author: TALBOT, J.

text:
    RUDASILL v. RUDASILL et al.
    (No. 8199.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1918.)
    1. Divorce t&wkey;206 — Preliminary Matters — Injunction.
    In suit for divorce and to establish wife’s right to property, denial of temporary injunction with respect to control of property held, not prejudicial, especially as the appeal was from an order made in vacation on a preliminary hearing.
    2. Husband and Wise <&wkey;133(l) — Wipe’s Separate Property.
    In suit for divorce, evidence held insufficient to show that the property which the wife sought to establish as her own was her separate property.
    3. Trusts <&wkey;44(3) — Parol Trust in Land.
    To establish a parol express trust in land, the proof must be dear and satisfactory.
    4. Trusts <&wkey;372 (3) — Enforcement — Stale Demands — Evidence.
    In wife’s suit for divorce claiming certain land as her separate property, evidence held to* support trial court’s finding that husband’s claim of trust was not a stale demand.
    5. Divorce <&wkey;207 — Custody of Property Pending Suit.
    Where wife sued for divorce and to establish land as her separate property, and husband set up express parol trust in him, it was improper, pending outcome of suit, to commit property to husband’s charge, since he was an interested party, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2129, as to receivers, notwithstanding broad powers of court, in suits for divorce, to make equitable orders.
    6. Divorce <&wkey;201 — Equitable Powers of Court.
    Statute conferring on trial court, or judge thereof, in divorce case, power to make such temporary orders respecting property and parties as shall be deemed necessary or equitable, does not confer unlimited power and discretion to make any such order.
    Appeal from District Court, Grayson County; Silas Hare, Judge.
    Suit by Permalla C. Rudasill against Emanuel Rudasill and others. From interlocutory order, complainant appeals.
    Appointment of defendant Emanuel Rudasill to take charge of the property involved set aside, and cause remanded.
    Head, Dillard, Smith, Maxey & Head, of Sherman, for appellant.
    Wood, Jones & Hassell, of Sherman, for ap-pellees.
   TALBOT, J.

Appellant sued appellee, Emanuel Rudasill, who will hereinafter be called appellee, for divorce and an adjustment and settlement of their property rights. Later and before the beginning of the term of the court to which the suit was returnable, three sons of‘appellant and appellee were made parties defendant by an amended petition; but their presence in the suit seems unimportant in determining .the questions raised on this appeal. The petition alleges, in substance, that appellant and appellee were married in Grayson county, Tex., in February, 1871, and that they have lived together in said county ever since that date; that almost from the time of said marriage ap-pellee has acted toward appellant in a harsh and Overbearing manner; that on numerous occasions appellee cursed appellant and abused her in various ways; that during the last few years appellant‘has been in a weak, nervous, and run-down condition of health, and that during said time appellee’s conduct toward her has been so harsh and abusive as to greatly aggravate her condition and render the same much more serious than it otherwise would have been; that appellee’s harsh and abusive treatment has permanently impaired appellant’s health, and if persisted in will continue to impair her health and greatly shorten her life. It is further alleged that, at the time appellant married appellee, she was a widow and had two sons, J. M. and C. A. Tait; that appellee has had a particular aversion to these sons of appellant, and during the .last few years has frequently threatened to kill them, and has forbidden them to visit appellant or to enter upon her premises; that appellee’s throats to do physical violence to her said sons have gradually become more violent, until appellant is in constant dread that they will be put into execution, which dread creates in appellant a serious nervous condition, which has undermined and will continue to undermine her health; that during the last few years, and up to the time of the filing of this suit, appellee has frequently falsely stated to divers persons that appellant’s mind was affected, and that he contemplated having her sent to a lunatic asylum, which charges are without foundation, but have had the effect, in connection with other facts alleged, of greatly aggravating appellant’s condition aforesaid, and rendering her living with ap-pellee unbearable and insupportable; that on account of appellee’s said cruel treatment appellant did in the month of May, 1918, permanently leave appellee, and has ever since remained away from him, and intends to continue to so remain away. The petition further alleges that, at the time appellant and the said appellee were married, appellant was the owner, as her separate property, of 363 acres of land situated in Grayson county, Tex., a part of the Ira S. Hightower survey, and described in deed from J. H. Weaver to her under her then name of Permalla Tait, dated September 27, 1870; that during all of their married life appellant and appellee have made their home upon the said separate property of appellant, and appellee has had exclusive control and management thereof, and has collected and appropriated ail the proceeds arising therefrom. The petition further alleges the ownership by appellant and ap-pellee of certain community property, which need not be described. The record also discloses that appellee is in possession of several thousand dollars wortt} of personal property, some of which is claimed by appellant to be her separate property. Appellant prayed that, pending the suit, she be given the exclusive possession and management of the 363 acres of land alleged to be her separate property, and that appellee be enjoined from entering upon said premises, and from in any manner interfering with such exclusive possession, management, and control by appellant; that she be granted alimony; that the marriage of appellant and appellee be dissolved ; that the alleged separate lands of appellant be set aside to her as her separate property; that she receive the rents and revenues arising from said 363 acres of land during the years 1916-17 and 1917-18, and that she be given one-half of the community property.

Appellant by supplemental petition prayed that if, upon a hearing of her application for injunction, the court should be of opinion that the injunction prayed for should not be granted, then that a receiver be appointed. The court set the case down for special hearing in chambers on the matters asked for by appellant pending the final disposition of the suit, at which time appellee filed his answer, in which he denied each of the allegations in appellant’s petition alleged by her as grounds for a divorce; he admitted that he and the three sons of appellant and appellee, namely, W. S., S. E., and Pearl Rudasill, had cultivated the lands claimed by appellant as her separate property for the years 1916-17 and 1917-18 jointly, all sharing in the proceeds thereof without any fixed share as to each, as they had done since they became of age, with the knowledge, consent, and acquiescence of appellant; he denied that the 363-acre tract of land claimed by appellant as her separate property was in fact her separate property, but that the same was the joint property of himself and appellant in equal and undivided portions by virtue of a contract and agreement between them, made prior to- the date of their marriage and the purchase of the property; that said 363 acres of land claimed by appellant as her separate property constituted the homestead of appellant and appellee, and as head of the family, he was in lawful possession thereof, and was entitled to occupy the same, and to receive the proceeds arising therefrom until appellant was divorced from appellee, and their property rights adjudicated by a final decree of the court; that appellant left appellee and their home without his knowledge, consent, or connivance, and without just cause; that appellant was old and inexperienced in the management of the farm, and incapable of managing the same; that appellee and their two sons, W. S. and S. E. Rudasill, were breaking the land and preparing to put it in wheat for the coming season; that said land had been planted solely to wheat for a long number of years, and it was necessary to continue to prepare said land; otherwise, the land could not be sown in wheat. He prayed that appellant’s' injunction to put her in possession of said premises be denied on preliminary hearing, that her prayer for divorce and partition of the property be denied upon final trial, and that the property be partitioned in accordance with his claims, and for general relief.

The appellees, W. S. and S. E. Rudasill, filed a general denial and special answer, in which they adopted the answer of their father, Emanuel Rudasill, in so far as it applied to them. They alleged possession of said place and cultivation thereof, and enjoyment of the proceeds jointly with their father, Emanuel Rudasill, with the knowledge, consent, and acquiescence of appellant, their mother. They claimed no other right, title, or interest in the land. On September 21st, the court, after hearing the evidence, entered a decree in substance, denying appellant’s prayer for injunction, and ordered that ap-pellee retain possession of the real and personal property involved in this litigation, upon his giving bond in the sum of $5,000, conditioned that he would preserve the property, cultivate the lands, and hold the property and lands subject to the further orders of the court, and also file an inventory and appraisement of all the property in his possession. From this interlocutory order appellant appeals.

The contention of appellant is that the court erred in refusing appellant’s application for an injunction against the appellees, restraining them from entering upon, taking, and holding possession of the land alleged to be her separate property, and from interfering ■ with appellant’s right to manage and control the same, because (1) a wife is entitled to an injunction to prevent interference by her husband with the sole management, control, and disposition of her separate property, given, her by the act of the Legislature of April 4, 1917 (chapter 194 [Vernon’s Ann. Civ. St. Supp. 1918, art. 4621]); (2) in order to justify the court in refusing an injunction to the wife against such interference by the husband, upon the ground that the husband is claiming an interest in the property, it must appear that such claim will probably be sustained, and that the evidence in this case makes it clear that there is no reasonable probability that the appellee can fasten upon the lands alleged to be appellant’s separate property a trust, either express or implied, in his favor; (3) to establish a trust, whether express or implied, by verbal evidence upon the legal title conveyed by deed, it requires proof, both clear and satisfactory, especially after the lapse of a long time, and that such was not the character of proof in this case; (4) it is clear from the evidence that appel-lee’s claim of a trust is a stale demand, and can furnish no basis for denying to appellant the management and control of her separate property, and conferring it upon her husband, Emanuel Rudasill, pending this litigation; (5) if Emanuel Rudasill’s claim of a trust is not a stale demand, it is, in effect, a suit for specific performance, and barred by our ten-year statute of limitations, regardless of any recognition or repudiation of appellant; (6) under the undisputed evidence there is no trust in Emanuel Rudasill’s favor for the money used in refunding to appellant’s sons, J. M. and O. A. Tait, the $2,000 of their money used by appellant in the original purchase of the land; (7) the fact that the homestead of appellant and appellee is upon the separate property of the wife does not give the husband, Emanuel Rudasill, the right to manage and control said property and appropriate the revenues therefrom, and deprive appellant of the management, control, and benefits given her by the act of 1917.

We shall not undertake to discuss in detail the several propositions advanced by appellant, but shall content ourselves with a brief expression of what we conceive to be the rules of law which should govern us, in view of the character of the hearing had at which the order appealed from was made and the evidence adduced.

1. We are of the opinion that, since this appeal was taken from an order made in vacation at a preliminary hearing had for the sole purpose of protecting the interests of the litigants during the pendency of the suit and until a trial of the case could be had upon its merits and final decree entered, we would not be warranted in saying that the court, on the evidence offered, committed reversible error in refusing the injunction prayed for by appellant. The evidence is undisputed that on September 27, 1870, J. H. Wjeaver conveyed to appellant, who was then Permalla Tait, a widow, by deed, with clause of general warranty, the 363 acres of land in controversy, and that appellant and Emanuel Rudasill were married in February, 1871, and shortly thereafter established their homestead upon said land; but upon the question of whether or not, before and at the date of the purchase of said land, it was agreed between appellant and appellee that the property should belong to them jointly, and upon the question of whether or not, in pursuance to such agreement, appellee paid out of his own separate funds a part of the purchase money for said land, the evidence is conflicting. The deed executed and delivered to appellant for the land recites a cash consideration of $3,500 and a note for $1,000, made by Eph Carpenter, who was the father of appellant, and appellant testified that she brought with her from the state of Louisiana to Texas, before her marriage with appellee, $4,500 in gold, $3,500 of which was used in paying the cash consideration recited in said deed, and $200 of which was used in making a payment on the Carpenter note. She further testified that the remainder of $800 due on said note was paid by her father as a gift to her, and that said $4,500 was the proceeds of a crop of cotton made by her deceased husband, James Tait, in Louisiana, and that $2,000 thereof belonged to her two sons, J. M. and C. A. Tait. Appellant further testified that soon after she and appellee were married he demanded of her that she convey the land in question to him, without giving any reason therefor; that this she refused to do, and that she at no time since her marriage with appellee recognized that he had any interest in the land. Appellant also testified that the land in controversy was deeded to her by J. H. Weaver before she and appellee became engaged to be married.

On the other hand, appellee testified, in effect, that he was acquainted with appellant before they moved to Texas; that they became engaged in July or August, 1870, and were married in Grayson county on February 7, 1871; that before they were married he, with appellant’s father, rode over the country a good deal, hunting for a place to purchase, and finally agreed on the land in controversy; that he and his wife’s father, Eph Carpenter, made the trade for the land; that he and his wife talked the matter over before they agreed to purchase the place; that the deed was executed September 27, 1870, and he and his wife were engaged some time before that; that he talked it over with his wife before the place was bought, and the place, when purchased, was to be their home and owned in equal portions; that appellant told him what money she had on hand, and that it belonged to her and her two boys, and that the boys’ money was to be used in buying the land, and paid back to them; that she was unwilling for the place to be purchased without his first agreeing to it. He further said that he and Eph Carpenter closed the trade for the place; that the deed was made in Judge Hare’s office; that Eph Carpenter, appellant’s father, paid over .the money; that he gave him $350 in gold that was his money, which was a part of the money paid for the place; that he and Mr. Carpenter told Judge Hare how the place was being paid for, and that Judge Hare suggested that the deed had better be made to appellant, as they were not then married; that he paid $250 of the $1,000 note that was given by Eph Carpenter as part of the purchase price for the place; that he gave the money to Eph Carpenter; that the first payment marked on the hack of the note is $500, January -25, 1871, which was paid by Mr. Carpenter; that there was also indorsed on said note a credit of $250, paid June 19,1871; that he gave Mr. Carpenter that money to pay on the note; that he did not recall when the final payment was made, but it was paid by Mr. Carpenter; that his wife did not pay any part of that note; that it was paid off by her father and him; that the part that Mr. Carpenter paid was given to him and his wife, as he understood it; that he heard Mr. Carpenter say the note was all paid when he made the last payment; that Mr. Carpenter said he had paid it with the money appellee had given him and his own money. He further testified:

“My wife and I considered that we had used $2,000 belonging to the Tait boys in the purchase of the land. I paid that back to them by buying land for them. The record shows that I bought 320 acres of land for J. M. and C. A. Tait. They ha^e it now. No one had anything to do with the purchase except myself. The total consideration for the land was $4,500, all of which I paid. It was understood that I was accounting to them for the $2,000 that was used in the original purchase of the place, that my wife and I were living on, and $2,500 was made on that place; that is, on the 363 acres (claimed by appellant as her separate property). My final report as guardian of the Tait boys shows their receipt for $6,500. That included the money paid in land and other moneys. I heard my wife’s testimony that I demanded a deed from her to the 363 acres. I never did demand a deed from her at any time. I never thought it was necessary. I always thought I owned as much of the place as she did. I never knew of any reason why I should demand a deed from. her. I have been managing the property all of the time. I made the contract for the place before we were married. I have been managing the place from that time to this, and my rights in it have never been called into question. My wife has never questioned my rights, nor my interest, in the place. In so far as I know, my wife never contemplated a separation from me until this divorce suit was filed. I am. now undertaking to put the place in condition to raise the crops for next year. We have always raised wheat on the place; a little oats, not’ much. Unless the land is gotten ready right after the harvesting is done, you don’t get a good crop of wheat. You can’t make a good crop unless you break the land early.”

On cross-examination appellee testified:

“The $350 that I gave Mr. Carpenter [to pay on the land] I brought with me from Louisiana, where I worked and earned it. I farmed in Louisiana, and had earned some money there, and besides that my wife’s brother and I had carried a bunch of horses back there and made some money on them. My wife is mistaken in saying that her father paid $800 and she paid $200 of the note Eph Carpenter gave in part payment for the land in controversy. Mr. Carpenter first paid $500, and I gave $250' for him to pay; then he paid the balance. ' When I settled as guardian with the Tait boys, I took their receipt for $6,500. I only received in cash for them as their 'guardian the sum of about $2,000. The receipt, as I understood it, represented $4,500, the consideration for the place that I purchased for them, and the $2,000 that I used of their money in purchasing the 363 acres in controversy. In buying this 320 acres for the Tait boys, I was undertaking to buy an equal amount in value as we paid for the 363 acres in controversy, and thought that the latter place belonged to me and my wife. My wife left the place last May, 1918.”

Mrs. Butler Carpenter, the widow of one of appellant’s brothers,- testified that she was living in the family of her father-in-law, Mr. Eph Carpenter, in 1869 or 1870; that she remembered a visit to Mr. Eph Carpenter by Mrs. iRudasill (appellant); that during that visit Mr. Carpenter told his daughter, Mrs. Rudasill, to go on home and behave herself, and use Mr. Rudasill all right; that he was a good man, and ought to have a deed to the 363 acres of land in controversy, and he had paid for it with his own money,, reciting how much, but that she did not remember the amount, but that 'Mr. Carpenter said that appellee ought to have a deed to it, as he had paid for more than half of it; that she could not remember distinctly what Mrs. Rudasill’s reply was, but thought she said something about the deed being in her name. On cross-examination she further testified that the occasion of Mrs. Rudasill being over there at her father’s was that her father sent for her to come up there to try to get matters adjusted pleasantly between her and her husband; that is, the little trouble they had gotten into at that time about some of the property, something about the crops; that the state of her feelings towards Mrs. Rudasill was the best in the world.

William S. Rudasill, one of the appellees, testified as follows:

“I have just heard the testimony of Mrs. Butler Carpenter, with reference to what transpired at my grandfather’s house. I was present at that time; went with my mother. Grandpa told me to go and get her, and bring her up there to see him. I was then about 20 years old. That was in 1889, 1S90, or 1891; I am not sure just what year. The occasion of our going to grandfather’s was, Charlie and Minor [Tait] had been there on the place, and my father wanted them to go on their own place, and my mother said, they ought to stay and control part of it [the home place]. I do not remember what was said between them; cannot go into details. Pa told me to go and see grandpa, and see him about this matter, and maybe he could adjust the differences. I carried my mother up there, and my grandfather said to her, ‘Mal-lie, Will told me about this trouble you all are having down there. Now, Emanuel ought to control that place, and will control it as long as I live. He paid for more of it than you did, and you should have given, him a deed to it long ago, and as long as I live he will control it. Go on home and behave yourself.’ ”

This witness further testified that when his grandfather, Eph. Carpenter, told hi,si mother (the appellant) that appellee had ■paid for most of the place, she replied, that ■ Ihe deed was made to her, and .that the place ought to be hers; that his grandfather then said, “If the deed is made to you, you did not pay all of it; he paid as much or more than you did, and he ought to have some title to it.” He further said he did not remember to have ever heard appellant claim the land as her separate property; that he was born on the place, and has been on it most of the time during his life.

The proposition of appellant that a wife is entitled to an injunction to prevent interference by her husband with the sole, management and control of her separate es-. tate, given her by the act of April 4, 1917, assumes that in the case at bar the property in controversy is unquestionably the separate property of appellant. Such assumption is not, we think, warranted by the evidence. "Whether the 363 acres of land in question is the sole separate property of appellant, or .jointly owned by her and her husband, by virtue of. an agreement entered into before and at the time the deed conveying same to appellant was executed, and whether or not appellee paid a part of the purchase money for the land in pursuance of such agreement, were controverted issues under the evidence. That a deed absolute on its face may have a parol trust, or terms and conditions not expressed therein, ingrafted upon it by verbal testimony, is well-settled law. The difficulty experienced by the court, when such a question is presented, is the determination of the quantum of proof necessary to establish such a trust.

The trust here claimed is not a resulting trust, but an express trust in the land as a result of an agreement between appellant and Emanuel Rudasill to buy the land jointly ; and in order to establish a parol express trust in land the rule requires, it seems, that the proof be clear and satisfactory. There are several cases which deny, under this rule, the sufficiency of the testimony of one interested witness to establish a trust unless supported by corroborating circumstances. Whitfield v. Diffie, 105 S. W. 324; Smalley v. Paine, 62 Tex. Civ. App. 52, 130 S. W. 739; and cases therein cited. In Neyland v. Bendy, 69 Tex. 711, 7 S. W. 486, it was held that evidence that satisfies a jury of the existence of the parol trust is sufficient, and that it is error to charge that such a trust can only be ingrafted on a deed absolute by the clearest and most positive proof. It is not necessary that the trust be established beyond a reasonable doubt. “Such quantum of proof is not required in any case.” Howard v. Zimpelman, 14 S. W. 59. In the case just cited Mr. Justice Gaines, after reviewing our eases upon the question, lays down the rule that—

“It would be proper to instruct the jury as to the legal effect of the conveyance, and that the parties to it are presumed in the first place to have intended that it should have.that effect, but that they should find that a trust was intended, provided • the other evidence be sufficient to overcome that presumption, and to reasonably satisfy them that such was in fact the intention.”

In Baylor v. Hopf, 81 Tex. 637, 17 S. W. 230, it was held that it was not error to charge the jury that a parol trust in land might be proved by preponderance of the evidence. In the view we take of the case it would be improper to discuss the evidence and express any opinion as to its weight, further than is absolutely necessary to a proper disposition of this appeal. We have quoted or stated very fully. the testimony, and it must suffice for us to say that from our analysis and construction of it we would not be authorized to reverse and set aside the order appealed from, especially since this is an appeal from an order made in vacation and upon a preliminary hearing, on the ground that the evidence makes it clear that there is no reasonable probability that Emanuel Budasill can fasten upon the land involved in the suit the trust set up and claimed by him upon a final hearing of the case.

We.are further of the opinion that the evidence does not warrant us in holding on this appeal as a matter of law that Emanuel Rudasill’s claim of a trust is a stale demand; nor would we be warranted in holding that the effect of his allegations is to present a suit for specific performance, and is therefore barred by our statute of limitations of ten years. The fact that the homestead of appellant and appellee is, and has been for a great number of years, upon the 363 acres of land in controversy, has been regarded as immaterial, and not necessary to be considered in determining the questions discussed and passed upon.

2. As has been seen, the order from which this appeal is prosecuted directed that appellee retain possession of the real and personal property involved in this litigation upon his giving bond in the sum of $5,000, conditioned that he would preserve the property, cultivate the lands, and hold the property subject to the further orders of the cou-rt. This action of the court is regarded by the appellant as the appointment of a receiver, and is assigned as error, on the ground, among others, that Rudasill was an interested party to the suit, and, under the statute of this staté, disqualified to act as such receiver. This contention is well taken. The appellant prayed that, in the event the injunction asked- for upon the facts alleged by her was denied, a receiver be appointed to take charge of and manage the property involved in the suit during its pend-ency. Article 2129 of Vernon’s Sayles’ Statutes declares that “no party, * * * or any person interested in any way in an action for the appointment of a receiver, shall be appointed receiver therein,” and while it has been held in this state that an appointment of an improper person, or one disqualified by reason of interest, does not render the appointment void, yet such appointment is contrary to the express provision of the statute referred to and voidable. That the practical effect of the court’s action in authorizing the appellee to retain possession of the land and all the personal property involved in this suit, to be managed and controlled under the direction of the court, was to appoint the said Rudasill a receiver of said properties, Can hardly be denied. It may be true that the power conferred upon a trial court in this state in a divorce case by the statute which declares that, “pending' any suit for a divorce the court, or judge thereof, may make such temporary orders, respecting the property and parties as shall be deemed necessary and equitable,” is a broad one; but we do not think that the trial court or judge thereof is authorized by that statute to ignore the express provision of article 2129, and appoint as a receiver a defendant in the suit who is vitally interested in its determination.

Our construction of the statute conferring upon the trial court, or judge thereof, in a divorce case, the power to make such temporary orders respecting the property and parties as shall be deemed necessary or equitable, is that it empowers such court or judge to make, in a ease calling for it, some one or more of the temporary orders commonly applied for and made in such cases, such as the granting of a temporary injunction, or the appointment of receiver, and does not confer unlimited power or discretion to make any such order independently of the well-known remedies referred to as the court or judge may see fit to make. It is undoubtedly true that the learned judge who made the order complained of in this case believed that it was for the best interest of all the parties concerned, and it may be conceded for the purposes of this opinion that that is true; but, Emanuel Rudasill being disqualified to act as receiver, his appointment is contrary to our statute, and should be set aside.

For the reasons indicated, the appointment of Emanuel Rudasill to take possession of the property involved in this suit, and control and manage it during the pendency thereof, is set aside, and the cause remanded.
      <@==>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    FOREMAN v. STATE.
    (No. 5151.)
    (Court of Criminal Appeals of Texas.
    Oct. 30, 1918.)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge. Melvin Foreman was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction of murder, without a statement of facts and without any bills of exception. There is nothing presented which can be considered in the absence of these. The judgment is affirmed.


text:
    FRAZER v. STATE.
    (No. 5141.)
    (Court of Criminal Appeals of Texas.
    Oct. 23, 1918.)
    Appeal from District Court, Matagorda County; John M. Green, Judge. Gertrude Frazer was convicted of assault to murder, and she appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is a conviction for an assault to murder with the lowest punishment assessed. There is neither a bill of exceptions nor a statement of facts, and nothing raised that can be considered in the absence of these. The judgment is therefore affirmed.


author: MORROW, J.

text:
    HUGHES v. STATE.
    (No. 5192.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge. Clifton Hughes was convicted of robbery, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for •the State.
   MORROW, J.

The conviction is for robbery, with the punishment fixed at confinement in the penitentiary for five years. There is no statement of facts, and no bills of exception pointing out any errors in the proceeding. We have not discovered any fundamental error in the record. The judgment is affirmed.


text:
    HUNT v. STATE.
    (No. 5174.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge. Plez Hunt was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for violating the prohibition law and punishment assessed at the lowest. There is no statement of facts with the record, which was approved by the trial judge. In the absence of a statement of facts, no question is raised which can be considered upon this appeal. The judgment is therefore affirmed.


author: DAVIDSON, P. J.

text:
    KISSINGER v. STATE.
    (No. 5162.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    Appeal from Criminal District Court, Dallas County; ' C. A. Pippen, Judge. Frank Kissinger was convicted of receiving stolen property, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of receiving stolen property and awarded two years in the penitentiary. The record is before us, without a statement of facts or bills of exception, except to the charge of the' court These exceptions, in the absence of the statement of facts, cannot be intelligently revised. So far as the indictment is concerned, and what was legitimately provable under it, the court’s charge may have been without error, and in fact it may have pertinently and correctly applied the law to the case. The judgment will be affirmed.


text:
    LIGGON v. STATE.
    (No. 5209.)
    (Court of Criminal Appeals of Texas.
    Nov. 20. 1918.)
    Appeal from District Court, Smith County; J. R. Warren, Judge. O. T. Liggon was convicted of murder, and appeals.
    Affirmed.
    See, also, 200 S. W. 530.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This record is before us without a statement of facts or bills of exception. The jury allotted appellant imprisonment in the penitentiary for life under a conviction for murder. There is nothing in the record calling for revision at the hands of the court. The judgment will be affirmed.


text:
    MOSHA v. STATE.
    (No. 5182.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.)
    Appeal from Austin County Court; W. I. Hill, Judge. B. Y. Mosha was convicted of theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was based upon the alleged theft of $35 by appellant from Will Josey. The matters presented by special charges requested, but refused, and the motion for new trial, in the absence of a statement of facts, do not present questions requiring elucidation or revision. The judgment will be affirmed.


author: HIGGINS, J.

text:
    COBO v. RODRIGUEZ.
    (No. 872.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 7, 1918.
    Rehearing Denied Dee. 5, 1918.)
    Appeal from El Paso County Court at Law; W. P. Brady, Judge. Action by E. S. Rodriguez, as administrator, against Jose Cobo. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    M. W. Stanton, of El Paso, for appellant.
    W. H. Pelphrey, of El Paso, for appellee.
   HIGGINS, J.

Cobo appeals from an adverse judgment in a forcible detainer suit prosecuted by appellee. The entire transcript and statement of facts have been carefully examined, and appellant’s brief considered. The record evidences a clear case of forcible detainer. The errors assigned are technical, and without substantial merit. In our opinion, no reversible error is presented, and the judgment is affirmed.


author: RICE, J.

text:
    LOW v. YETT.
    (No. 5956.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 16, 1918.)
    Appeal from Burnet County Court; J. R. Smith, Judge. Suit by Theodor Low against J. R. Yett. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    Hart & Patterson, of Austin, for appellant.
    Faulk & Monroe, of Austin, for appellee.
   RICE, J.

The nature and result of the suit is substantially stated in appellant’s brief, and we copy therefrom as follows: “This suit was wrought in the county court of Burnet county by appellant, Theodor Low, against appellee, .T. R. Yett, upon a promissory note given by Yett to W. D. Villines on August 17, 1916, for the sum of $200, duo six months after date, hearing 10 per cent, interest from maturity, and providing for 10 per cent, attorney’s fees. Plaintiff alleged that he purchased said note in due course of trade before maturity for a valuable consideration, and ashed judgment for the amount of the note and 10 per cent, attorney’s foe. Defendant answered by general demurrer and denial, and pleaded that the note was given by him to W. D. Villines for 9 shares of the capital stock of the Travis Oil Company; that defendant was caused to purchase said stock and give the note therefor by reason of ‘certain fraudulent and untruthful representations made by the said Villines’; that said stock was worthless prior to and at the time the note was given, and subsequent thereto; that Villines knew that said stock had no real intrinsic value; that plaintiff was a stockholder in said oil company, and knew the value of said stock; that plaintiff, did not obtain the note in due course of trade, for value, before maturity, and without notice. Plaintiff answered defendant’s answer by supplemental petition, in which he specially excepted and pleaded that he purchased the note in due course of'trade before maturity for a valuable consideration, and without notice.” The case was tried before the court and judgment rendered for defendant, from which plaintiff prosecutes this appeal. The court adopted as its findings of fact the statement of facts filed and agreed to by the attorneys for both parties, and approved by the court, and concluded therefrom as a matter of law that the plaintiff did not pay a valuable consideration for the note, and that the stock for which he gave the note was without intrinsic value. This judgment is assailed on the ground that the undisputed facts in evidence show that plaintiff gave a valuable consideration for the note, and that he did not have notice of any fact or circumstance, or of any equity or agreement between Yett and Villines, affecting the validity of the note sued on. This assignment is sustained by the uncontradicted evidence, for which reason the judgment of the court below is reversed, and here rendered for appellant. Reversed and rendered.


author: SADLER, J. PHILLIPS, C. J.

text:
    CLAY v. MARMAR.
    (No. 17-2608.)
    (Commission of Appeals of Texas, Section B.
    Dec. 21, 1918.)
    Appeal and Ebeob <§=>64 — Jurisdiction-Court of Civil Appeals.
    '" On appeal from the judgment in an action to recover property of the value of $250 or its value, the judgment of the Court of Civil Appeals is final, and the Supreme Court cannot review the same on error.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by IC Mamar against Mrs. T. J. Clay. Prom a judgment for plaintiff, defendant appealed, and, judgment being affirmed by the Court of Civil Appeals (156 S. W. 1125), defendant brings error.
    Writ dismissed.
    Price & Beaird, of Tyler, for plaintiff in error.
    Lasseter & McElwaine, of Tyler, and U. A. Gentry, of Hope, for defendant in error.
   SADLER, J.

This was a suit in county court by Mnrmar to recover property of the value of $250, or its value.

The judgment of the Court of Civil Appeals is final. 156 S. W. 1125. The Supreme Court is without jurisdiction. Cole v. State, 106 Tex. 472, 170 S. W. 1036.

The wi'it should be dismissed.

PHILLIPS, C. J.

The recommendation of the Commission is adopted. The case is dismissed for want of jurisdiction.


author: TAYLOR, j. PHILLIPS, C. J.

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. WOODALL.
    (No. 16-2607.)
    (Commission of Appeals of Texas, Section A.
    Dec. 21, 1918.)
    1. Cabeiebs <§=>280(1) — Duty oe Carrier— Degree oe Caee.
    Instruction that carrier is required to exercise the “highest degree of care possible” for safety of passengers demands too much.
    2. Caebiees <§=>303(11) — Injuey to Passen-geb Alighting — Liability—Conductor’s Invitation.
    Whether carrier was under contractual obligation to allow passenger to alight where he did is immaterial, as regards liability for injury; he being rightfully on the train, and alighting at conductor’s invitation.
    3. Cabeiebs <§=>333 (3) — Passengeb Alighting — Conductob’s Invitation — Assumption AS TO AUTHORITY.
    A passenger who, because train did not regularly stop at his station, had ticket for station beyond, could rightfully assume conductor was not exceeding his authority in inviting him to alight, on train being required, on account of freight train, to stop a few yards short of his station.
    4.Cabeiebs <§=>333(3) — Passengeb Alighting — Conductoe’s Invitation — Assumption as to Safety.
    A passenger invited to alight when train at night was required to stop a short distance from station could rightfully assume conductor was not inviting him to alight at an unsafe place.
    Error to Court of Civil Appeals of Pifth Supreme Judicial District.
    Action by John R. Woodall against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (159 S. W. 1012), and defendant brings error, plaintiff making cross-assignments.
    Reversed and remanded.
    E. B. Perkins, of Dallas, and Daniel Upthe-grove, of St. Louis, Mo., for plaintiff in error.
    Allen & Allen, of Dallas, for defendant in error.
   TAYLOR, j.

The main question presented for determination is: Did the Court of Civil Appeals err in hdlding that the following paragraph of the court’s charge correctly defines the care required by the defendant in error in the transportation of its passengers:

“Fourth. On the claim of plaintiff for damages for personal injuries, you are instructed that railway companies as carriers of passengers are required to exercise the highest degree of care possible for the safety of their passengers, both while they are being carried on its trains and while alighting therefrom, and a failure to exercise such care is negligence. They are not, however, to be regarded as insurers of the safety of their passengers.”

The facts to which the foregoing charge is applied are, briefly, that the plaintiff purchased from the Houston & Texas Central Railroad Company at Dallas a through ticket over that line and plaintiff in error’s line from Dallas to Brownsboro, via Corsicana. Plaintiff went to Corsicana over the H. & T. C. line, and then took passage for Browns-boro on the defendant in error’s limited train. Soon after boarding said train, he was advised by the conductor that it did not stop at Brownsboro, and thereupon paid his fare to Chandler, a place beyond Brownsboro, where the train was scheduled to stop. Wlhen the train reached Brownsboro, a freight train was standing partly on the main track and partly on a siding, too short to hold the entire train, which made it necessary for the passenger train on which the plaintiff was riding to stop about 200 or 300 yards from the station and “saw by” the freight train. When the stop was made during the night at Brownsboro, the plaintiff, having been told by the conductor that the train was at Brownsboro and that he would let him off, alighted from the train. It being further to the ground than plaintiff thought, he lost his balance after striking the ground and fell in a pile of railroad iron and cross-ties, injuring himself. 159 S. W. 1012.

The Supreme Court held in the case of I. & G. N. Ry. Co. v. Welch, 86 Tex. 203, 24 S. W. 390, 40 Am. St. Rep. 829, that it is erroneous to • charge the jury that a carrier must use “all possible care” for the safety of its passengers, and reannounced as the correct rule of liability the following:

“Railroad companies, however, arc not insurers of the safety of their passengers further than couldi he required by the exercise of such a high degree of foresight as to possible dangers, and such a high degree of prudence in guarding against them, as would be used by very cautious, prudent, and competent persons under similar circumstanccs.” Railway v. Halloren, 53 Tex. 53, 37 Am. Rep. 744.

The charge complained of in this case is subject to the same objection as the one disapproved in the Welch Case, and has a broader and more unlimited meaning with respect to the degree of care required than is consistent with the foregoing rule. The discrepancy is such as to constitute reversible error.

Whether the railway company was under contractual obligation to allow the plaintiff to alight from the train where he did becomes immaterial, in view of the fact that he was lawfully on the defendant’s train and alighted at the invitation of the conductor. The plaintiff, in view of all the circumstances, had a right to assume that the conductor was not exceeding his authority and was not inviting him to alight at an unsafe place.

“Where carriers transact their business through agents, either general or local, it is equally competent for such agents to bind them by such contracts as the public have a right to suppose they are authorized to make, from the manner in which they are employed, or are seemingly intrusted by their principals.” Hutchison, Carriers, § 460.

The plaintiff asserts by cross-assignment of error that the court erred in refusing to give his second special requested charge to the effect that, if the jury found for the plaintiff, they , should include as an element of his damages his loss of time and lessened capacity to labor. On another trial of the case, under a similar state of facts, a charge submitting this issue should be given. H. B. & T. Ry. Co. v. Johansen, 107 Tex. 336, 179 S. W. 853.

We are of opinion that the judgments of the trial court and the Court of Civil Appeals should be reversed, and the cause remanded.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals in the above case is adopted, and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed.
      <&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: STRONG, J. PHILLIPS, C. J.

text:
    HARTFIELD v. GREBER et al.
    (No. 22-2641.)
    (Commission of Appeals of Texas, Section A.
    Dec. 21, 1918.)
    1. Mortgages <§=»427(1) — Foreclosure — Debtor as Party.
    In suit to foreclose mortgage at common law, it is unnecessary to make debtor a party where he has parted with his interest in property, unless personal judgment against him is sought; plaintiff may proceed against purchaser of properly alone, establish his debt, and subject property to payment.
    2. Mechanics’ Liens <®=^263(1) — Suit to Foreclose — Original Contractor as Necessary Party.
    Original contractor, payee of notes and beneficiary of mechanic’s and builder’s lien, who subsequently purchased property, as part consideration assuming payment of notes, was not necessary party to proceedings to foreclose lien in sense that failure to make him party rendered foreclosure void.
    3. Mechanics’ Liens ⅞=>264(1) — Suit to Foreclose — Right to Make Original Contractor Party — Waiver.
    Purchaser of property subject to mechanics’ lien, in suit by indorsee of notes upon them and to enforce lien, had right on timely application to make party original contractor, who subsequently purchased property from original owner, who gave notes and lien, but waived right by proceeding to trial without making application.
    • Error to Court of Civil Appeals of Eighth Supreme Judicial District.
    Action by J. A. Greber against E. S. Clark, A. P. Hartfield, and others. From judgment for plaintiff, defendant Hartfield appealed to the Court of Civil Appeals, which affirmed (160 S. W. 603), and he brings error.
    Affirmed on recommendation of the Commis sion of Appeals. -
    Lane, Wolters & Storey, Stanley Thompson, and Wm. A. Vinson, all of Houston, for plaintiff in error.
    Jones & Jones, of Houston, for defendants in error.
   STRONG, J.

Defendant in error, Greber, sued E. S. Clark and wife on two notes executed by them and to foreclose a mechanic’s lien on certain lots in Houston Heights, Harris county. Plaintiff in error was made a party defendant as a subsequent purchaser of the property.

The record discloses that Clark and wife contracted with E. E. Pye to build a house on the lots, and as a part of the consideration executed the two notes sued on, and at the same time executed a mechanic’s and builder’s lien on the lots and improvements to be made, to secure the payment of the notes. Pye sold and indorsed the notes before maturity to Greber. Thereafter Pye purchased the property from Clark and wife, and as a part of the consideration assumed the payments of the notes. Pye later sold the property to plaintiff in error, Hartfield. Hartfield, however, did not assume payment of the notes.

Clark and wife, in their answer, alleged that, when they sold the property to Pye, Greber released them from further liability on the notes. Hartfield answered by general denial and specially that the improvements were not made in substantial compliance with the contract, and that Greber had full knowledge of this fact when he purchased the notes. Pye was not made a party to the suit.

In answer to special issues submitted, the jury found that Greber had released Clark and wife from liability on the notes, and further found that Pye substantially complied with his contract in the construction of the building so as to fix a lien on the homestead. The trial court rendered judgment in favor of Greber for the amount due on the notes against Clark and wife, directing that no execution issue against them, foreclosed the lien against all defendants, and ordered the sale of the property in satisfaction of the judgment. The judgment of the trial court was affirmed by the Court of Civil Appeals. 160 S. W. 603.

It is contended by plaintiff in error that the court was without authority to render judgment foreclosing the lien, because there was no party to the suit against whom judgment for the debt could be decreed; in other words, that Pye was a necessary party to the suit.

It is not contended, nor does the record disclose, that Pye was a necessary party by reason of being the original contractor in the contract for the improvements. The rule announced in Railway v. Rucker, 59 Tex. 587, therefore has no application.

It is a well-settled rule of the common law that, in a suit to foreclose a mortgage, it is not necessary to make the debtor a party to the suit, where he has parted with his interest in the property, unless a personal judgment is sought against him. The plaintiff in such suit may proceed against the purchaser of the property' alone, establish his debt, and subject the property to the payment thereof. Jones on Mortgages (5th Ed.) vol. 2. § 1404 ; 9 Enc. Plead. & Prac. 332; Storey, Eq. Plead. § 197; Buchannan v. Monroe, 22 Tex. 537; Jones v. Smith, 55 Tex. 383; Puckett v. Reed, 3 Tex. Civ. App. 350, 22 S. W. 515. This rule has been applied in this state in tax suits. Slaughter v. City of Dallas (Civ. App.) 103 S. W. 218; League v. State (Civ. App.) 56 S. W. 262. In other jurisdictions the rule is held to apply in a proceeding to enforce a mechanic’s lien. Rose v. Persse, 29 Conn. 256; McCormick v. Lawton, 3 Neb. 449; Kellenberger v. Boyer, 37 Ind. 188; Harrington v. Miller, 4 Wash. 796, 808, 31 Pac. 325.

In our opinion, Pye was not a necessary party to the foreclosure proceedings, in the sense that the failure to make him a party renders the judgment of foreclosure void. Plaintiff had the right to sue Hartfield as a subsequent purchaser of the property upon which he held a lien, establish his debt and enforce his lien against the property, without making Pye, his debtor, a party to the proceedings. Jones on Liens (3d Ed.) vol. 2, § 1578; Phillips on Mechanics’ Liens, § 396. In such proceeding Hartfield could urge any defense to defeat the lien that Pye could have urged had he been a party to the suit. Plaintiff in error had the right, upon timely application, to make Pye a party to the suit, but he waived this right by proceeding to trial without making such application. Railway v. Peek, 102 S. W. 776. The effect of the court’s judgment was to establish plaintiff’s debt and subject the property to the lien. In this we think there was no error.

We think the other assignments were properly disposed of by the Court of Civil Appeals.

We are of opinion that the judgments of the Court of Civil Appeals and trial court should be affirmed.

PHILLIPS, C. J.

The judgment by the Commission of Appeals in the above case is adopted and will be entered as the judgment of the Supreme Court.
      <S=s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: TAYLOR, J. PHILLIPS, C. J.

text:
    SOUTHERN KANSAS RY. CO. et al. v. SHINN.
    (No. 2654.)
    (Commission of Appeals of Texas, Section A.
    Dec. 21, 1918.)
    1. Master and Servant <@=>255(30) — Railroads — Operation op Signal Board — Duty to Look Out.
    Railroad employs operating signal board by means of lever in projecting bay window of station was not as a matter of law required to look to see if track was clear before giving signal that operator bad no orders for engineer.
    2. Master and Servant <@=>286(30) — Injury to Brakeman — Duty op Signal Board Operator — Jury Question.
    In brakeman’s action for injuries from sagging telephone wires while on top of box car, evidence held insufficient to justify submission to jury of question whether operator of signal board who had given engineer signal to proceed had duty of looking to see if track was clear before giving signal.
    Error to Court of Civil Appeals, Seventh Supreme Judicial District.
    Action by J. B. Shinn against the Southern Kansas Railway Company and others. Judgment for plaintiff affirmed by Court of Civil Appeals (153 S. W. 636), and defendants bring error.
    Reversed, and judgment rendered for defendants.
    Terry, Cavin & Mills, of Galveston, Adkins & Sewell and E. C. Gray, all of Higgins, and H. E. Hoover, of Canadian, for plaintiffs in error.
    Gustavus & Jackson, of Amarillo, and W. ⅞1. Whitmire, of Dallas, for defendant in error.
   TAYLOR, J.

The plaintiff, J. E. Shinn, sued the defendant railway companies for damages sustained from being raked off of a box car by an overhanging telephone wire while passing through the town of Higgins on one of the defendants’ freight trains. At the time of his injury, he was employed by the defendants in the capacity of brakeman, and had gone upon the top of the car in the discharge of his duties.

The telephone wires were the property of the Canadian Long-Distance Telephone Company, strung across the right of way of the defendants subsequent to the time of the construction of the railway, and were in no wise under the care, control, or management of the defendants. A house mover by the name of Bennifield, while engaged in moving a barn about two hours before the approach of the train on which the plaintiff was injured, cut and loosened some of the telephone wires about 200 feet south of the defendants’ right of way, thereby causing the sagging condition referred to. The Court of Civil Appeals found that the sagging condition of the wires resulted from the independent act of the house mover. The court found also that the evidence was insufficient to charge the defendants with actual notice of the sagging condition of the wires, and that the length of time intervening between the accident and the loosening of the wires by Benni-field were insufficient to raise the question of implied notice. 153 S. W. 636.

Under the state of the record before us, all of the issues raised by the pleadings are eliminated except the question of whether the operator who signaled the train to pass the station without stopping was guilty of negligence in not looking out of the depot window oh the right of way to see whether it was clear before giving the proceed signal. In discussing this issue the Court of Civil Appeals said:

“When this particular train had reached the yards of appellant, about one-half mile from the station, going east, the engineer whistled for signals, and it was the duty of the station agent, or some one under him, to manipulate a lever inside the station, situated in a bay window projecting over the platform, the operation of which drops or raises a signal board, indicating whether to stop or proceed, as the occasion demands, and in this instance the ‘proceed’ signal was given by the dropping of one of the arms or board, and the engineer answered, with appropriate whistles, to let the trainmen know that a ‘proceed’ signal was given, and went on through on the main track; and, when the train was going through, the appellee was upon the top of a box car, as it was his duty in going by stations. The main track, on which this train was running, was immediately next to the station; and near the bay window, and inside of same, the lever was situated, giving the operator of the lever, at the time of its manipulation and before the train arrived at the station, a sweep of vision east and west upon the main track and up and down the right of way, so that the man operating the lever could see the bunch of wires about 300 feet away and east of the station. In this record the station agent, and the witness for defendant, testified as follows: ‘The lever that operates the board is on that desk that sits in the bay window. When an incoming train whistles for the. board, [if] the man that is sitting there operating the board does his duty, he would look and see if there is a clear right of way, I suppose, but I do not' know as it is incumbent to do that. The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him. The literal meaning in the book is, when we drop the board, that is a clear trade,.’ [The emphasis is ours.] While it may bo the agent hesitates in his testimony, and exhibits an apparent contradiction in his statements, the same may be resolved against the appellant, and is sufficient to go to the jury on the question of the duty of the operator of the lever to look in each direction for ‘a clear right of way.’ ”

If it was incumbent on the operator of the lever to look in each direction for a clear right of way when the engineer whistles for signals, regardless of whether there was any special occurrence at that time to cause him tó do so, his failure to discharge that duty was negligence, and the defendants would be chargeable with any injury resulting proximately therefrom. The character of the employment of the operator not being such as to warrant holding as a matter of law that it was his duty to look out before giving the signal, we are called upon to determine whether there is any evidence tending to prove that such duty devolved upon him. The testimony material to the determination of this question follows:

Excerpts from Plaintiff’s Testimony.

“I do not remember how long I had been on top of this car when we got into Higgins. As we approached every station we get orders; we are supposed to be governed by the board, and as the engineer whistles for signals the agent 'handles the board. I forget the correct name of this board, but it is a board that has a couple of arms projecting up above the track, one on the right side and one on the left in order to handle the trains coming in there, and when the engineer whistles for signals, the agent handles this board by a lever from the inside, and we got a proceed signal, and we went right through. By proceed signal, the best I can remember, I believe the right arm went down in order to show a clear right of way. We were at the end of the yard when the engineer whistled for the signal, and that is about one-half mile, I believe. When the board dropped for him, the engineer answered by whistles to let the trainmen know that he got a proceed signal and he went on. * * * The depot there has kind of a bay window. That picture fully represents it; yes, sir; and there is a bay window or projecting window out this way (indicating) which is to enable the man in there can watch the trains from both ways.”

C. S. Cravens testified on direct examination as follows:

“I reside at Higgins, and resided there in October of 1910, and acted in the capacity of first trick [track] operator for the railroad. I should judge that the accident to the plaintiff occurred about 11 o’clock. I remember the time and was 'there that day, and was handling the board at that time. I gave a signal for the train to pass there, because the engineer asked for it by giving four blasts of the whistle, and I answered by giving him the board, to go on through. I meant by that that I had no orders for him. At that time I did not know, had no advice and had no reason to know, that there were any wires or overhead obstruction there. I knew nothing about the wires; no, sir; and had no reason to believe or think they were in a dangerous condition. I did not know that this house was being moved, and did not know that the telephone wires were being tampered with or had been tampered with.”

On cross-examination he testified:

“When he whistled I gave him the clear board, and just gave him the board because I had no orders for him.
“Q. You did not look for any obstructions! A. That was not my business.
“Q. You were busy when he whistled, and you just gave him the board? A. I gave him the board. .1 don’t know how busy I was.
“Q. You cannot say now that you looked to see whether or not he had a clear right of way, you based it on the instructions? A. The instructions you had were if he whistled, and you had no orders you just gave him the board.”

The following excerpts are taken from the testimony of the station agent, W. H. Brewer.

“The operator had charge of giving them the board. The operator was Cravens, and he is here as a witness. * * * I think there were three men in the station at that time, possibly four. I did not give the signal board when the whistle blew; it was another man that gave it. I did not know what the condition was as to the right of way. I did not look to see this. It is something like 300 feet down there to where these wires are. The window that we set in in receiving and answering signals from approaching trains is a bay window projecting out so we can look down the track either way; and it had glass windows in so that we can look down the track. The lever that operates this board is on that desk that sits in the bay window. When an incoming train whistles for the board, the man that is sitting there operating the board does his duty. He would look and see if there is a clear right of way, I suppose, but I don’t know as it is incumbent to do that. The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him. The literal meaning in.the book is that when we drop the board that it is a clear track. You see we haven’t time to run out every time a train whistles. We are busy, and when a man whistles for the board we haven’t time to run and look up and down the track; we have to tend to our duties, which keep us at our desk all of the time. We give him the board when he whistles for it if we have no orders for him. He is supposed to see the main track himself, and if he sees any obstruction on the track and don’t stop he is responsible for it. He is out on the main line and can see more territory than we can. I do not know as a man on a train going 30' or 40 miles an hour would be charged with wires down at the depot when he whistles for the board; he could not see them. I don’t think he could see them until he got pretty close. He could see the bulk of the wires I am pretty sure. How could you expect us to see the obstruction unless we could see it from the office. There was no obstruction between our office and those wires down there that I know of. There is no track where cars can stand that would obstruct our view of those wires from the office. * * * There is nothing in the rules about our going out and looking up and down the track when we give a signal for a train to proceed nor to look up in the sky to see whether or not there is anything hanging from the sky. The right of way is located on the ground, and the railroad owns the right of way.”

Was any part of the foregoing testimony in the light of the whole sufficient to go to the jury on the question of whether the operator was charged with the duty of inspecting the right of way from his seat near the window before giving the proceed signal in response to the engineer’s whistle? The following excerpt from the station agent’s testimony is held by the Court of Civil Appeals to be sufficient:

“The lever that operates the board is on the desk that sits in the bay window. When an incoming train whistles for the board, [if] the man that is sitting there operating the board does his duty, he would look to see if there is a clear right of way, I suppose, but I do 'not know as it is incumbent to do that. The engineer does not whistle to know if there is a clear track; he whistles to know if we have orders for him. The literal meaning in the book is, when we drop the board, that is a clear track.”

It is plain from the station agent’s statement quoted that it was not the duty of the operator to look out for the track. “The engineer does not whistle to.know if there is a clear track; he whistles to know if we have orders for him.” There is no testimony in the record contradicting this statement. In addition, the operator testified that he gave the engineer the “clear board” when he whistled “because I have no orders for him.” The station agent testified, “The literal meaning in the book is, when we drop the board,, that it is a clear track.” There is no other conclusion to be drawn from the references of the station agent and the operator to ¾ “clear board” and a “clear track” than that both expressions meant there were no orders for the engineer.

That portion of the testimony quoted by the Court of Civil Appeals bearing directly on the operator’s duty is as follows:

“When an incoming train whistles for the board, [if] the man that is sitting there operating the board does his duty, he would look and see if there is a clear right of way, I suppose, but I do not know as it is incumbent to do that.”

The only fact specifically stated by the witness having any relation to the operator's duty to look out is, “I do not know as it is incumbent to do that.” It is true that the station agent says “he would look and see if there is a clear right of way I suppose” if the operator does his duty, but this supposition of the witness, even in the absence of his unequivocal statement that he did not know whether it was incumbent on the operator to look, does not carry with it that degree of probative force necessary to form the basis of a legal inference. At most, the supposition, alone, would do no more than raise a mere surmise as to what the duty of the operator was on such occasions. This testimony, even if we eliminate from it the positive statement referred to, and disregard the apparent contradiction mentioned by the Court of Civil Appeals, falls short in legal contemplation of “any evidence” to support the conclusion that it was the duty of the operator before answering the engineer’s signal to look out on the right of way. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059.

We are of opinion that the Court of Civil Appeals erred in holding the testimony of the station agent sufficient to go to the jury on the question of the operator’s duty.

As the facts seem to have been fully developed on the trial, we recommend that the cause be reversed,. and judgment rendered for the defendants.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals in the above case is adopted and will be entered as the judgment of the Supreme Court.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes