, when knowledge of the truth by the insurer might reasonably have caused it to refuse to issue the policy.
    4. Insurance <§=>GG8(6) — Misrepresentations — Declarations in Application-Questions foe Juey.
    In action on life policy, whether declaration in application as to cause of death of insured’s brother and as to insured’s use of alcoholic or malt liquors was material, within meaning of Rev. St. 1911, art. 4741, held for jury.
    5. Appeal and Error <§=>688(2) — Matters Reviewable — Bill of Exceptions.
    Complaint cannot be made of argument of counsel that testimony of a certain witness should not be believed on the ground that the opposing party had not produced other witnesses when in fact such party had offered to account for the absence of other witnesses, where the bill of exceptions does not show what the absent witnesses would testify to.
    6. Trial <§=>141 — Question foe Jury — Admitted Facts.
    Where defendant insurance company admitted that plaintiff had good cause of action except so far as it might bo defeated by facts to be established on the trial, it was not error to refuse defendant’s request to submit to the jury whether or not attorney’s fees sued for were reasonable; no evidence having been introduced upon that question.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by Mrs. Mary R. H. King against the ADtna Life Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wm. J. Moroney, of Dallas, and W. S. Berkshire and Jackson & Isaacks, all of El Paso, for appellant.
    J. F. Woodson, O. R. Armstrong, and Lea, McGrady & Thomason, all of El Paso, for appellee.

      Writ of error denied by Supreme Court March 2G, 1919.

   HARPER, C. J.

This is a suit by appellee, Mary R. H. King, widow of Silas L. King, to recover of appellant, iEtna Life Insurance Company, on two life insurance policies for $25,000 each, or $§0,000, interest at 12 per cent., statutory damages, and $12,000 attorney’s fees. The cause was submitted to a jury upon special issues, and upon the answers thereto judgment was entered for the full amount sued for.

The defenses are that:

(а) The policies were procured with suicidal intent; (b) actual suicide within one year from the issuance of the policies; (c) that he falsely represented that his brother died of alcoholism, while he was in fact a suicide; (d) that he misrepresented the facts as to his own use of alcohol; (e) and that after deceased had applied for the policies in appellant company, and before delivered, he made application to the Kansas City Life for a policy and failed to notify appellant of that fact.

The jury found:

(1) That Silas L. King did not commit suicide.

(2) That he did not take out the policy in contemplation of suicide.

(3) That the fact that Terry King, the brother of Silas King, committed suicide, instead of dying from alcoholism, was not material to the risk.

(4) That Silas King believed in good faith that Terry King died of alcoholism.

(5) That Silas King had never been intemperate in the use of malt or spirituous liquors.

(б) “Q. Do you find from a preponderance of the evidence that the fact, if it was a fact, that Silas L. King had been intemperate in the use of either malt or spirituous liquors, was material to the risk assumed in said policies issued by defendant on his life? Answer: No.”

(7)“Q. Do you find from the preponderance of the evidence that if deceased had communicated to the defendant that subsequent to the admission of the written application for policy, and prior to the delivery of the two policies in question in this suit to him, that he had made application on the 25th day of August, 1916, to the Kansas City Life Insurance Company, for a policy in the sum of $25,000.00 on his life, it would not have delivered to him the two policies in question in this easel Answer: No.”

Special issue No. 1 asked by plaintiff:

“Do you believe from the evidence that when Silas King signed the second application to do-* fendant called ‘short form of application’ dated August 31, 1916, he thereby intended to represent to defendant that he had not applied to the Kansas City Life Insurance Company for a policy of insurance? Answer: No.”

Statement of the Case.

Silas L. King; after haying been frequently solicited to do so for more than a year, on July 30, 1916, made application to the ¿Etna Life Insurance Company for a life policy of $25,-00Ü. When this application was sent in by Me-Knight, general soliciting agent for the company at El Paso, Tex., as the latter expressed it, “I thought it possible to deliver him more insurance and so wrote the company.” As a result, the company sent in two policies of $25,000 each, and a short form application accompanied the second policy, to be filled out, with additional medical examination, after which both policies were delivered. Notes were taken for the first annual premiums. The company received its money, and the notes have been paid. The first or long form of application contained the following questions and answers:

Q. Have you ever been intemperate in the use of either malt or spirituous liquors? Answer : No.
Q. Do you use either malt or spirituous liquors daily or nearly every day? Answer: No.
Q. (a) If used at all, what kind; (b) how often, and what quantity? Answer: Do not use any of any kind.

It was agreed that the letters “DK” in the application meant, “Don’t Know.” It. also contained the question and answer:

(g) “What amount of insurance is now in force on your life, and in what company or association ? Answer: $2,500.00 National Life.”

The short form application upon which the second policy for $25,000 was issued, as applicable to this opinion, reads:

“I hereby apply to the ¿Etna Life Insurance Company for a contract of insurance upon my life, and I declare that I am in sound health, and now repeat all the declarations, statements and answers signed by me in an application to said company dated July 28, 1916, on which contract No. 161373 was issued, and make them a part of this application, with the exception of such answers as are given below, and.I hereby agree that the declarations, statements and answers repeated as above, together with those given below, are complete and true and that they shall form a part of the contract or policy to be issued by said company upon my life.”

In the “answers given belo-w” in said second or short form of application, there were no answers that modified in any way the statements and representations made in said original application, dated July 28, 1916, heretofore quoted.

Attached to and made a part of each policy was a copy of said original application, and in addition a copy of said second application, which was dated August 28, 1916, was attached to and made a part of said policy 161374. The short form application was signed September 1, 1916. On August 25, 1916, King had made an application to the Kansas City Life Insurance Company for $25,000 insurance, which was subsequently issued; ,the short form application did not mention this fact.

The failure of King to reveal that the Kansas City Life Policy had been applied for since the original application was made could not be held to be a misrepresentation of fact, nor was it a failure to answer any question in either the short or long form of application. Appellant contends that question No. 8 in the first application required the insured to reveal, by his answers to the questions in the second or short form application, that he had applied for this policy. The question reads:

“Has any proposal or application ever been-made or-submitted to any company, association, agent or physician for which insurance on your life is now pending, or has not been granted for the full amount, and of the same kind as applied for? If so, state particulars, and the names of all such companies, etc. Answer: No.”

But as we view the facts, the appellant’s policies were “ordinary life, commercial nonparticipating .policies,” annual premium-($798.50). The Kansas City policy was ordinary life (not commercial) premium $807.50, so “not of the same kind as applied for.” At least, the question was of doubtful meaning at the time the short form application was-signed, and this is so in another respect. The-short form was presented to King, filled out as signed, and is susceptible of the meaning that the declarations in the original application were true when made. The question being of doubtful or obscure' meaning, it will be construed in favor of enforcement of the-policy. Mutual Life Insurance Co. v. Ford, 61 Tex. Civ. App. 412, 130 S. W. 769. The-testimony of the representatives of the company clearly indicates that, under all the-facts, these policies would have been issued had they known that the application for the-Kansas City Life policy had been made. At least, it does not so affirmatively appear therefrom that it probably would not have been issued had they possessed the knowledge as to justify the court (if it is a question for the court) in holding that the failure of Silas L. King to make a true answer was material.

The fourth assignment raises two questions: That the finding of the'jury that Silas U. King did not take out the policies in contemplation of suicide, and the finding that he did not commit suicide, are contrary to the overwhelming weight and preponderance of the evidence.

There is abundance of evidence to sustain the jury’s findings as to both propositions. It could serve no good purpose to quote it, so the assignment is overruled.

The first and third urge that the statements in the application for insurance that Terry King, a brother to insured, died of “alcoholism,” when in fact he suicided, and the statement that he (Silas King) did not use alcoholic or malt liquors of any kind, when in fact he was addicted to their use to some extent, were material representations as a matter of law; therefore void the policies.

That the facts indisputably establish the materiality of the misrepresentations, therefore the question should have been determined by the court and should not have been submitted to the jury.

