text:
    ROBSON v. MOORE et al.
    (No. 5270.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 22, 1914.
    On Motion for Rehearing, May 20, 1914.)
    1. Appeal and Error (§ 622) — Filing Transcript — Time.
    The 90 days from the time of giving notice of appeal, within which the transcript must be filed, should be computed from the giving of the notice of appeal recited in the order overruling a motion for new trial, instead of from the notice recited in the judgment theretofore entered.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2732-2735; Dec. Dig. § 622.]
    2. Appeal and Eeeoe (§ 564) — Statement op Facts — Time op Filing.
    A statement of facts, which was filed in the trial court September 10, 1913, and in the Court of Civil Appeals on September 17, 1913, was filed too late, and will not be considered, where judgment was rendered May 24, 1913, and the order overruling the motion for new trial was made on May 30, 1913.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.]
    3. Teespass to Try Title (§ 19) — Defenses —Equitable Title.
    An equitable title can be sued upon or set up as a defense in an action of trespass to try title.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 22; Dec. Dig. § 19.]
    4. Trusts (§ 44)— Evidence.
    Evidence held not to sufficiently show that land conveyed was taken under a parol trust.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.]
    5. Trusts (§ 44) — Constructive Trust.
    Where the trustee is dead, a parol trust should not be ingrafted on a deed to land without clear and satisfactory evidence thereof, and such evidence is not satisfactory where the party suing to establish a trust withholds the best on the question.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dee. Dig. § 44.]
    On Motion for Rehearing.
    6. Appeal and Eeeor (§ 345) — Notice op Appeal.
    A notice of appeal given in the term in connection with the order overruling a motion for new trial, after notice of appeal had been given when judgment was rendered, was valid; the trial court having control of the judgment during the term.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 345.]
    7. Appeal and Eeeoe (§ 937) — Presumption.
    Where a transcript was filed during vacation, it cannot be presumed that the clerk filed it by order of the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3788-3794; Dec. Dig. § 937.]
    8. Appeal and Eeeoe (§ 628) — Filing or Transcript — Delay—'Waiver.
    Where appellee received notice of the filing of the transcript pursuant to Court of Civil Appeals rule 7b (142 S. W. xi), and did not move-to dismiss the appeal because the transcript was filed too late until more' than seven months thereafter, he waived the delay in filing the-transcript, and cannot excuse his own delay on the ground that he called attention to the time of filing the transcript as soon as he could after appellant’s brief had been filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. § 628.]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Action by Ducy Robson, executrix, against T. W. Moore and another. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    C. E. Lane, of Austin, and C. D. Krause- and L. D. Brown, both of La Grange, for appellant. Dyer Moore and John T. Duncan, both of La Grange, for appellees.

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

   MOURSUND, J.

Mrs. Lucy Robson, as executrix of the last will of W. S. Robson, sued Dr. T. Warren Moore and H. B. Kaulbach, alleging that the estate of W. S. Robson is-the owner of one-eighth of three certain tracts of land in Fayette county, and that defendant Moore owns the other seven-eighth», thereof, but that defendant Kaulbach has a mortgage upon Moore’s interest therein; that plaintiff and Moore both claim title from a common source, to wit, T. C. Moore and his wife, Martha Moore, both deceased, who were the parents of defendant Moore; that W. S. Robson acquired title to his said interest at sheriff’s sale under an execution issued upon a judgment in favor of H. B. Kaulbach against T. Warren Moore, at which sale W. S. Robson, J. T. Duncan, and H. B. Kaul-bach purchased; and that Duncan and Kaul-bach conveyed their interests to T. Warren Moore. Plaintiff prayed that the interest claimed by her in said lands be established, and that partition be bad.

Defendants answered by a general denial, a special denial that W. S. Robson ever owned any interest in the lands described in plaintiff’s petition, and alleged at considerable length the transactions leading up to the execution sale under which plaintiff claims —the substance of said .allegations being that the judgment under which said sale was made was owned by Kaulbach, John T. Duncan, and L. W. Moore, Duncan and Moore having, as partners, acquired by assignment from Kaulbach a one-half interest in the claim upon which the judgment was rendered; that neither of said parties ever transferred or promised to transfer to Robson any interest in said judgment; that Robson superintended the sale under the execution and bid in the land, crediting the bid upon said judgment and paying no money; that the deed should have been to Kaulbach, Duncan, and Moore, because Robson owned no interest in the judgment, and used Moore’s interest therein to pay for the interest in the land conveyed to Robson, without authority from Moore; that by reason of the facts mentioned Robson took the title as trustee for L. W. Moore; that thereafter Kaulbach, Duncan, and Moore sold the land to defendant Moore, who gave Kaulbach a deed of trust thereon. Defendants prayed that they go hence without day and recover their costs.

Plaintiffs filed a trial amendment, containing a general demurrer to the answer and a general denial thereof. Judgment was rendered that plaintiff take nothing by her suit. Upon request of plaintiff, the court filed findings of fact and conclusions of law.

Appellee suggests that we may not have jurisdiction to entertain the appeal. The judgment was dated May 24, 1913. The order overruling the motion for new trial is dated Blay 30, 1913. Both the judgment and order recite notice of appeal. The transcript was filed August 26, 1913. If the 90 days is to be computed from the giving of the first notice of appeal, the transcript was not filed within such time; if from the notice given upon the overruling of the motion for new trial, the filing was within the 90 days. We are of the opinion that the time should be computed from the giving of the second notice of appeal. But it further appears that this transcript was filed in the Court of Civil Appeals for the First District on August 26, 1913, and as that court- had discretion to permit it to be filed after 90 days, it will be presumed that the clerk of said court acted in accordance with his duty in filing the same, and did so under authority from the court. It also appears that the suggestion by appellees comes too late; that appellees by their long delay have waived their right to ask for a dismissal. City of Eagle Lake v. Lakeside Sugar Refining Co., 144 S. W. 709. However, the statement of facts, being filed September 10, 1913, in the trial court, and in this court on September 17, 1913, will not be considered by us.

The first question raised by appellant is whether defendants could prevent plaintiff from recovering a judgment upon the deed to W. S. Robson, in the absence of a decree granting a correction of such deed, so as to make it read that one-fourth was conveyed to L. W. Moore, instead of to Robson. The theory of appellant is that a suit would have to be brought to correct the deed, but this contention cannot be sustained. No mistake was made in the deed. It was drawn just as Robson and the sheriff intended it;- but if the facts alleged are true, then L. W. Moore had the superior equitable title to the land, and Robson held the legal title in trust for said Moore. It is well established in this state that an equitable title can be sued upon or urged as a defense in an action of trespass to try title. Neill v. Keese, 5 Tex. 29, 51 Am. Dec. 746; Stafford v. Stafford, 96 Tex. 112, 70 S. W. 75; Burdett v. Haley, 51 Tex. 540; Wright v. Thompson, 14 Tex. 561; Hix v. Armstrong, 101 Tex. 275, 106 S. W. 317; McKamey v. Thorp, 61 Tex. 648; Burns v. Ross, 71 Tex. 516, 9 S. W. 468; Pearce v. Dyess, 45 Tex. Civ. App. 406, 101 S. W. 550; Hill v. Moore, 62 Tex. 612. In the ease of Stafford v. Stafford, supra, it was held that a suit could be brought to recover land by the beneficiary of a trust upon his equitable title without a previous suit to declare the existence of the trust. The cases of Railway v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39, and Gilmore v. Oneil, 139 S. W. 1162, cited by appellant, are not in point. Those cases, in determining questions of limitation, merely distinguish actions to correct or cancel a deed from actions to recover land.

It is further contended by various assignments of error that the judgment is not supported by the evidence. The court found that the execution deed described in plaintiff’s petition was in fact made, and thereby Robson acquired the legal title to one-fourth of the half interest in the land thereby conveyed, but that plaintiff could not recover upon such. title, because the judgment under which the sale was made was- owned, one-half by Kaul-bach and one-half by Moore & Duncan, a firm composed of L. W. Moore and John T. Duncan, and that the bid made by Robson evidenced by said deed was paid by crediting the amount thereof upon the judgment, and that neither Kaulbach, Moore, nor Duncan ever conveyed to Robson any interest in the judgment, and that Robson paid no cost's; that W. S. Robson and John T. Duncan formed a partnership for the practice of law at the time the firm of Moore & Duncan was dissolved, but that the evidence fails to show that Robson & Duncan succeeded to the assets or business of Moore & Duncan. From these findings the court concluded as a matter of law that L. W. Moore’s interest in the judgment entirely paid for the interest conveyed to Robson, wherefore a resulting trust was created, and, as defendant lield under U. W. Moore, plaintiff could not recover.

The court infers that Robson’s interest must have been purchased with Moore’s part of the- Judgment, doubtless because of the fact that Duncan had one-fourth conveyed to him; but as Duncan was looting- after this matter for Moore & Duncan, and wrote the sheriff’s return on the execution, as well as the sheriff’s deed, and at the time he and Robson had dissolved partnership, it occurs to us that a more reasonable theory to deduce from the facts is that Duncan, as the partner who looked after the business of the dissolved firm of Moore & Duncan, agreed to give Robson one-fourth of the judgment for certain services in the matter of collecting the same, and that Duncan, in taking the title to the other one-fourth in his name, took same in trust for Moore & Duncan. All the facts indicate an agreement on the part of Duncan to convey Robson one-fourth, and, as Duncan had a one-fourth interest in the judgment, it seems that Robson should hold one-fourth, which should be charged to Duncan, or to the firm of Moore & Duncan, if the facts warrant it. The deed could have just as easily been made to L. W. Moore as it could to Robson, if the part of the judgment used in paying for the interest conveyed to Robson in fact belonged to D. W. Moore, and when that sale was superintended by Duncan, who knew all the facts and who wrote the instrument and had it executed, it will be presumed to speak the truth, in the absence of a full and satisfactory showing to the contrary. While the court concludes that Duncan made no transfer to Robson, that conclusion is in direct conflict with the facts found by the court upon which it is based, and, being unable to reconcile the two, we deem it proper to discard the conclusion and adhere to the facts.

The evidence is far from being clear and certain to the effect that L. W. Moore’s interest in the judgment entirely paid for the interest conveyed to Robson, and we think that it is not sufficient to ingraft a trust by parol upon a deed. There is probably but one witness who could, by his testimony, throw light upon the transaction between Duncan and Robson, and he failed to testify. Robson and Moore are dead. Kaulbach knew nothing of the partnership arrangements of Moore, Duncan, and Robson. The only survivor of the two law firms did not disclose those arrangements. A trust should not be ingrafted on a deed to land, where the trustee is dead, without clear and satisfactory evidence, and evidence should not be satisfactory to any court when the best and most direct evidence of the existence or nonexistence is withheld by the party seeking to establish the trust. The case should be thoroughly investigated, and all known testimony tending to throw light upon the subject produced, scrutinized, and given such weight as it may deserve. It was not incumbent on appellant to place the witness in question on the stand, for she might well have considered him adverse to her. Appellees should be compelled to fully disclose all testimony bearing on the trust. Justice to the memory of the dead, to the interests of the living, demands a full, fair, and exhaustive investigation.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

There is no merit in appellees’ contention that the second notice of appeal is void. The trial court had control of its judgment during the term, and having entertained a motion for new trial after the first notice of appeal was given, and entered an order overruling same, the notice of appeal then given was valid. Sass & Cohen v. Hirschfield, 23 Tex. Civ. App. 1, 56 S. W. 602.

As the transcript was filed during vacation, the presumption cannot be indulged that the clerk filed it by order of the court; but appellee cannot excuse his laches by saying that he called attention to the time of filing transcript as soon as he could after appellant’s briefs were filed. He does not deny that he received notice as provided by rule 7b (142 S. W. xi) of the filing of the transcript, yet for more than seven months he failed to file any motion to dismiss. We therefore conclude that, if we should be in error in computing the time from the second notice of appeal, then appellee waived the late filing of the transcript.

We adhere to our decision upon the merits of the case, and overrule the motion for rehearing.


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    BARNARD & MORAN v. WILLIAMS.
    (No. 606.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1914.
    Rehearing Denied May 16, 1914.)
    1. Venue (§ 17) — Privilege to be Sued in County of Residence — Waiver.
    A defendant who invokes the jurisdiction of the trial court by a cross-action thereby waives his plea of privilege to be sued in the county and precinct of his residence.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 28-31; Dec. Dig. § 17.]
    2. Justices of the Peace (§ 174) — Appeal-Amendments to Pleadings.
    A plaintiff suing in justice’s court may on appeal to the county court amend his petition so as to conform to the evidence at the trial.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.]
    3. Justices of the Peace (§ 174) — Actions —Pleadings.
    A petition, in an action in justice’s court, which states a cause of action on a written contract and in addition thereto a cause of action based on a subsequent oral contract, is not subject to exceptions in the county court on appeal.
    [Ed. Note. — For other .eases, see Justices of the Peace, Gent. Dig. §§ 665-693; Dee. Dig. § 174.]
    4. Evidence (§ 445) — Paeol Evidence — Admissibility.
    Where an action -was founded on a written contract and on a subsequent oral contract, proof of the oral contract not contradicting the written contract was admissible.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.]
    5. Appeal and Ekboe (§ 1050) — Haemless Eeeoe — Eeboneous Admission op Evidence.
    Where, in an action for pasturing cattle, defendant reconvened for the conversion of cattle, and it was shown without objection that two of the cattle had died and that others had escaped through the fault of third persons, the error, if any, in admitting evidence of the custom of the country that parties taking cattle for pasturage were not responsible for the loss thereof, was not prejudicial, since plaintiff was only required to exercise ordinary care.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by J. E. Williams against Barnard & Moran. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    E. C. Gray, of Higgins, for appellants. Charles C. Cook,, of Pampa, for appellee.

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

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

   HALL, J.

.This is an appeal from the county court of Gray county. The suit was filed by appellee in the justice court, upon a written contract, whereby the defendants agreed to pay plaintiff $2.80 per head for keeping and pasturing certain cattle for them from November 1, 1912, to April 20, 1913. The contract also provided that if the cattle were delivered to.plaintiff before November 1, 1912, defendants were to pay him $3 per head; that 680 head of cattle were received by plaintiff on October 10, 1912. Plaintiff alleges that at the time of entering into the contract it was mutually understood that the cattle were not to be placed in plaintiff’s pasture until October 25th, and that on October 10, 1912, when said cattle were placed in there, the defendants agreed to pay plaintiff the reasonable value of the pasturage from October 10th to October 25th. From a judgment for plaintiff in the sum of $100, with interest from date, this appeal is prosecuted.

The first assignment of error is that the court erred in overruling defendants’ plea of privilege to be sued in the county and precinct of their residence. The record shows that this plea was filed in the justice court after motion to quash the citation had been sustained. In C. & M. Ry. Co. v. Morris & Crawford, 68 Tex. 49, 3 S. W. 457, the Supreme Court held that under R. S. of Texas 1879, art. 1243, providing that if the citation or service is quashed upon motion of the defendant he shall be deemed to have entered his appearance to the succeeding term of the court, that the defendant had the option in such case to move to set aside" the service or to appeal from any judgment rendered, and that it is not an unconstitutional act on the part of the Legislature to declare his appearance to quash the service shall be deemed a good appearance on the merits for the next term. M., K. & T. Ry. v. Scoggin, 57 Tex. Civ. App. 349, 123 S. W. 229. In any event, the appellants waived their plea of privilege and invoked the jurisdiction of the trial court by their cross-action for conversion. Ramsey v. Cook, 151 S. W. 346.

Defendants filed a motion to strike out of plaintiff’s first amended original answer' the allegation as to the ambiguity of the written contract, because such allegation did not appear in the justice court. This is certainly not a new cause of action set up in the county court. The grounds of plaintiff’s action in both courts are identical. It is said in Wooley v. Corley, 57 Tex. Civ. App. 229, 121 S. W. 1139, that a plaintiff in an action in the justice court could amend his petition on appeal to the county court so as to conform it to the details of the evidence developed at the trial without violating the rule against pleading a new cause of action by amendment. The amended pleading in the county court did nothing more than this and did not constitute a new cause of action. Fowler v. Michael, 81 S. W. 321. Plaintiff’s action was upon a written contract and in addition thereto upon a subsequent oral contract. Proof of the oral contract in no way tended to vary or contradict the terms of the written contract, and the petition was not subject to exception, nor did the court err in admitting parol evidence to sustain the allegation.

Appellant’s third, fourth, sixth, seventh, and eighth assignments, raising this question, are overruled. Strauss v. Gross, 2 Tex. Civ. App. 432, 21 S. W. 305; Southern Kansas Ry. Co. v. Burgess, 90 S. W. 189; Heatherly v. Record, 12 Tex. 49.

The fifth assignment is that the court erred in overruling the defendant’s objection to the introduction of evidence showing the custom of the country, because the same was insufficiently alleged by plaintiff. The proposition announced by appellant is sound, but upon the whole record we think the error of the 'court was harmless. The defendants reconvened for the conversion of four head of cattle, and the evidence utterly failed to sustain the plea of conversion. It was shown, without objection, that two of the cattle had died; that the other two escaped through the fault of third parties. This testimony, not being objected to and being in explanation I of the apparent default on the part of appellant, in our opinion renders harmless the testimony admitted and objected to, to the effect that, according to the custom of the country, parties taking cattle for pasturage were not responsible for the loss thereof.

The ninth assignment raises practically the same question and is also overruled.

The tenth assignment of error has been disposed of by what we have said in disposing of the third assignment.

The twelfth assignment complains of the finding of the court to the effect that the plaintiff was required to use only ordinary care and, having used such care, was not liable for the loss of the cattle, because there were no allegations in plaintiff’s pleadings to the effect that plaintiff had used such care. The evidence upon this point was admitted without objection and is not .even challenged in this court.

Finding no reversible error in the record, the judgment is affirmed.

Appellant’s motions to strike out appel-lee’s brief and transcript are overruled.


author: FLY, C. J.

text:
    W. D. CLEVELAND & SONS v. HOUSTON SPORTING GOODS STORE.
    (No. 5266.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 22, 1914.
    Rehearing Denied May 20, 1914.)
    Principal and Agent (§ 137) — Powers op Agent — Estoppel to Dent Authority.
    Plaintiff was not estopped to deny that its agent, a traveling salesman, had authority to allow defendants a discount on goods sold to them when defendant knew nothing of the agent’s authority and did not attempt to ascertain anything about it and was in no way misled by any act of plaintiff.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 492-494; Dec. Dig. § 137.]
    Appeal from Washington County Court; W. R. Ewing, Judge.
    Action by W. D. Cleveland & Sons against the Houston Sporting Goods Store. From a judgment for plaintiff less an amount of $178.66 claimed by defendant, plaintiff appeals.
    Reversed and rendered.
    Mathis, Teague & Embrey, of Brenham, and Hunt, Myer & Teagle, of Houston, for appellant. L. M. Williamson, of Houston, for appellee.

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

   FLY, C. J.

Appellant sued F. W. Martin, doing business as the Houston Sporting Goods Store, to recover the sum of $411.61, alleged to be due on an account for certain ammunition sold to appellee by appellants. Appellee sought to avoid payment of a portion of the account by a plea that the agent who sold the goods to appellee agreed to allow a discount of 2y2 per cent, on all purchases made of appellants, that he had" bought $7,146.45 worth of goods, and that on that sum appellee was entitled to a discount of $178.66. The cause was tried by the court, and judgment was rendered in favor of appellants for the amount sued for, less the sum of $178.66 claimed by appellee.

The evidence showed that appellee bought the goods from appellants, and that the sales were made through Ed Moch, an agent of appellants. Gardiner, his wife, and another witness swore that Bloch agreed to allow ap-pellee a discount on all ammunition sold by appellants to appellee. Moch denied that he did so and testified that he had no authority to allow such a discount on ammunition. That he had no such authority was testified 'to also by A. S. Cleveland, who stated that Bloch had authority to arrange for discounts on all goods except ammunition and a few other articles, the price for those being fixed by'the manufacturers and could not be sold at a discount by appellants. Appellee, nor Gardiner, had no knowledge of any authority being given Moch to grant discounts on any goods.

The uncontroverted evidence showed that Moch had no authority to promise a discount on the amount for which the ammunition was sold, and appellee had no knowledge of facts connected with the authority of Moch that would lead him to believe that Bloch had such authority. The act being unauthorized, appellants would not be bound by his promise, because there was no act of appellants proved that induced appellee to believe that Moch had any such authority, and it is not pretended that appellants ratified the contract made by Moch. Appellee never at any time claimed the discount, although he made numerous payments on ammunition bought at different times during a year’s time, until payment of the balance was sought to be enforced. The doctrine of apparent authority to act as an agent is founded on the law of estoppel, but in every ease in order to create estoppel the authority to act must be based upon facts. No man can profit by es-toppel unless he has been led to act by reason of the conduct or words of another. The circumstances, known to the third person, must be such as to clothe the agent with apparent authority. The doctrine in relation to agency by estoppel does not apply unless the person dealing with the pretended agent and invoking the doctrine relied upon and was misled by his apparent authority, or, in other words, unless he was misled by the representation or conduct of the alleged principal. He must have been actually misled and induced to act to his prejudice by reason of the principal’s conduct; he having on his part exercised due diligence to ascertain the truth. Clark & Skyles, Agency, p. 149.

The evidence fails to show that appellee or his agents knew of the course of conduct of appellants towards their agent, or that any inquiry whatever was made as to the agent’s authority. Appellee could not have been misled as to the authority of the agent because he knew nothing about it, and did not attempt to ascertain anything about his authority. If Moch had authority to allow discounts on goods sold by him for his principals, appellee did not know it. Appellants had never acted in any manner so as to lead appellee to believe that Moch was authorized to contract for discounts on ammunition. He had never had any dealings before with appellants or their agent and had no reason to infer that the agent had the authority claimed by him. Appellee relied altogether upon the representations of Moch, and he made no effort to ascertain the scope of his authority. Appellants were not estopped to deny the authority of Moch. McGoldrick v. Willits, 52 N. Y. 612. Appellee neither pleaded nor proved facts raising an estoppel.

The judgment is reversed, and judgment here rendered that appellants recover of ap-pellee the sum of $411.61 with 6 per cent, interest thereon from January 1, 1913, and all costs in this behalf expended.


author: McMEANS, J.

text:
    ROSS et al. v. BLUNT et al.
    (No. 6601.)
    (Court of Civil Appeals of Texas. Galveston.
    April 6, 1914.
    Rehearing Denied May 7, 1914.)
    1. Appeal and Error (§ 724) — Assignments op Error — Sufficiency.
    Assignments of error that the verdict of the jury is unsupported by the evidence, that it is contrary to law, and that the court erred in instructing a verdict in favor of defendants, are too general for consideration.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    2. Specific Pebfoemance (§ 35) — Right to —Conteacts
    Where the husband of the owner of the legal title of land contracted for its sale, the purchaser is not entitled to specific performance unless he shows that the owner’s husband was acting as her agent, or that she knew he was so acting and ratified the contract.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 102-106; Dec. Dig. § 35.]
    3. Specific Performance (§ 121) — Actions— Evidence.
    _ In a suit for specific performance of a contract for the sale of land, made between plaintiff’s guardian and the husband of the owner of the legal title, evidence held insufficient to show that the wife was a party to the contract, or that she assented to or ratified her husband’s act.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. § 121.]
    4.Specific Performance (§ 97) — Right to —Tender.
    Purchasers are not entitled to specific performance of a contract for the sale of land, unless they have tendered performance.
    [Ed. Note. — For other eases, see Specific Performance, Cent. Dig. §§ 286-298; Dec. Dig. § 97.]
    Appeal from District Court, San Jacinto County; L, B. Hightower, Judge.
    Action by Turner Ross and others against R. E. Blunt and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    William McMurrey, of Cold Springs, and A. T. McKinney, of Huntsville, for appellants. G. I. Turnley, of Houston, and Campbell & Campbell, of Livingston, for appel-lees.

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

   McMEANS, J.

This is an action of trespass to try title, brought by Turner Ross and Lucy McMurrey, joined by her husband, R. J. McMurrey, against R. E. Blunt and his wife, S. A. Blunt, to recover a tract of 126 acres of land described in their petition. Mrs. Blunt having died pending the trial, her heirs, John. Harrell, Sr., Peyton Harrell, Charles Harrell, Wash Harris, and Will Harris, were made parties defendant. The plaintiffs, in addition to the ordinary allegations in actions of trespass to try title, further alleged in their petition that in July, 1892, one A. W. Harrell was appointed guardian of the estates of the said Ross and Lucy McMurrey, the said plaintiffs then being minors, by the probate court of San Jacinto county, Tex., and that he qualified as such; that said plaintiffs were the owners of an estate consisting of real and personal property in the state of Virginia; that it was decided that it would be to the advantage of said plaintiffs to sell said property in Virginia and invest the proceeds of such sale in real estate in Texas; that in pursuance of this plan one G. D. Gray was appointed guardian of said plaintiffs by the chancery court of Culpepper county, Va., in 1897, and the said property of said plaintiffs was, by the order of said court, sold and the proceeds remitted to the said A. W. Harrell, the Texas guardian of said plaintiffs. Plaintiffs further averred that in February, 1898, the said R. E. Blunt, acting for himself and as the agent of the said Mrs. S. A. Blunt, entered into a contract in writing with the said A. W. Harrell, as guardian of said plaintiffs, for the sale of the tract of land described in their petition to the paid Harrell, for the use and benefit of said plaintiffs, in consideration of the sum of $820. Five hundred dollars was to be paid in cash upon the execution and delivery to the said Harrell by the said Blunt and wife of a deed of conveyance of said land for the use and benefit of said plaintiffs, the balance to be paid in one and two years, in payments of $160 each, for which the said Harrell was to execute his promissory notes, to hear interest from date at the rate of 8 per cent, per annum, in which a lien for the unpaid purchase money was to be retained; that the said Harrell was to take possession of said land, but that the rents for the year 1898 were to go to the said Blunt and wife, which said contract has been lost. Plaintiffs further averred that in pursuance of said contract the said Blunt and wife delivered possession of said tract to the said Harrell, for the use and benefit of said plaintiffs, who remained in its possession until his death in 1903, during which period the said Harrell erected permanent and valuable improvements thereon of the value of $1,500, for which purpose he expended that amount of the funds of said plain-' tiffs. Plaintiffs further averred that in compliance with the terms of said contract Harrell paid to the said Blunt and wife, of the funds of said plaintiffs, the following sums: February 19, 1898, $150; April 28, 1898, $200; January 2, 1899, $150; January 2, 1900, $30; April 28, 1903, $50 — in which payments the said Mrs. S. A. Blunt acquiesced, and received the same for her own use; and in April, ■ 1903, the said Turner Ross and Lucy MeMur-rey, having attained their legal majority, ratified the acts and doings in that behalf by their guardian, A. W. Harrell, and the said Harrell and the plaintiffs entered into an agreement in writing between themselves and the said Blunt and wife whereby they agreed to complete said sale, and whereby they became liable to pay to the said Blunt and wife the balance then due on said contract, the consideration thereof being that the said Blunt and wife should make to the said Harrell, for the use and benefit of the said Ross and Lucy McMurrey, a deed to said premises; that in April, 1903, the said Blunt and wife executed a deed conveying said premises to the said Harrell for the use and benefit of the said Ross and Lucy McMurrey, duly acknowledged by said grantors, and deposited the same with one O. E. Turnley, to be delivered to the said Harrell upon his compliance with the terms of said contract and agreement. Plaintiffs further averred that in September, 1903, the said Harrell departed this life; that plaintiffs sought a completion of said contract, and tendered to the said Blunt and wife the balance of the purchase money due on said contract; that the said Blunt and wife, with intent to deceive these plaintiffs, represented to them that, inasmuch as the said Harrell was dead, it was proper for them to make a deed directly to the said Ross and Lucy McMurrey, and persuaded these plaintiffs to permit the said Blunt to withdraw the said deed from the possession of the said Turnley, with the promise that the grantors therein would execute a deed conveying said premises directly to the said Ross and Lucy McMurrey, to which proposition the said plaintiffs agreed; that when the said Blunt and wife obtained possession of said deed from the said Turnley they forcibly took possession of said tract of land, and ejected plaintiffs, and refused to execute said deed according to their promise, and still refuse so to do, and have converted to their own use the rents on said land since January 1, 1904, of the value of $400 per an-num. They prayed that if it should be held by the court that plaintiffs are not entitled to recover by reason of their action of trespass to try title, then for judgment for the specific performance of said contract, for the rents and profits so converted as aforesaid, for costs of suit, and general relief, and tendered into court whatever balance should be found to be due on said contract with interest thereon. Defendants answered by general denial and a plea of not guilty, and by special pleas of the statutes of limitations of two, three, four, five, and ten years.

The case was tried before a jury, and after the introduction of evidence had been concluded the court, upon motion of defendants, instructed the jury to return a verdict in their favor, which was done, and thereupon judgment was accordingly entered in favor of the defendants and against the plaintiffs for the land in controversy, from which judgment the plaintiffs have appealed, and seek to have the judgment reversed upon the following three assignments of error; (1) “The verdict of the jury is unsupported by the evidence adduced on the trial and is contrary thereto.” (2) “The verdict of the jury is contrary to law.” (3) “The court erred in instructing a verdict in favor of defendants.” Under decisions too numerous to cite, these assignments are too general to require our consideration; but, even if they were considered they are without merit, for the reasons hereinafter stated.

It was admitted on the trial that there was a perfect chain of title to the land in controversy from the sovereignty of the soil to Mrs. S. A. Blunt. It was also admitted that Mrs. Mollie L. Harrell (then Ross) was 'the guardian of the persons and estates of plaintiffs, Turner Ross and Mrs. Lucy McMurrey. Afterwards Mrs. Ross married A. W. Harrell, and the latter was then appointed guardian pro forma with his wife. The plaintiffs Turner Ross and Mrs. Lucy Mc-Murrey were the owners of an estate in Culpepper county, Va., consisting principally of two tracts of land in said county, and their guardian, Mrs. M. L. Ross, in 1885, made application to the circuit court of said county for the sale of the lands belonging to her wards and minor children, for the purpose of investing the proceeds of such sales in Texas lands. An order was made by the court as prayed for, and one G. D. Gray was appointed commissioner to make such sales and as guardian of said plaintiffs in the state of Virginia, and the smaller of said tracts was sold for $150, which sale was confirmed by the court. Mrs. M. L. Ross having intermarried with A. W. Harrell, he became a party to said proceeding, and as guardian for said minors, on December 28, 1896, made a contract with one J. P. Mahoney for the sale of the larger tract for $3,000, payable in six annual payments of $500 each, beginning November 1, 1897, with interest from date of said contract, which sale was confirmed by the court. Harrell having made application to the circuit court for an order directing that the proceeds of said sales be paid over to him as guardian of said plaintiffs, as well as all money in the hands of said Gray, an order was made by the court as prayed for, and the said Gray filed his report, showing remittances to Harrell of sums of money aggregating $1,325, which report was approved by the court. On February 15, 1898, the defendant R. E. Blunt, without being joined by his wife, Mrs. S. A. Blunt, in whom was the legal title, made a contract with A. W. Harrell, the guardian, in behalf of his wards, for the sale of the land in controversy for the sum of $820; $500 to be paid in cash, and the balance to be evidenced by notes and secured by a vendor’s lien on the land, with interest from the date of sale. The record does not disclose whether this contract was oral or in writing; but this is immaterial, in the view we take of the case. Afterwards Harrell at various dates from February 19, 1898, to January 3, 1903, paid R. E. Blunt various sums of money, aggregating $530. Harrell at the time of the contract went into possession of the land, and remained in possession until his death in 1903. There was much additional testimony adduced tending to prove the execution of the contract of sale by R. E. Blunt to the plaintiffs.

We think plaintiffs failed to make out their case, because they wholly failed to show that the contract made by R. E. Blunt was joined in by his wife, Mrs. S. A. Blunt, the owner of the legal title, or that in making said contract R. E. Blunt was acting for her or at her instance, or that she knew he was so acting. We will not discuss here the question of whether Mrs. Blunt, a married woman, could have been bound by her executory contract of sale, had it been shown she had made such; for in the absence of any proof that she had made or authorized the making of such a contract, such question does not arise. But the sole contention of appellant arises upon the making of the contract by the husband, who had no title, and his subsequent acts in relation thereto; it not being shown that he was acting in behalf of his wife as her agent, or at her instance, in any manner to bind her. The contract, if it was in writing, was not introduced in evidence or its absence accounted for, or its contents proved. While appellants’ contention is that Harrell in contracting to purchase the land was buying it for his wards, the appellants, the evidence fails to show that he used the money belonging to them in making the payments to R. E. Blunt, and failed to show that he had used their funds in making improvements on the land, if any were made.

It appears from a letter written by R. E. Blunt to plaintiff R. J. McMurrey, December 7, 1903, that the contract of sale made by him with Harrell was for the benefit of the latter’s wards, the plaintiffs. It also appears, from a letter written by said Blunt, on October 9, 1903, to plaintiff Lucy McMurrey, that a deed to the tract sold to said Harrell was in the possession of Judge Geo. I. Turn-ley, Blunt’s attorney, which t he had held since the previous April with instructions to deliver the same to said Harrell upon the compliance by the latter with the contract of sale. This letter continues as follows: “Since the death of our brother [meaning A. W. Harrell] I think it necessary to make a new deed to you and your brother, and have written Mr. Turnley to comply with your request. You can confer with Mr. Turnley, and get him to make out all necessary papers and forward to me for our signatures, and the same will have my prompt attention.” .On November 21, 1903, said Blunt wrote to Mrs. Mollie E. Harrell as follows: “Inasmuch as we still hold the land I sold him [A. W. Harrell], we will not, for the present, at least, sign deed sent us by Lucy and Turner [the plaintiffs], and will claim the amount of money he paid on the place as rent for the five years he held it. * * * I have instructed Mr. Turnley to take possession of our place on January 1, 1904 (or earlier, if necessary), and act as my agent in disposing of it."

There is nothing in the letters to prove, and the testimony does not otherwise raise the issue, that Mrs. S. A. Blunt was a party to the contract of sale, or that she had signed the deed left by her husband with Mr. Turnley, or even that she authorized, assented to, or acquiesced in the acts of her husband in relation thereto. And even if the testimony had so shown, there was no evidence that the guardian, Harrell, or the plaintiffs, at any time tendered performance of the contract of sale, or in any other manner placed themselves in a position to demand specific performance. Appellants, having failed to prove the execution of a contract of sale to them through their guardian by Mrs. Blunt, the owner of the title, or any fact that would bind her to make the conveyance, were not entitled to a judgment, and the court, in the circumstances, correctly instructed a verdict against them. The judgment of the court below is affirmed.

Affirmed.


author: PLEASANTS, C. J.

text:
    PERKINS v. PERKINS.
    (No. 6550.)
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1914.
    Rehearing Denied April 30, 1914.)
    1. Adverse Possession (§ 62) — Hostile Possession — Homestead Right.
    Where the widow had a right of homestead, her possession was not adverse to the brother and only heir of decedent, who had no right of possession and could not have recovered possession, and her claim of ownership of the whole of the property did not affect her right to its use and occupancy as a homestead; and hence the brother was not required to sue within ten years after knowledge of defendant’s claim to prevent it from ripening into a title.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 324r-327, 329-332; Dec. Dig. § 62.]

      2. BastaRds (§ 104) —Property —Inheritance.
    Under the express provisions of Rev. St. 1911,- art. 2473, children of the same mother inherit from each other without regard to whether their parents were legally married.
    [Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 251, 257-262; Dec. Dig. § 104.]
    3. Partition (§ 46) — Parties—Interest.
    In partition by the brother and only heir of deceased against his widow claiming a right of homestead, parties having no interest in the property should not have been made parties to the suit.
    [Ed. Note. — For other eases, see Partition, Cent. Dig. § 114; Dec. Dig. § 46.]
    4. Partition (§ 85) — Issues—Improvements.
    Where plaintiff in partition had no right to recover possession of his one-half interest and hence no right to partition, the issue of defendant’s improvements in good faith could not be determined in a suit.
    [Ed. Note. — For other 'Cases, see Partition, Cent..Dig. §§ 236-245; Dec. Dig. § 85.]
    5. Judgment (§ 712) — Parties Concluded— Persons Not Parties.
    Even if the probate court had jurisdiction of the question of title to land and such title had been put in issue by pleadings thereunder, its judgment that the fee-simple title therein vested in deceased’s widow would not be binding on a surviving brother and heir who was not a party to that suit.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1233; Dec. Dig. § 712.]
    6. Partition (§ 74) — Form of Judgment— ■ Exception of Homestead Right.
    Though plaintiff in partition failed to establish the defendant’s abandonment of her homestead right, and hence was not entitled to partition, it was proper for the court to determine the issue of defendant’s asserted title to all the property, so that a judgment decreeing title to each of the parties, but denying plaintiff’s right to partition so long as de-' fendant might occupy it as a homestead, was proper.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. § 209; Dec. Dig. § 74.]
    7. Homestead (§ 145) — Abandonment—Offer to Sell.
    A widow’s offer to sell the property was not an abandonment of her homestead rights ! therein.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 268, 277, 280, 285; Dec. Dig. § 145.]
    8. Homestead (§ 145) — Abandonment—Removal.
    The fact that a widow was not living on the property was not an abandonment of her homestead rights, where she had not acquired another home.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 268, 277, 280, 285; Dec. Dig. § 145.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Partition by Alexander Perkins against Laura R. Perkins. Judgment for plaintiff, subject to defendant’s homestead, and defendant appeals.
    Affirmed.
    James'B. & Charles J. Stubbs, of Galveston, for appellant. Stewarts, J. E. Quaid, and Edward F. Harris, all of Galveston, and Harris & Harris,, of Houston, for appellee.

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

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

   PLEASANTS, C. J.

This is a suit for partition of lot No. 10 in the southwest block of outlot No. 113 in the city of Galveston, brought by the appellee against the appellant. The petition alleges that plaintiff is the owner of an undivided one-half of said lot and that the defendant owns the remaining one-half. The prayer of the petition is for judgment establishing plaintiff’s title and for partition of the lot, or its sale and partition of the proceeds of such sale, equally between plaintiff and defendant. In addition to a general denial and plea of not guilty, defendant pleaded limitation of three, five, and ten years, and improvements in good faith made. She also pleaded that the lot had been set aside to her in fee simple by a decree of the district court of Galveston county on December 13,1902, in a suit in said court which had been appealed thereto from the county court of said county, and she claimed title by virtue of said decree and by limitation. Plaintiff filed a supplemental petition, the substance of which we copy from appellee’s brief, as follows: “That the property was the separate estate of Albert Perkins, who died intestate and without issue September 8, 1900, leaving surviving his wife, defendant herein, and his brother, plaintiff herein, and no other heirs. That same was occupied by defendant and her said husband as homestead at the date of death of said Albert, who was drowned in the storm of September 8, 1900, at which time all improvements were destroyed. What was known as a relief committee donated a house which was erected on said lot just after the storm and became a part of the real estate. Defendant continued to occupy the property as homestead for several years and was entitled to such occupancy as the surviving widow. On or about January 1, 1912, defendant removed from and abandoned said premises as homestead and left Texas, whereupon plaintiff became entitled to have partition. That defendant has since her removal collected $350 rents which plaintiff Iileads as an offset to defendant’s claim for improvements. That limitation did not run on account of defendant’s right of occupancy of homestead. That about January 1, 1912, defendant attempted to sell and did enter into a contract whereby she attempted to sell the entire property, though she only owned a one-half interest therein. That it is necessary that plaintiff secure a judgment establishing his right of record to a one-half interest in the property. That defendant is charged with the duty of paying taxes during her use and occupancy, but has permitted taxes to accumulate to the extent of $200. That the lot is 43 feet 10 inches wide, by 120 feet long, and incapable of partition, as to divide same into two parts would destroy the value of each part Plaintiff prays judgment for his one-half interest, for accounting, for pay-m.ent of taxes, and for partition, and in the alternative, should partition be refused, plaintiff asks that he have judgment establishing his title to an undivided one-half interest.” In answer to this petition defendant filed supplemental answer reiterating her pleas of limitation and of title under the decree of the district court of Galveston county and her plea of improvements in good faith. She further expressly denies that she has ever abandoned the property' as her homestead. After hearing the evidence, the trial court instructed the jury to return a verdict in favor of plaintiff for an undivided one-half interest in the property, in favor of defendant for the other one-half, and in favor of defendant on her claim of homestead. Upon the return of this verdict, judgment was rendered in accordance therewith decreeing title to an undivided one-half of the property to each of the parties, but denying plaintiff’s right to partition so long as defendant may continue to use the property as her homestead.

The record discloses the following facts: The property in controversy was acquired by Albert Perkins on February 20, 1893. Subsequent to his acquisition of the property, he married the defendant Laura Perkins, and it became their homestead and was occupied by them as such until the storm .of 1900, when all of the improvements were destroyed and Albert lost his life. Soon after the storm, the defendant, with the assistance given her by the relief committee, placed other improvements thereon, and the property, though rented for much of the time since the second improvéments were placed thereon, has not been abandoned as homestead by the defendant. She has been out of the state for her health five or six times and had remained away for a year or two at a time. She had offered to sell the property, but did not intend to abandon it as a homestead unless she could sell it upon satisfactory terms. She has acquired no other home. When she was not living on the place herself, it has been rented and occupied by her tenants. It was vacant sometimes for a month or so between the going out of one tenant and the coming in of another, but with this exception it has been continuously occupied by the defendant or a tenant under her for more than ten years before this suit was brought. Defendant has claimed title to all of the property at all times.

There is evidence tending to show that plaintiff, who assisted in improving the place in 1901 after the storm, knew that defendant claimed title to all of the property. Defendant has paid all taxes due on the property from 1900 to 1912 inclusive, but the taxes were not paid each year as they accrued. She has spent $400 or $500 in improving the property, and the improvements placed thereon by her are worth said amount. After the death of Albert Perkins a former wife of his, from whom he had been divorced, qualified as administratrix of his estate. A probate proceeding in the county court involving the claim of said divorced wife to an interest in an insurance policy left by Albert, and claims of defendant for homestead and allowance in lieu of exempt property and for a year’s support, was appealed to the district court of Galveston county. Upon this appeal the district court entered a decree adjudging the divorced wife $400 out of the proceeds of said insurance policy and adjudging the remainder of said proceeds to defendant as allowance in lieu of exempt property and for a year’s support, and further decreeing “that lot number ten (10) in southwest quarter of outlot number one hundred and thirteen (113) and improvements in the city and county of Galveston, Texas, which was the homestead of decedent and fiis wife, Laura Perkins, be and the same hereby, is set apart to, and fee-simple title therein vested in said Laura Perkins as and for her homestead.” Plaintiff is a full-brother of Albert Perkins; they having been born of the same father and mother, both of whom are dead. The father of plaintiff and Albert had another son, George Perkins, who was not a son of the mother of plaintiff and Albert. George is now dead and has left several children who are now living. George, Albert, and plaintiff were all born in slavery and their parents were slaves. It is not shown that then-father lived with either of the women, by whom he begot the sons named, as his wife until his or her death, or' that he was so living with either of them on August 15, 1870. Plaintiff and Albert Perkins were the only children of their mother. Albert left no children.

The first assignment of error presented in appellant’s brief assails the action of the trial court in instructing a verdict for the plaintiff on the ground that the evidence raised the issue of title in defendant by limitation to all of the property in controversy and that issue should have been submitted to the jury.

. The assignment is without merit. If it be conceded that the evidence was sufficient to sustain a finding that defendant’s claim of ownership of all of the property was known to plaintiff for more than ten years before the suit was brought, that such claim was continuous during all of said time, and that defendant’s possession was continuous during said ten years, no title by limitation could be acquired by her because her possession of the property as a homestead being lawful was not adverse to plaintiff. The defendant’s claim of ownership of the whole of the property did not affect her right to its use and occupancy as a homestead, and plaintiff could not because of such claim recover possession of any part thereof. This being true, his title would not be lost by his failure to sue within ten years after he received notice of defendant’s claim.

The case is not like that of a tenant in common who repudiates the title of his co-tenant. Iu such case the tenant in possession has no right to the possession of the whole of the premises as against his cotenant, and, when he repudiates the rights of his cotenant and takes possession of the whole, the coten-ant can sue and recover possession of that portion of the property owned by him.

Plaintiff having no right of possession in this case, he was not required to bring suit in order to prevent defendant’s claim ripening into a title. There can be no difference in principle, so far as limitation is concerned, between the possession of one holding under a homestead right and the possession of a life tenant, and it is well settled that limitation will not run against a remainderman in favor of the life tenant, or one claiming under him during the life of such tenant. Cook v. Caswell, 81 Tex. 678, 17 S. W. 385; Millican v. McNeill, 102 Tex. 189, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74; Covan v. Bynum, 17 Tex. Civ. App. 180, 43 S. W. 319; Beaty v. Clymer, 32 Tex. Civ. App. 322, 75 S. W. 540; Meurin v. Kopplin, 100 S. W. 984; Kesterson v. Bailey, 35 Tex. Civ. App. 235, 80 S. W. 97.

The fact that the evidence fails to show that the father and mother of plaintiff and Albert Perkins were legally married does not affect plaintiff’s right to recover. Plaintiff and Albert, being children of the same mother., would inherit from each other without regard to whether their father and mother were legally married. Article 2473, Revised Statutes; Berry v. Powell, 47 Tex. Civ. App. 599, 105 S. W. 345.

The half-brother, George, not being a child of the mother of Albert, did not inherit from him, and his children, having no interest in the property, should not have been made parties to this suit.

The plaintiff having no right to recover possession of his one-half of the property, and no right of partition, the issue of improvements in good faith could not be determined in this suit, and the trial court properly so held.

It is hardly necessary to notice appellant’s claim of title under the decree of the district court of Galveston county before set out, and we do not understand that counsel for appellant contend that this decree vested any title in appellant.

The probate court had no jurisdiction of the question of title, and the appeal from that eourt to the district court could not confer upon the latter court jurisdiction to hear and determine such question. In addition to this, it does not appear that any question of title was raised by the pleading in that proceeding. But if the court had had jurisdiction of the question and the title to the property had been put in issue by the pleading, plaintiff, not having been a party to the suit, would not be bound by the judgment.

Plaintiff, having failed to establish the abandonment by the defendant of her homestead right in the property, was not entitled to partition, and, if defendant had only asserted her homestead right and had not by affirmative pleading claimed title to all of the property, the proper judgment would have been that plaintiff take nothing by his suit. In such case the judgment in favor of defendant would not have been an adjudication of the question of title. But when defendant, in addition to her homestead claim, asserted title to all of the property, it was proper for the court to determine that issue. A judgment against defendant on her claim of title to all of the property would have been sufficient, but we can see no objection to the form of the judgment rendered.

Appellee has presented a cross-assignment complaining of the judgment of the court refusing him partition of the property. The assignment is too general in its terms to require our consideration; but, if it could be considered, it could not be sustained. There is no evidence of an abandonment by defendant of her homestead right in the property. Her offer to sell the property was not an abandonment of her homestead rights therein, and'it is well settled that the fact that she was not living on the property was not an abandonment of her homestead rights; she not having acquired another home. Foreman v. Meroney, 62 Tex. 723.

We are of opinion that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.


text:
    ANGELINA & N. R. R. CO. et al. v. DUE.

    (No. 6538.)
    (Court of Civil Appeals of Texas. Galveston.
    April 17, 1914.
    Rehearing Denied May 14, 1914.)
    1. Master and Servant (§ 88)—Injuries to Servant—Relation oe Parties.
    Where a lumber company had constructed portions of a railroad track which it had turned over to a railroad company upon payment of the cost of construction, and was engaged in constructing an additional portion of the track which had not yet been turned over to or paid for, or operated .by the railroad company, the railroad company was not liable for injuries to an employs of the lumber company, caused by the negligence of other employés of that company, even though the stockholders and general officers of the two companies were largely the same.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.]
    2. Master and Servant (§§ 278, 281)—Inju-ries to Servant — Sufficiency of Evidence—Master’s Negligence—Contributory Negligence—Last Clear Chance.
    In an action for injuries received by a railroad construction employé, evidence held
      sufficient to warrant findings that the engineer and fireman of the work train were negligent in starting the train without warning, that the injured servant was . not negligent, and that those operating the train saw him in time to avoid the injury and failed to use proper care to prevent it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977, 987-996; Dec. Dig. §§ 278, 281.]
    3. Master and Servant (§ 289) — Injuries to Servant — Questions for Jury — Contributory Negligence.
    A railroad construction employé was not negligent, as a matter of law, in stepping upon the track in front of a work train which was standing still at the time, and in proceeding down the track toward the water barrel without looking back, since he had the right to rely upon the performance by those in charge of the engine of their duty to give a warning before they started the train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    4. Master and Servant (§ 228) — Injuries tq Servant — Contributory Negligence — Statute.
    Acts of 31gt Leg. (1st Ex. Sess.) c. 10, § 2, which provides that, in actions brought under that act by employés of a common carrier by railroad for personal injuries, the contributory negligence of the employé shall not bar recovery, when construed with the other sections of the act which apply to all railroads, and in the light of the manifest purpose of the act, applies to a railroad operated by a lumber company in conducting its own business, as well as to a common carrier.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 670, 671; Dee. Dig.- § 228.]
    5. Master and Servant (§ 97) — Injuries to Servant — Negligence—Anticipation of Injury.
    Where the engineer and fireman of a work train started it without giving any warning, although they knew that there were a number of workmen around the train, they must have anticipated that such negligence might result in injury to a workman, especially where the engineer testified that it was an absolute rule to give a signal before starting such a train.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.]
    6. Master and Servant (§ 264) — Injuries to Servant — Petition — Last Clear Chance.
    Where a petition for injury to a railroad construction employé charged that the defendant’s servants were negligent, in that they saw plaintiff pass the engine, and knew that he was a short distance in front thereof, and was ignorant of their intention to start, and knowing and seeing his position in time to have avoided the injury, they carelessly started the train, the allegation is sufficient to raise the issue of last clear chance.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.]
    7. Master and Servant (§ 284) — Injuries to Servant — Instructions — Last Clear Chance.
    Where plaintiff, an injured servant, had testified at a former trial that, when he passed the engine of a work ti’ain which later struck and injured him, the fireman was in the gangway, from which place he could not have seen the plaintiff when he stepped upon the track in front of the engine, and at the second trial testified that .the fireman was at his window, from which the plaintiff could have been seen, and his later testimony was corroborated by other witnesses, it was for the jury to say which testimony was true, and an instruction upon the doctrine of the last clear chance which was predicated upon the later testimony was proper.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1000-1090, 1092-1132; Dec. Dig. § 284.]
    8. Master and Servant (§ 286) — Injuries to Servant — Sufficiency of Evidence-Question for Jury.
    In an action for injuries received by a railroad construction employé who was struck by a work train, testimony by the engineer that he could have seen the plaintiff if he had been where the testimony of the plaintiff and other witnesses showed that he was, and that the engineer looked before he started the train but did not see any one on the track, is sufficient to take to the jury the issue that the engineer did see the plaintiff; the presumption arising from the facts not being conclusively rebutted by the denial by the engineer.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    9. Trial (§ 191) — Injuries to Servant — Instructions — Assuming Facts.
    In an action for injuries to a railroad construction employé, an instruction upon the doctrine of last clear chance which stated that, if the jury believed from the preponderance of the evidence that the engineer and fireman knew that the plaintiff was in front of the engine in time to have avoided the injury, the defendant was liable was not erroneous, as assuming that the engineer and fireman discovered plaintiff’s peril in time to have avoided the injury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.]
    10. Master and Servant (§ 137) — Injuries to Servant — Instructions—Master’s Duty to Warn.
    An instruction that, where persons have a right to be on the track near a train that is standing still, it is the duty of the employés to give a warning before starting the train, and that the failure to do so would be such negligence as would entitle another employé injured as a result thereof to recover, is not erroneous, since reasonable minds could not differ in the conclusion that ordinary care in such case required the warning to be given.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig. § 137.]
    11. Master and Servant (§ 293) — Injuries to Servant — Instruction—Master’s Duty to Warn.
    A statement in such a charge that it was the duty to give some warning, such as by ringing the bell or blowing the whistle, is not erroneous, as requiring a warning to be given in one of those two ways, and not otherwise.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.]
    12. Appeal and Error (§ 1066) — Harmless Error — Instructions.
    If the charge was open to that construction, the error was harmless, there being no evidence that a warning was given in any manner other- than by ringing the bell or blowing the whistle.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.]

      13. Damages (§ 132) — Excessive Damages— Loss oe Foot.
    A verdict for $15,000 for damages sustained by a minor whose foot was so severely injured by a railway locomotive that its amputation was necessary is not so excessive as to justify the belief that the jury were moved by passion or prejudice, or by some improper influence.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by James W. Due, by his next friend, S. T. Due, against the Angelina & Neches River Railroad Company and the Angelina County Lumber Company. Judgment for plaintiff against both defendants, and both defendants appeál.
    Judgment against the Railroad Company reversed and rendered in its favor, and judgment against the Lumber Company affirmed.
    Arthur A. Seale and - Wm. A. Wade, both of Nacogdoches, Mantooth & Collins, of Luf-kin, Young & Stinchcomb, of Longview, and T. D. Wynne, of Fordyce, Ark., for appellants. C. M. McKinnon, of Groveton, King & King, of Nacogdoches, and Platt & Nelms, •of Groveton, for appellee.

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

       Application for writ of error pending in Supreme Court.

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

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

   PLEASANTS, C. J.

Appellee, by his next friend, S. T. Due, brought this suit against appellants, Angelina & Neches River Railroad Company and Angelina County Lumber Company, to recover the sum of $25,000, as damages for personal injuries sustained by him, and alleged to have been caused by the negligence of appellants. The petition alleges, in substance, that appellee at the time of his injury was in the employment of both of the defendants as a surfacer engaged with others in the construction of a railroad for defendants; that, while in the proper performance of the duties of his employment, the employes of defendants operating a work train on said railroad negligently put said train in motion without ringing the bell or sounding the whistle on the engine attached thereto, or giving any warning to appellee, and ran said engine against appellee, knocking him down and so injuring his foot as to require its amputation. The petition further alleges that the operatives of said engine and train were negligent in that, after they saw and realized appellee’s peril, they failed to use the means at their command to prevent his injury.

The pleadings of .the appellants, including their general denial, put in issue the allegations of the appellee, and permitted them to make the following defenses:

(1) That the appellee and the engineer and fireman were not employes or representatives of the appellant railroad company, but were, at the time of the injury, employes of the appellant lumber company.

(2) That the appellee placed himseif on the track ahead of the engine when he knew, or by the exercise of ordinary care could have known, it was going to move in his direction, and was therefore guilty of contributory neg' ligence.

(3) That the Angelina County Lumber Company was not a common carrier, and that the contributory negligence of the appellee prevented a recovery against it.

(4) That the evidence was not sufficient to. submit the issue of discovered peril to the-jury.

(5) That the plaintiff received his injury as. the result of his own negligence, and not by reason of any negligence of either of the appellants.

(6) That plaintiff’s injury resulted from a risk assumed by him, and defendants were-not liable therefor.

The trial in the court below with a jury resulted in a verdict and judgment in favor-of plaintiff for the sum of $15,000.

The evidence shows that the railroad,, in the construction of which appellee was employed, was being constructed by the lumber company. Appellee and the others engaged in the construction of said road, including the operatives of the work train by which appellee was injured, were employed: and their wages paid by the lumber company. After the road was completed, which was. shortly after appellee’s injury, it was sold or turned over by the lumber company to the railroad company in consideration of' the payment to the lumber company by the-railroad company of the costs of its construction. The stockholders of the two companies-were with a few exceptions the same, and they had the same general officers. But they were separate and distinct corporations, and the accounts of each were kept separate from, the other. The lumber company was organized 10 years prior to the organization of the-railroad company, which was chartered about 12 years ago. The railroad operated by the-railroad company was all built by the lumber company and taken over and operated by the railroad company after its completion. It had been extended from time to time, and,, after each extension was made by the lumber company, it was taken over by the railroad company upon the payment of the cost of' construction. The undisputed evidence shows-that at the time of plaintiff’s injury the railroad company had not taken over that portion of the road upon which appellee was at. work, and was not operating same as a part, of its railroad. The lumber company had been using the road for a short time in hauling logs to its mill; but it was not completed so that it could be used as a commercial railroad, and it was not taken over by the railroad company until it was so-completed and ready for general use as a railroad.

The appellants have filed a joint brief but the assignments in the brief are not all joint assignments.

The first assignment presented by appellant railroad company complains of the refusal of the court to instruct the jury to return a verdict in favor of said company.

This assignment must he sustained. The facts before set out conclusively show that the operatives of the engine, by whose negligence appellee alleges he was injured, were not in the employment of the appellant railroad company, but were employed, by the lumber company, who was also the employer of appellee, and that the >appellant railroad company was not even the owner of the railroad upon which appellee was working at the time of his injury. Upon these facts it goes without saying that the railroad company cannot be held liable for appellee’s injury.

Our conclusion that this assignment should be sustained renders it unnecessary for us to pass upon the other assignments presented by the appellant railroad company.

The circumstances under which appellee was injured, as disclosed by the record, are as follows: Just before his injury appellee and other employés of appellant lumber company had been engaged in unloading dirt, to be used for surfacing the road, from a train of cars standing on the track upon which the dirt was to be placed. When the work of unloading was finished, appellee walked along the side of the train, passed the engine, which was facing west, and proceeded on down the track towards the water barrel, which was near the side of the track some distance in front of the engine. The foreman in charge of the work was ahead of ap-pellee, walking down the track. It was in the evening about, the time that work was usually suspended and the employés taken in to the work camp a few miles distant. The water barrel was taken in on the train each evening for the purpose of bringing out water for the use of the hands the next day. Ap-pellee testified that he was going to the water barrel for the purpose of assisting in placing it on the train when the time came to start in to camp. He did not know that they would go in. at once, and he had his tools with him and was prepared to go to work on the track if so directed by the foreman. As he passed the engine he saw the fireman, who was sitting on his seat in the cab of the engine and looking out of the side window of the cab. The fireman saw appellee and spoke to him. After appellee had passed the engine a short distance, he stepped on the ends of the ties and had proceeded but a short distance further when he was struck by the engine which had been put in motion without the whistle having been blown or the bell rung, or a warning of any kind given appellee of its approach. Appel-lee was thrown down, and his foot caught under the wheels of the engine and so mashed that its amputation became necessary. When the train was put in motion, the engineer and fireman were in their proper places on the engine. There were windows in front of the cab, and there was no obstruction which, would prevent their seeing appellee walking-on the ends of the ties in front of the engine. Each of them testified that he did not see ap-pellee until just before he was struck by the-engine, and when it was too late for them to-stop the train and prevent the injury. The-engineer testified as follows: “There was nobody ahead of that train on that track when. I started out. I looked down the track to-see if I could locate the water barrel. I was looking on both sides of the track for the water barrel, and I could have naturally seen a person on .either side of the track. I do not think a person could have been further - than six or eight feet from the engine that I could not have seen. If he had been on the ends of the ties on the fireman’s side, eight or ten feet in front of the engine, I could have seen him. If he had been in three or four-feet of the front of the engine, and on the-fireman’s side, I do not suppose I could have seen him. I could not see him if he was • right close to the engine. I could not see immediately in front of it, but within a few feet. * * * I do not think I could-have seen him if he was only three or four feet from the engine, but think I could have-seen him if he was eight or ten feet from it. I never did start that engine, when pulling a gang of men like that, without looking to-see whether or not anybody was in front of" it. Whenever I moved that engine, and was going ahead, I would always look around for - signals, and look to see if anybody was on the track. I did that on this occassion. * * * If he [Due] had walked by the side • of the engine on the fireman’s side, and had; gotten on the track in front of the engine on, that side, the fireman could have seen him. The fireman said he saw him; but he never said anything about it until after he was. hurt. The fireman was about 20 years old. There are three windows on the fireman’s side of the cab, one to the side, one in front, and one to the rear. * * * That fireman was slow to think. I told you on one occasion that he was inclined to be careless and slow to think. I don’t know about telling you that I could turn that engine around before he-could change his mind. I hardly know whether he was reliable or not. I had complained about his unreliableness. I had made this-complaint to the company. I had complained. to the officials of the company about his being - unreliable. * * * Nixon rang the bell; that was one of his weaknesses; he always would ring the bell; he worried me by ringing the bell; he rang it nearly all the tifiae. He was very slow, and he was unsatisfactory about telling me anything; he would. hardly ever say anything to me about anything, and that is the objection I had to him.. I never had any case where anybody was in. danger and find objection to him about that. It was just with reference to the management of his part Of the engine. That was the only - time we ever hurt anybody while he was with me.”

In not looking back after he passed the engine, appellee relied upon the known rule which required that, before the train should be put in motion, the whistle should be blown.

These facts are sufficient to sustain the findings that the operatives of the train were negligent in putting the train in motion without blowing the whistle or ringing the bell of the engine, that appellee was not guilty of contributory negligence, and that the operatives of the train saw appellee and realized his peril in time to have avoided injuring him, and failed to use proper care to prevent his injury.

The first assignment of error presented by the lumber company complains of the refusal of the court to instruct the jury to return a verdict in favor of said company. Under appropriate propositions submitted under this assignment it is contended, first, that the undisputed evidence shows that appellee was guilty of contributory negligence, and, the evidence being insufficient to raise the issue of discoverd peril, and the defendant not being a common carrier, it cannot be held liable for plaintiff’s injury; second, that the act of the operatives of the train in putting same in motion, and failing to give proper warning before starting the train, was not negligence, because said operatives could not have reasonably anticipated that such act and omission on their part might result in injury to any one.

These contentions are disposed of by our fact conclusions before stated. It seems clear to us that, under the circumstances shown by the evidence, appellee cannot be held guilty of negligence, as a matter of law, in going upon the track in front of the engine. The engine was not in motion when he went upon the track, and he had a right to rely upon the performance by the. operatives of the engine of their duty to give proper warning before putting it in motion, and in the absence of such warning it cannot be held, as a matter of law, that a person of ordinary prudence would not .have proceeded down the track as appellee did without looking back to see if the train was coming. While the evidence is conflicting upon the question, there is evidence to sustain the findings that no warning of any kind was given of the moving train, and the noise made by its movement was not sufficient to attract appellee’s attention, and it is beyond dispute that he did not hear it coming until it struck him. Under these facts the issue of contributory negligence was a question for the jury.

We do not think the act of the Thirty-First Legislature, which provides in substance that, in suits by an employs against a railway company to recover damages for personal injuries, the fact that the employs may have been guilty of negligence should not bar a recovery, but may be considered by the jury in determining the amount of damages to which such employs is entitled, should be held to apply only to railroads operated as common carriers. Acts 31st Leg. (1st Ex. Sess.) c. 10, p. 279. The language.of the second section of the act is susceptible of the construction contended for by appellant; but, when the entire act is considered, and due regard given to the evident purpose and intent of the Legislature, we do not think it should be so construed. The employés of a railroad operated by a lumber company in conducting its business are engaged in the same dangerous employment as the employés of a railroad operated as a common carrier, and entitled to the same consideration, and, unless the act as a whole is susceptible of no other construction, it should not be interpreted as discriminating between such em-ployés.

As we have before found, the evidence was sufficient to raise the issue of discovered peril; but, if that issue was not in the case, the appellee was entitled to have the jury pass upon his right to recover upon the other grounds of negligence alleged.

The contention that the evidence fails to show negligence because the operatives of the train could not have reasonably anticipated that putting the train in motion without giving any warning would likely result in injury to some one is wholly without merit. The operatives of the engine knew that there were a number of employés around and about the train, and, so far from there being no reason for the engineer and fireman to anticipate that putting the train in motion without warning might injure some of said employés, it seems to us that every dictate of reason and prudence would suggest the danger of such movement of the train. As showing his full appreciation of such danger, the engineer testified: "It is the absolute rule among railroad people to always give signals when going to start a train, and that is blowing two blasts of the whistle; that is done on anything like a work or freight train.”

The third and fourth assignments presented by the lumber company are each predicated upon the assumption that the undisputed evidence shows that appellee was guilty of contributory negligence, and for the reasons before stated each of said assignments is overruled.

The fifth assignment complains of the following portion of the court’s charge: “If the defendants, by their servants in charge of the engine (that is, the engineer and fireman, or either of them, if you should find that such engineer and fireman were the servants of the defendants), knew when they started the engine, or after it was in motion, that plaintiff, James W. Due, was in front of the engine on the track, or so near to it that, unless he moved aside, he would be struck and injured, and they had such knowledge in time to have avoided injury, such knowledge imposed upon them the duty of using every means then within their power, consistent with the safety of the engine and cars and the persons thereon, to avoid running him down or striking him, and failure to use such means would render the defendants liable, notwithstanding plaintiff may have been wrongfully on or so near the track. Therefore, if you believe from a preponderance of the evidence that, after plaintiff, Due, was discovered in front of the engine, if you find he was discovered by the engineer or fireman on the track, or so near it that he would be struck on its' approach, defendants’ servants in charge of the train negligently failed to use such care, attention, and skill, and effort to get him off the track before starting (if they knew of his presence in front of the engine before starting), or if they first discovered his presence in front of the engine after starting, and negligently failed to use such care, skill, and effort then to stop or check up the train and avoid the collision with plaintiff, as they reasonably should and could have done after it reasonably became apparent to them that plaintiff would not get off of or a safe distance from the track, and that he was in peril of injury, and if plaintiff received some or all of the injuries complained of in his petition through such fault of defendants’ said servants, then you will find for plaintiff.”

The first objection to this 'charge is that plaintiff’s petition does not present the issue' of discovered peril, in that it failed to allege that the operatives of the engine saw plaintiff “in a place of peril in time to have, by the use of the means at hand, avoided his injury.”

This objection is untenable. The petition contains the following allegations: “Plaintiff charges that the defendant was guilty of negligence and want of care in this: (a) Defendant’s said agents, servants, and -employes in charge of said engine and train saw this plaintiff when he passed said engine, and knew that he was at a point only a few feet in front of same, and was in total ignorance of their intention to start the same, and, knowing and seeing plaintiff’s perilous position in time to have avoided his said injury, negligently and carelessly started said train and ran the same down upon this plaintiff, injuring him as aforesaid.”

The allegation that the operatives of the train saw appellee when he passed the engine, and knew that he was at a point only a few feet in front of same, and ignorant of their intention to start the engine, is, we think, a sufficient allegation that' the operatives of the engine knew of the peril and danger appellee would be placed in if the engine was started without warning. But the petition goes further and alleges that the operatives, “knowing and seeing plaintiff’s perilous position in time to have avoided said injury, negligently and carelessly started said train and ran the same down upon this plaintiff.” We hardly think there could be a more positive allegation of knowledge on the part of the operatives of the engine of appel-lee’s perilous position.

The next objection to this charge is that the evidence is insufficient to sustain a finding that the operatives of the train discovered appellee’s peril in time to have avoided injuring, hm.

, The appellee testified that at the time he passed the engine going to the water barrel the fireman, Nixon, was sitting in his seat on the left side of the engine, which was the side by which appellee passed. There were three windows on that side of the cab, one in front, one on the side, and one in the rear. From his position in the cab, the fireman could see up the track far beyond the place at which appellee was walking when he was struck by the train. He further testified: “I spoke to the fireman as I passed, and he saw me and spoke to me. I believe I could have reached up through the window and touched him when he spoke to me. I looked up and saw him; he was sitting upon his seat, with his head kinder hanging out of the window, and was looking right at me, and saw me. I was acquainted with the fireman, and he was acquainted with me. 'When I spoke to him, and he spoke to me, I would say he was about two feet from me. I did not stop walking at the time, but just walked by. The last time I saw him he was sitting in the window on his seat, and was looking at me. I went down track toward the river. After I passed from the side window on down to the side of the engine, the fireman would have seen me by looking out through the front window. He could have seen me a long ways down the track. The track was straight for 200 or 300 yards, I suppose, and was about level. The engine was standing still when I passed in front of it.”

The fireman, Nixon, testified that he saw appellee as he passed by the engine; that at this time he (the fireman) was standing in the gangway between the engine and the tender, and appellee, was walking by the side of the engine going towards the front; that the engine was moving slowly at the time the appellee was walking beside it; and that he did not see appellee again until he fell. Ap-pellee is corroborated in his statement that the train was standing still when he passed by it, and when he went on the track, by other witnesses.

George Matthews, a witness for plaintiff, testified that appellee was from six to ten feet in front of the engine before it was started. Appellee testified that he got on the track one or two feet in front of the engine, and that he had walked fifteen or twenty from where the engine was standing when he got on when he was struck. It is shown by the testimony of the engineer before quoted that, before the engine was started, he looked down the track to locate the water barrel, and that he could have seen any person on either side of the track who was as much as six or eight feet in front of the engine, but he does not suppose that he could have seen one who was on the left side of the track, and only three or four feet in front of the engine. He further testifies he did not see appellee, hut that, if appellee walked by the side of the engine and got on the track in front of the engine, the fireman could have seen him and told witness that he did see him, but did not tell him this until after appellee was hurt; that the fireman was careless and slow to think and act; and that he had complained of the fireman’s unreliableness.

We think it clear that the evidence raises an issue as to whether the fireman knew and saw appellee on the track in front of the engine at the time the engine was started. If he saw him, he was bound to have realized appellee’s peril from the approach of the engine put in motion without warning. If the fireman saw appellee in his position of peril, and failed to ring his bell or give other warning which he might have dope in time to avoid the injury, or failed to inform the engineer, who, the evidence shows, could have stopped the engine in six or eight feet, such failure on the part of the fireman to use the means at his command to avoid the injury was negligence, and appellant was liable therefor, without regard to the question of appellee’s negligence.

Appellant contends that upon a former trial of the case appellee testified that, when he passed the engine, the fireman was in the gangway between the engine and the tender, and that appellee is bound by his former testimony, and will not be permitted to contradict it and place the fireman in a different position, and that under the former testimony of appellee the position of the fireman was such that he could not have seen appel-lee on the track in front of the engine; and therefore the issue of discovered peril is not raised.

Appellee did not admit that he made the statement on the other trial claimed by appellant, but testified that he did not think he made any such statement, and that the fireman was not in the gangway but in his seat when he passed the engine. The stenographer who made a record of the testimony on the former trial testified that he felt sure the record was correct; and this record shows that the appellee testified as claimed by appellant. This testimony raises an issue as to what appellee’s former testimony was; but, if it be conceded that he did state on the former trial that the fireman was in the gangway, it was a question for the jury to determine from all the evidence whether his statement upon this or the former trial was correct, and there is no rule of estoppel which would prevent the jury from accepting as true the statement made on the last trial, especially as that statement is corroborated by other evidence. I

We think the evidence is also sufficient to raise the issue as to whether the engineer saw appellee upon the track in time to have avoided his injury. His statement that he did not see him is not directly contradicted as is the fireman’s statement. But the jury could have found from the evidence that, at the time the engine started, the ap-pellee could have been seen by the engineer, who testified that he looked down both sides of the track before starting the engine. The presumption that arises from these facts is not conclusively rebutted by the statement of the engineer that he did not see the appellee.

The objection to this charge that it is upon the weight of the evidence, in that it assumes that the operatives of the engine discovered appellee’s peril in time to have avoided his injury, is without merit.

The court did not err in refusing to give-any of the special charges mentioned in appellant’s assignments of error 6 to 13, inclusive. Those of said charges which are correct were either unnecessary because the issue submitted was sufficiently covered by the charge given by the court, or the issue was not of sufficient importance to justify the belief that the refusal to give such charge probably resulted in an erroneous verdict. Each of said assignments is overruled without discussion.

The fourteenth assignment of error complains of the following charge; “It is the' duty of the operators of a train to use ordinary care to discover persons who may be upon the track before starting a train, when, such trains be standing, if such persons have a right to be upon the track, and to give-some warning, such as ringing the bell or blowing the whistle on the engine, to such persons that said train is attempting to start up, and a failure to use such care would be such negligence as to entitle a person who-was not himself also guilty of negligence to-recover for injuries received in consequence-thereof.”

The objection made to this charge is that it in effect makes the failure to ring the bell or blow the whistle before starting a train, under circumstances stated in the charge, negligence as a matter of law, when there is no statute requiring that the bell be rung or whistle blown under such circumstances, and the failure to give such warning does not show such a lack of ordinary care that reasonable minds cannot differ in the conclusion that such failure constitutes negligence.

The charge is not subject to this criticism. We do not think reasonable minds can differ in the conclusion that, before a train is put in motion on a track on which people have a right to be, and, as in this case, may be expected to be, it is the duty of the operatives of such train to use reasonable care to discover persons on the track, and to give them warning of the approach of the train. The mention in the eharge of ringing the bell or blowing the whistle does •not require that one of these warnings should have been given; but such or any similar warning sufficient to attract the attention of the people on the track is all that the charge requires. But, if the charge should be constructed as contended by appellant, it was harmless error,' because there was no ■evidence that the operatives of the train gave any warning other than ringing the bell and ■blowing the whistle, and, if these warnings were not given, the engine was moved without any warning.

The fifteenth and sixteenth assignments of error are without merit, and each of them is overruled without discussion.

The seventeenth assignment complains of the refusal of the court to instruct the jury that plaintiff was not entitled to recover if the jury found his injury was the result of a want of ordinary care on his part in walking upon the track in front of the engine.

It follows from our conclusions that the act of the Legislature before cited, providing that, in suits by employés of railroads to recover damages for personal injuries, the fact that the employé is guilty of negligence shall not bar his right of recovery, applies to this suit, the requested charge was erroneous, and it was therefore properly refused.

The verdict of the jury for $15,000, in view of the character of appellee’s injury and the suffering which he must have undergone, is not so large as to justify the belief that, in fixing that amount as compensation for appellee’s injury, the jury were moved by passion or prejudice, or some improper influence, and we are therefore not authorized to disturb their finding upon this issue.

The remaining assignments in appellant’s brief do not require discussion, none of them in our opinion present any error which requires a reversal of the judgment against the appellant lumber company, and each of them is overruled.

The judgment of the court below against the appellant railroad company is reversed, and judgment here rendered in favor of that company, and the judgment in favor of ap-pellee against the appellant lumber company is affirmed.

Reversed and rendered in part. Affirmed in part.