A misrepresentation in the application for' policy is declared by the courts to be material when knowledge of the truth, by the company, might reasonably have caused the company to refuse to issue the policy. Article 4947, Vernon’s Sayles’ Statutes of Texas, reads:

“Any provision in any contract or policy of insurance issued or contracted for in this state, which provides that the answers or statements made in the application for such contract, or in the contract of insurance, if untrue or false, shall render the contract * * * void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it be shown upon the trial thereof that the matter or thing misrepresented was material to the risk or actually contributed to the contingency or event on which said policy became due and payable and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case,”

If the great preponderance and weight of the evidence, as contended by appellant, was to the effect that the representations were not made ip good faith and that they were in fact material in that the company would not likely have issued the policies, if the answers had conveyed the exact truth to it, then it must be conceded that the questions should not have been submitted to the jury; but such a proposition is not supported by the record. The answer as to the cause of the death of his brother was made under the form for “Family History” as above indicated. There is no evidence in the record that tends to indicate that the deceased’s “family history” as to the cause of the death was otherwise than as declared by the answer. Upon the other hand, the only positive testimony is that the answer was true as to family history, that he had been told that alcoholism was the cause of the death, and there is no evidence that he had ever been otherwise informed, but, to the contrary, his acts and statements showed that he in fact believed his statement to be true. It is in evidence that he admonished his boys to avoid the use of alcohol, and.cited their Uncle Terry’s death as an example of the evil consequences of the excessive use of it. In fact, the record does not disclose the manner in which Terry King suicided. It may have been by the excessive use of alcohol. However, it seems a logical conclusion to pndulge that the information to the company that his brother suicided by some means would not have been considered more seriously in determining upon the issuance of the policies than the fact that he caused his own death by the excessive use of alcoholic liquors, because they are not materially different.

That the answer of Silas King that he himself did not use alcoholic or malt liquors of any kind, when in fact, if it was. a fact, he did to a certain extent so use it, influenced the company to issue the policy when if it had been correctly informed it would not have done so, seems conclusively refuted by the fact that the company had a report from the Retail Credit Company that Silas King did take an occasional drink, and, notwithstanding this report nearly two months prior to King’s death, it did not cancel the policies. In fact, there is no evidence in this record that he indulged in alcoholic drinks at all at the time he signed the application. So if the credit company did in fact find that he took an occasional drink after the application was signed, this fact would not be proof that his answer was untrue at the time made, so clearly these were questions properly submitted to the jury. Blackstone v. Kansas City Life Insurance Co., 107 Tex. 102, 174 S. W. 821; Guarantee Life Insurance Co. v. Evert, 178 S. W. 643.

The second assignment consists of a verbatim copy of four separate paragraphs of the motion for a new trial, and each paragraph raises a distinct question. They are not propositions within themselves, so, as an assignment of error, are multifarious and should not be considered; but we have concluded to pass upon the two propositions which follow, because they are in a sense akin to the points discussed next above. The propositions are:

1. “A verdict contrary to the positive, un-contradicted, and unimpeached testimony of a single witness should be set aside, and on appeal it should be disregarded.” It is asserted that the testimony of witness Bailey is to the effect that Silas King had been intemperate in the use of spirituous and malt liquors; hence his answer, “No,” to the question, “Have you ever been intemperate in the use of either malt or spirituous liquors?” was untrue. The testimony of the witness will not bear out the charge in this assignment. He said that he had known King from 1914 to his death; had seen him take a drink which he made himself called wine and' whisky; that he thought it had alcohol in it, but that he had never seen him intoxicated that he could tell, neither does the record bear out the charge that the testimony is un-contradicted. Mrs. King testified:
“My husband did not use intoxicants in any form since our marriage. I never knew of him using intoxicants in any form.”

Appellant introduced in evidence the report of Jordan Reporting Company, which shows that he was not a user of intoxicants; also, the report of Retail Credit Company, which showed that King took an occasional .drink with a friend, etc. So the truth or falsity of this answer was a question for the jury as well as its materiality.

In this connection, in the same assignment, appellant complains of the argument of one of the counsel for appellee that the testimony of witness Bailey should not be believed, on the ground that the defendant had not produced other witnesses to the same effect, when in fact defendant had offered to account for the absence of other witnesses. This was not error, because the bill of exceptions does not show what the witnesses whose absence it offered to account for would testify to.

The fifth assignment, charging error in excluding the testimony of various witnesses concerning several different" and distinct matters of fact, is overruled because without merit.

The sixth is that the court erred:

“(a) In denying the appellant’s request to open and conclude the evidence and argument without making the statutory admissions; (b) in refusing a special issue as to attorney’s fees; (c) in rendering judgment as to any attorney’s fees; (d)Nand because $12,000.00 attorney’s fees is excessive.”

The record shows that defendant filed its motion to be permitted to open and close the case because under the pleadings the burden of proof of the whole case was upon the defendant, without making the statutory admissions. When this request was refused by the court, it tnade the admission that plaintiff had a good cause of action except so far as it may be defeated, in whole or in part, by the facts which may be established on the trial. It was then permitted to open and conclude in introducing evidence and argument; this admission having been made, and the jury having found appellant liable upon the policies after hearing its evidence. There having been no evidence introduced upon the question of recovery of attorney’s fees, nor as to whether the $12,000 sued for was a reasonable attorney fee, it was not error to refuse to submit these questions to the jury, for, until appellant had made some showing by its evidence which would tend to defeat plaintiff’s cause of action in this respect, it stood before the court confessing judgment for the amount sued for.

Finding no error in the record, the case is affirmed.

On Rehearing.

By the motion for rehearing, our attention is called to the fact that we quoted a portion of article 4947, Revised Statutes of Texas, as applicable to the questions under discussion. We think it clearly appears that the observations 'had for their basis the provisions of articles 4741, 4959, Rev. St., passed in 1909:

“No policy of life insurance shall be issued or delivered in this state, or be issued by a life insurance company organized under the laws of this state, unless the same shall contain provisions substantially, as follows: * * * (4) A provision that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.”
“No recovery upon any life, accident or health insurance policy shall ever be defeated because of any misrepresentation in the application which is of an immaterial fact and which does not affect the risks assumed.”

We therefore withdraw that portion of the opinion and substitute the above in its stead.

For a full discussion of the applicability of the two statutes to the points at issue in this case, we refer to Guaranty Life Insurance Oo. v. Evert, 17S S'. W. 643.

With this correction, the motion is overruled.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, O. J.

text:
    MILLS v. ROBINSON.
    (No. 904.)

    (Court of Civil Appeals of Texas. El Paso.
    Jan. 9, 1919.
    Rehearing Denied Jan. 30, 1919.)
    1. Carriers &wkey;>283(2) — Injuries to Passenger-Liability oe Master.
    The master, owner of an elevator, could not have contemplated that employés engaged in operating and repairing an elevator would go outside of their prescribed duties and unnecessarily frighten and injure a passenger therein by idle talk of danger of falling.
    2. Carriers &wkey;>293 — Elevators—Injury to Passenger.
    As the electricity for propelling an elevator will at times be cut off, the mere stopping of an elevator thereby was not in any sense a wrongful act toward a passenger, where there was no physical injury caused by it.

      3. Oaeeiers <&wkey;283(2) — Injuries to Passenger — Acts oe Servants — Scope oe Authority.
    Where one employed to repair an elevator talked of the danger of the elevator’s falling, in the presence of a passenger, causing her injury from fright, the master was not liable therefor; such being outside the scope of em-ployé’s authority.
    Appeal from District Court, El P.aso County; P. R. Price, Judge.
    Action by Ada Mae Robinson against An-son Mills. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Beall, Kemp & Nagle and R. C. Walsbie, all of El Paso, for appellant.
    Jackson & Isaacks,' of El Paso,, for ^appel-lee.

      writ of error denied by Supreme Court March 26, 1919.

   HARPER, O. J.

Ada Mae Robinson brought this suit against Anson Mills for $20,000 damages, and for cause of action she alleged: That the defendant is the owner of an office building in El Paso, Tex.; that for the convenience of the tenants several elevators- are maintained»; that she was employed as bookkeeper, etc., by one of the tenants of said building; that while she was in one of the elevators it came to a stop between floors, in such position as that she could not got out of same by the ordinary exit, and the only way she could get out was by climbing out on a ladder through a small opening at the top; that the operator of the elevator and the person whose duty it was to keep the elevator in repair, viz. Dan Stedham, and two Mexican boys, were all that were in the elevator at the time ;■ that, well knowing there was no danger, said Stedham stated that the fuse had burned out and that the elevator might drop to the bottom of the shaft at any time, and by both words and manner impressed upon her the great danger ■of death in which slie was placed; that the ■defendant’s other agent, Eletcher, the operator of the elevator, heard what Stedham said, and stood by and negligently failed and refused to advise or tell plaintiff that there was no danger in said elevator falling, as it was his duty to do; that plaintiff was entirely unfamiliar with the operation of an elevator and its machinery, was already alarmed at its unexpected stopping, and this alarm was greatly increased and aggravated by said language and to such an extent as to-cause a great physical shock and pain, etc.; that by reason of the defendant having permitted its elevator to get into such defective condition, and the further negligence of said mechanic in frightening plaintiff, her nervous system was shocked, health injured to such an extent as that she has since been unable to pursue her business.

The answer is a general demurrer and general denial. There is evidence in support of the allegations of plaintiff’s petition, except that there is none that the elevator was defective, nor that it stopped was attributable to any negligence upon the part of defendant or his agents.

Tried by jury, and verdict and judgment for $5,000, from which this appeal.

There are a number of questions presented by appellant; but we have concluded that only certain ones need be discussed, because they are conclusive of the appellee’s right to recover.

It is urged that the court erred in submitting the issue of liability to the jury because: (1) There is no evidence that the act on the part of defendant’s agents, servants, or employés was committed while acting within the scope of their authority; (2) there is nothing to show that it could have been reasonably anticipated by any reasonably prudent person that injury would result to plaintiff because of any £.ct or thing done or omitted to be done, by said agents and employes, in view of the fact that there is no evidence of defects in the elevator. There is no contention in this case that there was any defect in the elevator, nor that it was negligence upon the part of the defendant to permit it to stop. The court did not submit this as a basis for a recovery. So if there was any act of negligence which was the proximate cause of the injury, it was solely the statements of Sted-ham and the failure of the operator to deny them. Stedham was employed by the defendant to keep this elevator in running order. It was no part of his business to operate the elevator in carrying passengers to their respective destinations in the building, or in any way to look after their welfare, except in so far as keeping the elevator in running order contributed to that end. ' And it Is equally clear what the duties of the operator of an elevator are. Whilst it was charged that the operator’s duty was to advise or tell plaintiff that there was no danger in the elevator falling, and that he failed to do so, there is no evidence that he heard the statements made by Stedham, nor is there any upon the subject of failing to allay her fears, but, on the other hand, he and Stedham both testify that no such conversations as charged to Stedham occurred. So if the operator of the elevator was chargeable, under the law, with the duty of protecting the passengers on his car, as is held in railroad negligence cases, then there is no proof that he did not do so. So it seems clear that it could not have been contemplated by the defendant that they would go outside of their prescribed duties and commit any act by words or deed which would have a tendency to frighten a timid passenger. This was no part of the master's duties to which they were put to work, and could not have been anticipated. The doctrine is well stated in 3 Labatt on Master and Servant (2d Ed.) art. 1042:

“A person is not answerable at law for a failure to avert or avoid peril that could not have.been foreseen by one in like circumstances, and in the exercise of such care as would be characteristic of a prudent person so situated. In other words, it is not negligence to fail to provide against an accident of such a nature that nobody could have foreseen it, and that no prudence could have anticipated the need of guarding against it. After an accident has occurred, it may be easy to see what would have prevented it; but that of itself does not prove, nor tend to prove, that reasonable or ordinary care would have anticipated and provided against it.”

It is a matter of common knowledge that the electricity which constitutes the power that propels an elevator will at times be cut off or cease to flow, and that as a consequence the elevator must stop, so the mere stopping of the elevator was not in any sense a wrongful act, where there was no physical injury caused by it, so, if there was a proximate cause of the- injury depicted in this case, it was alone the idle talk of the employé Stedham, for which the defendant is in no way liable, because it was no part of his master’s duties, and therefore he (Mills) could not have anticipated the need of guarding against it. Therefore the defendant was not guilty of negligence and is not liable for the injury charged.

The cause must therefore be reversed and rendered, and it is so ordered.

Reversed and rendered.
      <g=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: HODGES, J.

text:
    PERDUE v. PERDUE et al.
    (No. 2026.)

    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 20, 1918.
    Rehearing Denied Jan. 2, 1919.)
    1. Courts <&wkey;202(2) — Probate Courts — Procedure.
    In probate matters originating in the county court there is less strictness required in pleading than is common in suits of law in ihe same court or in the district court, especially where averments whose sufficiency is questioned relate to matters which opposite parties must affirmatively establish.
    2. Wiles <&wkey;277 — Probate—Objections to Probate — Pleading Revocation.
    In view of Rev. Civ. St. art. 3271, making it incumbent upon proponent to prove that will has not been revoked, allegation by contestant in proceedings to probate unproduced will under article 3272 that testator, “while sane, executed the will alleged by proponent, that afterwards, while sane, he revoked the same,” held objectionable as not specific as to manner in which will was revoked.
    3. Wills <&wkey;322 — Probate—Proceedings— Examination of Witnesses.
    It is court’s duty in proceeding to probate a will, whether contested or not, to elicit from witnesses, when deemed necessary, any material facts bearing upon issues to be determined.
    4. Witnesses <S==j131 — Transaction with Deceased — “Suit.” •
    A contested application to probate a will is a “suit” within Rev. Civ. St. art. 3699, prohibiting an interested party in suit by the heirs and executors from testifying as to any transaction with or statements by testator, unless called by opposite party.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Suit.]
    5. Witnesses <&wkey;>139(9) — Competency — Transaction with Deceased — “Interested Party.”
    An heir is an “interested party” within Rev. Civ. St. art. 3690, prohibiting an “interested party” in suit between heirs and executor from testifying as to any transaction with or statements by testator, unless called by opposite party, although he did not actively participate ⅛ the will contest by joining in the pleadings.
    6. Wills &wkey;>423 — Conclusiveness of Probate — Heir.
    A judgment in will contest is conclusive as to rights of heir, although heir did not actively participate in the contest by joining in the pleadings.
    7. Witnesses c&wkey;159(3) — Competency — “Transaction with Deceased.”
    In will contest involving question of whether testator revoked will, testimony of an heir that testator directed witness to get will, and after having so done testator tore will in two and told witness to light match, and then held papers over flame in the hands of witness until they were consumed, was incompetent, being as to a transaction with deceased within Rev. Civ. St. art. 3690.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transaction.]
    8. Wills <&wkey;423 — Probate — “Proceedings in Rem.”
    Proceeding by which wills are proved for record and established as muniments of title are actions in rem, and judgments rendered therein are binding upon every one.
    [Ed.- Note. — For other definitions, see Words and Phrases, Second Series, Proceeding in Rem.]
    9. Witnesses <&wkey;178(4) — Transaction with Deceased.
    Under Rev. Civ. St. art. 3699, prohibiting testimony of interested party as to transaction by deceased in suit between heirs and executor, unless called by opposite party, proponent having called heir as witness in county court to testify as to transaction with deceased, the testimony reduced to writing under articles 3273-3275 was competent in district court.

      10. Appeal and Ekrok <&wkey;232(2) — Objection —Waives .
    Ground of objection to evidence not urged in lower court is not available on appeal.
    Appeal from District Court, Bowie County; H. E. O’Neal, Judge, f
    Proceedings to probate a will by J. S. Per-due, contested by Queen A. Perdue and others. Judgment of county court for contestants affirmed by district court, and proponent appeals.
    Affirmed.
    Turner, Graham & Smitha, of Texarkana, for appellant.
    Mahaffey, Keeney & Dalby and Wheeler & Wheeler, all of Texarkana, W. T. Williams, of Angleton, and S. E. Caldwell, of Mt. Pleasant, for appellees.

      writ of error granted by Supreme Court March 19, 1919.

   HODGES, J.

In April, 1916, T. J. Crawford, now deceased, made a written will in which he devised all of his property that remained after the payment of his debts and funeral expenses to his nephew, J. S. Perdue, the appellant in this suit. By the terms of the will Perdue was appointed independent executor without bond. After its formal execution the will was delivered into the possession of Perdue, who retained it until some time during the following month, when it was delivered by him to E. A. Crawford, a brother of the deceased testator. At the time Perdue delivered the will he was paid by E. A. Crawford the sum of $250, a part of which was in cash, and the remainder a vendor’s lien note. There is some conflict in the evidence as to whether this payment was made in consideration of services previously rendered by Perdue to decedent, or in satisfaction of Perdue’s interest in the will. Immediately after this transaction F. A. Crawford moved his brother T. J. Crawford to the former’s residence in Cass county, • Tex. Some time during the month of June following T. J. Crawford died. He left no wife or child, but was survived by brothers and sisters and nephews and nieces who would have inherited an interest in his estate had he died intestate. In September, 1916, the appellant filed am application in the county court of Bowie county for the probate of the instrument executed by T. J. Crawford as his last will and testament. Being unable to produce the will, appellant proceeded under the provisions of article 3272 of the Revised Civil Statutes, which prescribes the manner for probating written wills which cannot be produced. The probate of this will was contested by the collateral relatives of the deceased and by Earl Harris, who claimed to be an adopted son of T. J. Crawford and his deceased wife. The principal ground urged in the contest was that the will liad been revoked. In the trial in the county court the appellant called as a witness F. A. Crawford, and elicited from him testimony of which the following is the substance: Witness resided in Cass county, Tex., and was a brother of T. J. Crawford, the deceased. The latter died at his house on the,- day of June, 1916. lie was there 24 days prior to his death. lie was about 70 years of age. Approximately 10 days before the death of T. J. Crawford, at noon, the witness was sitting at his dinner table, when his son Asbury called to him from an adjoining room to come in there. He responded, and found his brother on a cot with three cuts on one side of his throat, and two on the other. All of the cuts were bleeding. A razor was lying on the organ. Asbury had taken it from the deceased. When witness entered the room he asked, addressing his brother, “What do you mean?” The latter said, “Death would be sweet; you told me you would not leave me.” Witness did not know whether T. J. Crawford was trying to commit suicide or was testing his razor. That morning Asbury had, at the request of deceased, sharpened the razor and left it with him. On that same evening T. J. Crawford tore up his will. He asked witness what had become of the will and other papers. Witness replied that they were in witness’ coat pocket in another room. Deceased directed witness to bring them to him. He was at the time lying on the cot near the fire. Deceased then tore them in two himself, and told witness to stick a match to them; and when they blazsd deceased threw them into the fireplace. One of the papers torn up and destroyed was a will, and the other was what is called “adoption papers.” T. J. Crawford’s name was signed to that will, and his signature was witnessed by two of the Huckabees, whose initials witness did not remember.

This, together with other testimony, was reduced to writing and made a part of the record as required by statute. From an order by the county court refusing the probate of the will the proponent appealed to the district court. In the trial in the district court the following special issues were submitted to the jury:

“(1) Did T. J. Crawford in his lifetime destroy the will which the evidence shows that he executed in the presence of J. M. and J. E. Huckabee?
“(2) If you answer the foregoing question in the affirmative, then you are asked the following: Did T. J. Crawford at the time such will was destroyed possess testamentary capacity?
“(3) Did J. S. Terdue accept $150 in money and the vendor’s lien note delivered to him by E. A. Crawford in full settlement and satisfaction of all his rights under the will executed by T. J. Crawford?”

Each, of these questions was answered in the affirmative, and upon those answers an order was entered refusing the probate of the will.

Taking in their chronological order the rulings of the court complained of, we come first to a group of assignments which attack the action of the court in overruling appellant’s exceptions to certain portions of the pleadings of the contestants. The latter had pleaded generally “that, if T. J. Crawford in his lifetime, and while sane, executed the will alleged by proponent, thjit afterwards, while sane, he revoked the same.” This fact, if true, was a good defense, and the only purpose of the exceptions was to require the contestants to be more specific and state the manner in which the will was revoked. One who applies for the probate of a will has the burden of proving the following facts: (1) That the testator at the "time of executing the will was at least 21 years of age, or was married, that he was of sound mind, and that he is dead; (2) that the court has jurisdiction of his estate; (3) that citation has been served and returned in the manner and for the length of time required by law; (4) that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; (5) that such will has not been revoked by the testator. Rev. Civ. Stat. art. 3271. If the will be a written one and cannot be produced in court, the proponent must further prove the cause of its nonproduction, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced. Rev. Civ. Stat. art. 3272. While permitting the interested parties to appear and resist the probate of a will, the statute prescribes neither the form nor the essentials of a contest. In probate matters originating in the county court there is less strictness required than is common in suits of law in the same court or in the district court. Robinson v. Stuart, 73 Tex. 267, 11 S. W. 275. This is especially true when the averments whose sufficiency is questioned relate to matters which the opposite party must affirmatively establish. In view of the burden imposed by statute upon the proponent in this instance to prove that the will he sought to probate had not been revoked, we think the pleadings of the contestants were sufficiently specific. It is the duty of the court in proceedings to probate wills, whether' contested or not, to elicit from witnesses brought before it, when deemed necessary, any material facts bearing upon the issues to be determined. Hopf v. State, 72 Tex. 281, 10 S. W. 589. There was no error in overruling the exceptions.

The contestants also pleaded that J. S. Perdue, the proponent, had during the lifetime of T. J. Crawford received full satisfaction for the testator for the bequest made in his favor, and therefore had no further interest in the will and was not authorized under the law to probate it. That ground of contest was excepted to because of its legal insufficiency, and the overruling of that exception is the basis of another assignment of error. Assuming that the court did err in refusing to sustain that exception, in view of the disposition which we think should be made of the case" upon other findings of the jury, that ruling should not cause a reversal of the judgment.

On the trial in the district court the proponent, in making out 'his case, did not introduce P. A. Crawford as a witness, or use that portion of Crawford’s testimony taken in the county court wherein the witness detailed the facts relating to the destruction of the will. Proponent did, however, offer in evidence and use a portion of Crawford’s testimony taken in the county court which tended to show that in the opinion of the witness his brother T. J. Crawford was at the time of the destruction of the will insane. Both before and after this latter testimony was introduced by the proponent the contestants were permitted, over his objection, to read from the record of the evidence taken in the county court that portion of the testimony of E. A. Crawford wherein the witness described the destruction of the will by T. J. Crawford, the substance of which has already been quoted. The objection urged was that, this being a suit .between the heirs of T. J. Crawford and an executor of his will, and the witness being an interested party, he was disqualified under article 3690 of the Revised Civil Statutes to testify at the instance of the contestants “as to any transaction with,-or statement by,” the testator.. -The appellants justified the introduction of that testimony upon two grounds:. (1) They say that the nature, of this suit and the facts detailed by the witness do not come within the provisions of the statute referred to; and (2) that the witness had been called to testify to those facts in the county court by the appellant, and that either party had a right to avail himself of that testimony on appeal to the district court. That a contested application to probate a will is a suit within the meaning of article 3690, which prohibits an interested party from testifying as to any transactions with or statements by the testator, intestate, or ward, unless called thereto by the opposite party, seems to be well settled. Lewis v. Aylott, 45 Tex. 190; Clark v. Briley, 193 S. W. 421; Ross v. Kell, 159 S. W. 119; Leahy v. Timón, 204 S. W. 1029. The probate of this will is resisted upon the ground that it was revoked by the testator, and the transaction relied upon to show- a revocation is the" foundation of the defense urged by the contestants. It is true that this witness had not joined in the written contest seeking to defeat the prohate of this will, but he was none the less an interested party. If the probate of the will should be defeated, he. would gain an inheritable interest in the estate of his deceased brother, and, if the contest failed, he would lose that interest. The fact that he did not actively participate in the contest by Joining in the pleadings did not prevent any Judgment that might be rendered from concluding his rights to the same extent it did those who were actual parties to the pleadings. Clark v. Briley, 193 S. W. 421. The objection of the appellant applied not only to that portion of the testimony wherein the witness Crawford narrated the statements made to him by the testator, and transactions in which the witness participated, but to that which described the conduct of the testator in destroying the will. If any portion of this testimony was free from the objection made, the ruling of the court was correct.

The possibility of separating, without affecting its probative value, that portion of the testimony objected to, wherein the witness described the acts of the testator in tearing the will into fragments, from those portions wherein he repeated declarations made by the testator to the witness, and transactions in which both took part, has suggested that the objection was probably too comprehensive to be sustained. The important fact which the contestants were undertaking to prove was that the testator had deliberately destroyed his will. It was immaterial how he secured possession of the instrument, if he afterwards disposed of it in a manner legally sufficient to constitute a revocation. The question then arises: If he performed the act relied upon unaided by the witness or any third party, is that act a transaction concerning which an interested party to the suit may not testify? The statute uses the language “transaction with,” implying that it must be one in which another party also participates. From this it might be inferred that, if the testator, while alone, performed the act of destruction, an interested party who witnessed that conduct would not come within the disqualification prescribed. In the case of Parks v. Caudle, 58 Tex. 216, the Supreme Court held that the terms of the statute were not limited to transactions between the deceased and thjé witness, but included those between the deceased and third parties as well. In that opinion the court uses language which is broad enough to imply a ruling that the statute includes unilateral as well as bilateral transactions participated in by the deceased. An examination of the facts of that case, however, will show that the transaction to which the objectionable testimony related was the execution and delivery of a deed by the deceased to a grantee under whom some of the parties to that suit claimed title. In a later case, that of Martin v. McAdams, 87 Tex. 225, 27 S. W. 255, the Supreme Court held that the daughter of a deceased testator could testify that the signature of her father to a will under which she claimed was genuine. In the course of the opinion Justice Gaines uses this significant language:

“The making of a will is a transaction, but it is not a transaction of the testator with the devisees or legatees. The only participants in it are the testator and those whom he may call upon to witness that it is his last will and testament. The devisees may have nothing to do with it, and may, in fact, be ignorant of its existence, until after the death of the testator.”

This language Justifies the conclusion that, if the transaction is one which did not occur between the deceased and the witness, nor with pne under whom the witness claimed the rights in controversy, the statute does not apply. But in this case it appears to the writer that P. A. Crawford, the witness, was so intimately connected with the transaction of destroying the will that there can be little room for doubting his disqualification unless called by the opposite party. According to the testimony of this witness, the testator directed him to get the will and deliver it to the testator, and this was done; that after tearing the will in two the testator told the witness to light a match, and then held the papers over the flame in the hands of the witness until they were consumed. It is true that the fact of destruction was the subject of the inquiry; and, had it been completely performed by the testator when alone or unaided by any one else, there might be a reason for saying that any observer, whether interested or not, would be competent to testify concerning the deed. But that was not the case in this instance.

The next question is: Was Crawford called by the appellant? Articles 3271 and 3272 prescribe the facts which must be proved in order to probate a will. The three succeeding articles are as follows:

“Art. 3273. All testimony taken in open court upon the hearing of an application to probate a will shall be committed to writing at the time it is taken, and subscribed in open court by the witness or witnesses, and filed by the clerk.
“Art. 3274. Upon the hearing of an application for the probate of a will, if the court be satisfied from the evidence that such will should be admitted to probate, an order to that effect shall be entered upon the minutes; and such will, together with the application for the probate thereof, and all the testimony in the case, shall be recorded in the minutes; provided, that the substance only of depositions shall be so recorded.
“Art. 3275. A certified copy of such record of testimony may be read in evidence on the trial of the same matter in any other court when taken there by appeal or otherwise.”

It is evident that these provisions for the perpetuation of the evidence upon which, wills are admitted to probate are designed for some useful purpose more general than the mere convenience of the party at whose instance particular testimony may he elicited in the county court. Wills may be, and often are, important muniments of title by which valuable real estate is held. The proceedings by which they are proved for record and established as muniments of title are actions in rem, and judgments rendered therein are binding upon every one. In view of the important property rights that may be concluded in actions conducted without service of actual notice upon those who may be interested in the subject-matter, article 5090 of the Revised Civil Statutes permits the institution of suits to set aside judgments probating wills at any time within four years after their rendition. Doubtless one purpose of the Legislature in requiring the testimony in original applications to probate wills to be reduced to writing and incorporated in the minutes of the probate court was to preserve a record of evidence available for use in future efforts to set those judgments aside, as well as on appeals to the district court. The appellant in this ease had the option in the trial in the county court to use or not use F. A. Crawford as a witness for the purpose of proving the destruction of the will and the circumstances under which it occurred. Having called Crawford in the county court, appellant made him á competent witness by which-to prove the transactions and the declarations elicited. This competency was not. lost by the appeal to the district court. After the introduction of that evidence and its incorporation in the record, article 3275 of the statute authorized its use by the other parties in that appeal. We therefore conclude that there was no error in overruling the objection of the appellant to the introduction of that testimony.

The appellant introduced in evidence in the trial of the district court the following excerpt from the record of the testimony of the witness F. A. Crawford:

“During the 23 days that he was at my house he did not sit up a minute. During that 23 days I think he was crazy, and don’t think that he had any mind. He used a cot and the bed also. Every few minutes he would want to move from one to the other. When he would get on the cot he would go to moving inch by inch as if he was trying to get off of it. And every hour, not longer than that, ■ he was wanting to get up, saying that his bowels was going to move. A half dozen times or more they would move when he didn’t know anything about it. I would have to wash him. Frequently he would take what he would call cramps, and you would have’to rub him; his feet and legs, and sometimes his hands. Every day and every night on that. Just as bad of a night as it was in the daytime. It was necessary for me or some one else to sit up by his bed to keep him from falling off his bed. From that day to the day of my brother’s death he was insane. He was not at himself at the time that he tore up the will. He was crazy at the time that he gave me that check, and didn’t know what he was doing. I thought the check, however, was good. My brother was crazy, but I thought the check would he all right. I had no scruples about cashing the check for the purpose of paying what he owed. I thought he was crazy when he tore up the will. The $150 and note for $1100 was given to Mr. Perdue in order to get the will and the adoption papers, and to pay him for his trouble in caring for my brother.”

Thereafter the contestants were permitted, over his objection, to introduce witnesses who testified that Crawford had expressed on other occasions the opinion that the deceased was of sound mind when he destroyed the will. All of this testimony was objected to upon the ground that it was immaterial and irrelevant, and that the contestants, having made F. A. Crawford their witness, could not in that manner impeach him. The testimony which the contestants produced tended to contradict the excerpt from the testimony of the witness Crawford which has been previously quoted, wherein he expressed the opinion that the testator was insane at the time he destroyed the will. That testimony was elicited by the appellant. It was admitted as original evidence in his interest, and was therefore, when used for the purpose of proving those facts, the witness of the appellant. It may be that this impeaching testimony should have been excluded upon the ground that a proper predicate had not been laid, but no such objection was urged in the trial below, and is not available here. Railway Co. v. Jackson, 93 Tex. 266, 54 S. W. 1023.

There are other assignments of error, which we deem it unnecessary to discuss in detail. All of them have been examined and considered, and in our opinion are without merit]

The judgment of the district court will therefore be affirmed.
      @=n>ITor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: WILLSON, O. J.

text:
    TEXAS & N. O. R. CO. v. HOUSE.
    (No. 2067.)
    (Court of Civil Appeals of Texas. Texarkana
    Jan. 16, 1919.)
    1. Railroads <§=>398(3) — Injuries on Track —Last Clear Chance — Sufficiency op Evidence.
    In section foreman’s action against his railroad for death of his wife, struck just as she was escaping from railroad bridge on which they had been caught by approaching train, evidence held sufficient to support finding that railroad engineer and fireman were negligent, in that they did not use due care to avoid injuring plaintiffs wife after they discovered her peyil.
    2. Railroads <§=>390 — Injuries on Track-Last Clear Chance.
    Though wife of railroad section foreman was negligent in going upon bridge with her husband, where they were caught by a train and forced to seek to escape by retracing their steps, which, resulted in wife’s death, railroad was liable; engineer and fireman having failed to exercise due care to avoid injuring wife after discovering peril.
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action hy L. I. F. House against the Texas & New Orleans Railroad Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Appellee was one of appellant’s section foremen, and with his wife lived in a house provided by appellant for its section men, situated on its line of railway 1 ½ or 2 miles east of Reklaw. Appellee got his mail at the post office in Reklaw, and his orders as section foreman from a mail box appellant maintained there. In going from their home to Reklaw, and from Reklaw to their home, appellee and his wife used appellant’s track and right of way as a road, and same were also so used by other parties so that “there .was,” appellee testified, “a well-beaten path between the rails.” Forming a part of appellant’s roadbed and track, a half mile or more east from Reklaw, was a bridge about 137 feet long. Still farther east appellant maintained a “whistling boai-d*” where its rules required its employés in charge of locomotives moving west to blow the locomotives’ whistles. Witnesses did not agree as* to the distance between the bridge and the‘ whistling board. The distance was stated by one witness to he “500 or 600, or maybe 1,000, feet,” and by another to be “1,500 or 1,800 feet, maybe 2,000.” East of the bridge the track curved southeast, and at a distance of about 400 feet entered a cut about 5 feet deep and 200 or 300 feet long. Farther east the track passed through a deep cut. On Sunday, January 27,1918, appellee and his wife, walking east from Reklaw to their home, had reached a point about the middle of the bridge referred to when they saw one of appellant’s passenger trains approaching from the direction they were traveling. Appellee testified that the train had passed west of the whistling post 400 or 500 feet when ho saw it. He at once undertook by waving his hand to advise the parties in charge of the locomotive of the dangerous position he and his wife were in, and at the same time he and his wife turned back, and, walking as rapidly as they could, endeavored to get off the bridge. It seems that they succeeded in getting off the bridge, hut that appellee’s wife, falling on the track about the time she got off the bridge, was struck by the locomotive and thrown down the embankment forming appellant’s roadbed at that point, receiving injuries which resulted in her death February 26, 1918.
    On the theory that the death of his wife was due to negligence of appellant’s employes in charge of the locomotive, appellee sued and recovered the judgment for $4,500 from which the appeal is prosecuted. On special issues submitted to them tbe jury found: (1) That the employés in charge of the locomotive failed to exercise ordinary care in keeping a lookout for persons on the track and bridge, and that such failure was the proximate cause of the injury to appellee’s wife. (2) That said employes failed to blow the whistle at the whistling post. (3) That their failure to blow the whistle was negligence, and such negligence was the proximate cause of the injury to appellee’s wife. (4) That said employ-és saw appellee and his wife on the bridge and their peril in time to have avoided injury to them by the exercise of ordinary care. (5) That the failure of said employes to exercise such care was negligence. (6) That neither appellee nor his wife was guilty of contributory negligence in going on the bridge as they did. (7) That contributory negligence on the part of appellee and his wife was not the proximate cause of the injury the latter suffered. (8) That $4,500 would compensate ap-pellee for the pecuniary loss he suffered by the death of his wife. On the evidence and findings of the jury the court rendered judgment iu appellee’s favor as stated ábove.
    •Guinn, Imboden & Guinn, of Rusk, and Mc-Means, Garrison & Pollard and Baker, Botts, Parker & Garwood, all of Houston, for appellant.
    ■Norman, Shook & •uibson, of Rusk, for ap-pellee.
   WILLSON, O. J.

(after stating the facts as above). Appellant insists its employés in charge of the locomotive did not owe to ap-pellee and his wife a duty either to warn them of the approach of the train, by sounding the whistle at the whistling board east of the bridge, or to keep a lookout for them on its track. It further insists, if said employes owed such duty and negligently failed to discharge it, that appellee and his wife were themselves guilty of such negligence as deprived them of a right to complain of its failure. It further insists it did not appear that said employes! discovered the perilous position of appellee and his wife in time by the exercise of due care to have avoided the injury to the wife. Therefore, it concludes, the trial court erred when he refused its request to instruct the jury to return a verdict in its favor.

Consideration, of the record has convinced us that, whatever may be the merit of the other contentions, the one questioning the sufficiency of the testimony to support a finding that appellant’s said employes were guilty of negligence, in that they did not use due care to avoid injuring appellee’s wife after they discovered her in the perilous position she occupied on the bridge, is untenable.

It appeared from testimony that appellant’s track ran through a deep cut 1,000 or more feet southeast of the bridge, and from the cut toward the-bridge curved northwest, so that the engineer’s view of the track as the train moved towards the bridge was obstructed by parts of the locomotive. The engineer testified that1 he was keeping a careful lookout ahead, and saw appellee and his wife as soon as a person occupying the position he occupied on the engine could have seen them. He said he was within 200 or 300 feet of them before he saw them. Other testimony established with reasonable certainty that he could have seen appellee and his wife when he got within 560 feet of them. The fireman’s view was obstructed as the engineer’s was, and it was shown that in the position he occupied on the locomotive he could have seen appellee and his wife before or about the time the locomotive emerged from the deep cut referred to, or when the locomotive was 1,000 or more feet from the bridge. The fireman, however, testified that he was working with the injector when the engine emerged from the cut, and that he did not see appellee and his wife until after the engineer discovered them. Appellee testified that, traveling at the speed it was moving, the train could have been stopped in from 300 to 500 feet. Appellant’s witness Delafield “guessed” it. could be stopped in from 200 to 300 feet by using the emergency brake. The engineer testified it could have been stopped in from 600 to 800 feet, and the jury might have found, from his estimate of the distance he was east of appellee and his wife when he first saw them and the distance the train was west of them when it stopped, that he actually stopped the train within 537 feet of the place where he was when he first saw appel-lee and his wife. The jury had a right to conclude from testimony referred to that the engineer, in the discharge of his duty to keep a lookout ahead, should have discovered ap-pellee and his wife in the perilous position they occupied on the bridge when he was as far as 560 feet east of them. From the fact that he could have then discovered them that far away, and from his testimony that he did discover them as soon as it was possible for one in his position to do so, the jury might have inferred that he did discover them when he was 560 feet east of them; and they might have inferred, from the fact that he actually stopped the train within 537 feet of the place he was at when he first saw them, that he did not use the care he should have used, otherwise he would have stopped the train before it reached the place where appellee’s wife was when she was injured. So the jury might have inferred, from the fact that it was the duty of the fireman to keep a lookout ahead, and especially so at that point, because of the bridge around the curve which he could see as the locomotive emerged from the cut, but which the engineer could not see until he got within 560 feet of it, that he did keep such a lookout, notwith-. standing his testimony to the contrary, and that, keeping it, he discovered the perilous position of appellee and his wife in ample time to have had the engineer stop the train before it reached the bridge. Freeman v. Jamison, 138 S. W. 1097; Railway Co. v. Howard, 200 S. W. 1159; Railway Co. v. Finn, 107 S. W. 94; Railway Co. v. Tinon, 117 S. W. 936.

The conclusion reached renders it unnecessary to determine whether the testimony warranted findings that the employes in charge of the locomotive were guilty of negligence in other respects, and if it did demand a finding that appellee’s wife was herself guilty of negligence, for negligence on the part of said employés in the respect indicated by testimony we have referred to warranted a finding that appellant was liable to appellee as determined by the judgment, without reference to whether said employes were guilty of negligence in other respects or not, and even though appellee’s wife may herself have been guilty of negligence.

The assignments not in effect disposed of by what has been said have been considered. It is plain, we think, that neither of them presents error requiring a reversal of the judgment. Therefore it is affirmed.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    ANGELINA COUNTY LUMBER CO. v. MAST.
    (No. 394.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 9, 1919.)
    1. Appeal and Error <§=>742(1) — Assignments op Error — Propositions.
    An assignment of error can be treated as a proposition stating a principio of law only when such assignment, standing alone, announces a statement of a proposed legal principle, so assignments which do not announce a legal principle will be disregarded, when they are treated as propositions.
    2. Appeal and Error <§=>1005(1) — Review-Weight of Evidence.
    The judgment of the court on a verdict of a jury will not be disturbed, unless it is manifestly and plainly wrong and unreasonable.
    3. Railroads <§=>482(1) — Fires — Evidence.
    In action for destruction of grass and growing timber on plaintiff’s land, caused by a fire set out by defendant’s locomotive, evidence held sufficient to support a verdict for plaintiff.
    4. Appeal and Error <§=>742(4) — Assignments of Error — Consideration.
    Where an assignment of error consisted of paragraphs from the motion for new trial complaining that the court erred in not sustaining objections to testimony, the paragraphs constituted no proposition, and the assignments will not be considered.
    5. Appeal and Error <§=>882(13) — Invited Error — Instructions.
    Where the measure of damages submitted by the court was in accordance with a reguest-éd instruction by defendant, defendant cannot complain that the measure of damages was improper, and constituted fundamental error.
    6. Costs <§=>191 — Liability — Codefend-ants.
    Where judgment was in favor of one of the parties joined' as a defendant, though against the other, plaintiff was not entitled as against the unsuccessful defendant to costs for making the successful defendant a party.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Action by B. C. Mast against the Angelina County Lumber Company. From a judgment for plaintiff, defendant appeals.
    Modified and affirmed.
    Mantooth & Collins and K. W. Henman, all of Lufkin, for appellant.
    Blount & Strong, of Nacogdoches, for appel-lee.
   BROOKE, J.

This was an action brought by appellee, B. C. Mast, against appellant, Angelina County Lumber Company, and Angelina & Neches River Railroad Company, defendant below, to recover the sum of $500, on account of the negligence of said companies in setting out fire, which was alleged tb have destroyed and injured the grass and growing timber on a 37½ and an 88 acre tract of land; said alleged negligence being due to the failure of appellant to properly operate and equip its engines and axipliances, so as to prevent the emission of sparks and flames, and so as to prevent the setting out of fire, and also on account of the negligence of appellant in failing to equip the engines with proper spark arresters, and in not using ordinary care in the use of proper fuel, and in not providing proper and competent em-ployés, by reason of which negligence, as aforesaid, the grass and timber of said two tracts of land were greatly injured and practically destroyed, to appellee’s damage as aforesaid.

Appellant, Angelina County Lumber Company, and defendant below, Angelina & Nech-es River Railroad Company, answered by general demurrer, and special exceptions to the effect that the petition of appellee does not show that he was the owner of the claim for damages to said timber and grass, and that there was no consideration for same, even though he purchased said tract of land. Appellant further answered by general denial and special denial that appellee was the owner of said claim, and that said claim was based on a good and sufficient consideration.

The case was submitted to the jury on siiecial issues, which were duly and legally excepted to by this appellant, and siiecial instructions asked, which were refused bjr the court and excepted to by this appellant. The jury answered by their verdict that the engine of tins appellant set out the fire that burned over the land in question, and further that appellee was entitled thereby to $150 by reason of the burning over of the 37½-acre tract, and to $100 by reason of the burning over of the 88-acre tract of land. Appellant duly filed and presented its motion for judgment on the verdict of the jury, which was refused, and the court rendered judgment in favor of appellee and against the appellant, Angelina County Lumber Company, for the sum of $250, and in favor of the defendant below, Angelina & Neches River Railroad Company, that appellee take nothing as against said defendant, and that it go hence without day, and further rendered judgment against appellant for all costs incurred by all parties.

In the first assignment are grouped paragraphs 1, 2, 8, and 10 in the motion for new trial, and they are each adopted as a proposition, to wit:

(a) “Because the verdict and judgment are not supported by the evidence in that the witnesses Franklin’s, Larue’s, and Lucas’ testimony shows a state of facts that makes it impossible for the fire to have originated by the employes of the defendant, having testified that the fire originated so far west of the tram road as to make it definitely certain that defendant company’s employes did not cause the fire; besides, from the time the engine left the shop until it returned was such time as to make it definitely certain that defendant company’s employes did not nor could not have caused the fire, defendant having theretofore requested the court to render judgment for defendant on the verdict of the jury.”
(b) “Because the verdict and judgment are not supported by the evidence in this cause on the question of damage, in that the testimony of plaintiff’s witness Spurgeon, and plaintiff himself, conclusively show that their testimony as to the damages according and accruing to the plaintiff by reason of said burn is entirely contradicted by the physical conditions of the land and timber before and after the fire, as shown by their own testimony corroborated by the testimony of defendant’s witnesses Larue, Eranklin, Lucas, and Wilson; that the 37½-acre and 88-aere tracts of land were covered with large merchantable timber before the fire, and that the ground under the timber was covered by oak, pine, and myrtle brush entirely; that all the merchantable pine timber was cut from said land from one to three months before the fire, and that the fire burned the tops of the cut timber and oak, pine, and myrtle bushes, and that the timber that remained on the land after the Angelina County Lumber Company had cut the merchantable timber was valueless; and because the testimony of the plaintiff himself and witness Spurgeon shows that they were not acquainted with and did hot know the market value of the land before and after the land was burned over.”
(c) “Because the court erred in submitting his charge to the jury, and in not submitting the special charge requested by the defendant to return a verdict for the defendant, the un-contradicted evidence proving conclusively that the defendant company did not set out or cause the fire, for that said company showed and conclusively established that the fire originated too far west from the tram road for defendant company’s engine to have caused the fire; defendant having duly excepted to the court’s charge before the same was read to the jury as shown by the exceptions filed herein.”
(d) “Because the court erred in refusing the defendant’s special charge No. 1, requesting the court to charge the jury to return a verdict for the defendant, because the testimony of plaintiff’s witnesses was wholly insufficient on the question of damages and as to the origin of the fire to authorize or sustain a verdict for the plaintiff.”

We understand it to be the law, with reference to the matter of adopting assignments of error as propositions, that every assignment cannot be treated as a proposition stating a principle of law, but only such assignments can be considered as a proposition as, when standing alone, announce a statement of a proposed legal principle. Having thus disposed of this matter, on which no action is requested in appellee’s brief, no further reference will be made thereto.

The two propositions urged . under this assignment are;

(1) “It is the duty, of the appellate court to set aside a verdict not supported by a preponderance of the evidence, and especially is this true in fire cases, where the evidence is circumstantial, it being the burden of plaintiff in such cases to show by a preponderance of the evidence that the property was injured by the negligent emission of sparks and in the manner as pleaded; and if the evidence is equal the defendant is entitled to a verdict, the burden of proof never shifting in such cases.”
. (2) “A judgment not supported by the pleadings and evidence, or a judgment not supported by the evidence, or the pleadings, cannot stand.”

The weight of evidence, when drawn from the mouths of witnesses, is a matter almost entirely with the jury and trial court, and the judgment of such court on verdict of jury will not be disturbed, unless the same is evidently and plainly wrong and unreasonable beyond conscientious reasoning, and such verdict and judgment will stand if there is in the evidence any reasonable support for same, and the matter of the preponderance of evidence cannot in fact in such ease be considered by the appellate court; otherwise, of course, if the evidence was documentary and not oral.

There seems to be on the main issue, the origin of the fire, an irreconcilable conflict in the testimony of Spurgeon for plaintiff, and Lucas and Franklin and Larue for the defendant. Spurgeon stated point-blank that the fire started at the track of the railroad, and the others, in, effect, that it did not and could not have started there, but must have started at considerable distance .from the railroad track. As said before, the jury are the judges of the weight of the evidence and the credibility of the witnesses, and acting within their province, having the witnesses in their personal presence, perhaps personally knowing them, the testimony of Spurgeon impressed them as true, they so found, and the trial court, with the same facilities for appraising the witnesses, refused to interrupt their verdict. We do not understand that this court in such case has superior means of estimating the credibility of the witnesses ;. and the judgment and verdict are fully sustained by the evidence of Spurgeon as to the liability of the appellant for starting the fire.

As to the same being done negligently, every witness of.defendant and plaintiff who speak of the engine say the fuel was pine knots and pine wood, and sparks and large embers, capable of burning anything dry they might fall on, were emitted constantly when the engine was in operation; and no attempt was made by defendant, whose operating engineer, Larue, was on the stand as a witness, to show any pretense at spark arresters or other safeguard or care against fires by such sparks and cinders. This evidence made it a fact that said engine was negligently operated with reference to properly guarding against fires along its line, and, without going into the matter further, we hold that the testimony was sufficient, if believed by the jury, to support the judgment that was entered. Therefore, in our opinion, this assignment' must be overruled.

Appellant’s second assignment is the grouping of paragraphs 4, 5, and 7 of the motion for new trial, Nos. 4 and 5 being that—

“The court erred in not sustaining appellant’s objection to the questions to and answers of Spurgeon and B. O. Mast as to the market value of the land before and after the fire, as shown by appellant’s hills of exception Nos. 1 and 5.”

These paragraphs constitute no proposition, and make no intelligent assignment, as shown on their face, and we are asked not to consider them. The supposition, however, is that the testimony of these witnesses was inadmissible because it is alleged that they did not qualify as to knowledge of values. We think the matter as stated and presented by this record ought not to be considered. We do not find in the record the bill of exception No. -, referred to in paragraph 7 above mentioned.

Therefore, we pass to the third assignment of error, which appellant presents as fundamental error, or error apparent on the face of the record, which same is adopted as a proposition, as follows:

“Where a case is tried on the wrong or erroneous theory, and the court applies the improper measure of damages, as reflected in the charge and judgment, it is fundamental error, as was done in this case.”

The complaint seems to be that plaintiff pleaded damages on account of injury to and destruction of the grass and timber on the land. The court charged the jury that the damage plaintiff was entitled to recover, if any, was the difference between the market value of the land burned over immediately before it was burned over and immediately after it was burned over. Appellant requested charge No. 3, which reads:

“If special charge No. 1, requested by defendant, is refused, then this defendant requests the following: Gentlemen of the Jury: You will answer the following special issues: What was the market value of the 37½ acres of land before the fire? Answer this by stating the amount in dollars and cents.
“Special Issue No. 2: What was the market value of the 37½ acres of land after the fire? Answer this in dollars and cents.
“Special Issue No. 3: What was the market value of the 88 acres of land before the fire? Answer this in dollars and cents.
“Special Issue No. 4: What was the market value of 88 acres of land after the fire? Answer this in doilars and cents.”

While this requested charge was not' given, yet it is apparent that it was not given by the court for the reason that the court had given the jury the same matter in charge in almost the same language as above set out in its main charge. Because of this invited error, it occurs to us the appellant is estop-ped from complaining before this court.

The last assignment of error set out in the brief of appellant is that all the costs of the suit, including the cost of making the Angelina & Neches River Railroad Company a party defendant, is adjudged against the appellant, when such part of the cost should have been adjudged against the plaintiff, ap-pellee; judgment being in favor of the railroad company.

This contention seems to have merit. The amount of costs, as shown by the cost bill in the record, amounts to $14.10, to which should be added the charge of $10 for the transcript, and one-half of this amount should be allowed appellant as against ap-pellee, and with such judgment, having thoroughly examined the record and the assignments as presented, we are of opinion.that this cause should be affirmed.

It is so ordered.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FARMERS’ UNION CO-OP. CLEARANCE HOUSE OF RUSK v. GUINN.
    (No. 2031.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 16, 1919.)
    1.. Master and Servant <&wkey;6—Employment for a Year-Sufficiency of Evidence. ■
    In action against co-operative store corporation for breach of contract of employment between it and one offered position of manager, but employed actually as subordinate at same salary until incumbent manager should retire, evidence held to justify finding employment was for one year, in view of custom of company to employ manager annually.
    2. Principal and Agent <&wkey;137(l), 147(2)— Duty to Ascertain Extent of Authority —Estoppel of Principal.
    Generally it is duty of one who deals with agent to ascertain extent of his authority, and lack of authority can be pleaded by principal, except when conditions exist which estop him from setting up defense.
    3. Principal and Agent <&wkey;lS9(4)—Action —Pleading Estoppel of Principal.
    To make estoppel of principal from setting up his agent's lack of authority available to the other party, it must be pleaded by such other party in his action against the principal.
    Appeal from Cherokee County Court; C. F. Gibson, Judge.
    Suit by John B. Guinn against the Farmers’ Union Co-operative Clearing House of

      Rusk. From a judgment for plaintiff, defendant appeals.
    Reversed, and cause remanded.
    Norman, Shook & Gibson, of Rusk, for appellant. ■
    Guinn & Guinn,' of Rusk, and Beeman Strong, of Austin, for appellee.
   HODGES, J.

In 1916 and 1917 the appellant, as a trading corporation, was conducting a co-operative store doing a mercantile business at Rusk, in Cherokee county, Tex. Its affairs were under the immediate ■supervision and control of a manager, who was selected annually by the stockholders on the recommendation of the board of directors. In November, 1916, the appellee was offered by the board of directors the position of manager, at a salary of $75 per month, to begin at once. The offer was made and accepted by letters passing between the parties. When the appellee presented himself for work, he was informed that Bridges, the manager in charge of the business at that time, would remain in the service till about the 1st of January, or later, and it was then agreed that the appellee should begin work as a subordinate at $75 a month, and should assume the duties of manager when, Bridges retired. This the appellee did, and continued in that line of service till January 6, 1917, when he was discharged for the reason that the stockholders, at a regular meeting, had decided to retain Bridges. The appellee instituted this suit, and recovered a judgment for $136 as damages for the breach of that contract of employment.

The appellant insists that under this contract there was no definite term of employment agreed upon, and hence the contract might be terminated at will by either party. It is true that it was not expressly stipulated that the appellee should remain in the service one year, or for any definite length of time; but the evidence shows that it was the custom of the corporation to employ a manager annually, and to require of him a bond conditioned for the faithful performance of his duty. The jury had a right to conclude that, with a full knowledge of this custom, the parties had it in mind and contracted with reference to that term of service.

Among other. defenses pleaded, and here relied on, is a provision in the appellant’s by-laws which reserves to the stockholders the power of employing the manager of the store. The authority of the board .of directors extended no further than making recommendations for that position. It is thus made to appear that the board, with whom the appellee contracted, had no power to bind the appellant in a contract of that character. It is true that under the evidence adduced the court or jury might have found that the making of such a contract was within the apparent powers of the board, and that the appellant was estopped to deny its authority. As a general rule it is the duty of, one who deals with an agent to ascertain the extent of the agent’s authority, and the lack of authority can be pleaded, except when conditions exist which estop the principal from setting up that defense. But to inake such estoppel, available it must be pleaded. Rail v. Bank, 3 Tex. Civ. App. 557, 22 S. W. 865; Street v. Robertson, 28 Tex. Civ. App. 222, 66 S. W. 1120. See, also, Franklin ■ Fire Ins. Co. v. Bradford, 88 Am. St. Rep. 786, notes. While in this case the appellee testified that he knew of no' such limitation on the powers of the board of directors, he failed to plead the facts necessary to constitute an, estoppel. Hence we must assume that he relied upon a contract made by the proper authority.

The remaining assignments are overruled. But the judgment will be reversed, and the cause remanded.
      [&»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes