author: McMEANS, J.

text:
    GREEN et al. v. GALVESTON CITY CO. et al.
    (No. 7271.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 6, 1916.
    Rehearing Denied Jan. 4, 1917.)
    1. CORPORATIONS &wkey;> 109 — TRANSFER OF STOCK —Evidence—Sale.
    In an action to establish ownership of corporate stock originally purchased by plaintiffs’ ancestor, the evidence may be sufficient to show that the ancestor had sold the stock during his lifetime, though there is no evidence as to the identity of the buyer, and no claim to such stock had ever been made.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <&wkey;109.]
    2. Corporations <&wkey;109 — Ownership oe Stock — Evidence.
    In an action to establish ownership of corporate stock originally issued to plaintiffs’ ancestor, evidence that one share less of the stock had been issued than plaintiffs admitted in their petition had been taken up by the corporation is sufficient to warrant the jury in finding that the share issued to plaintiffs’ ancestor had been taken up by the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <§=>109.]
    3. Pleading <§=>36 (2) — Effect—Admissions.
    In such an action plaintiffs are bound by the allegations of their pleadings as to the amount of stock taken up by the corporation.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 81; Dec. Dig. <§=>36(2).]
    4. Evidence <§=>89 — Presumptions — Rebuttal.
    The presumption that the relation of shareholder, shown to have once existed, continues, may be rebutted by competent evidence, especially where the stock could be transferred by the owner and the title passed by mere indorsement and delivery.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 111; Dec. Dig. <§=>89.]
    5. Corporations <§=>135 — Relation to Stockholders — Trust.
    A corporation stands in the relation of trustee to its stockholders, but this relation applies to the true owners of the stock, and not merely to those who from the records of the corporation appear to be owners.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 467, 469; Dec. Dig. <§=>135.]
    6. Corporations <§=>109 — Ownership oe Stock — Liability oe Corporation.
    A corporation, when sued by the heir of one shown by its books to have been the holder of stock, transferable by indorsement of the certificate, can defend the action in the interest of the real owner, though his identity may be unknown to it, if it has evidence that the stock has been sold.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <§=>109.]
    7. Trial <§=>350(1) — Special Issue — Burden oe Proof.
    A special issue as to whether plaintiffs’ ancestor was the owner of certain corporate stock at the time of his death, that if the jury so believed from the preponderance of the evidence, they should answer the issue “Yes”; otherwise answer it “No,” was not objectionable as telling the jury that the burden was on plaintiffs to prove affirmatively that the stock had not been sold by their ancestor.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § S28; Dec. Dig. <§=>350(1).]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Action by Annie Lomax Green and others against the Galveston City Company and others. Judgment for the defendants, and plaintiffs appeal.
    Affirmed.
    G. E. Mann, of Galveston, and Ramsey Black & Ramsey, of Austin, for appellants. Maco Stewart and Edw. F. Harris, both of Galveston, for appellees.
   McMEANS, J.

This suit was brought by the appellants, claiming as the heirs of Thomas Green, against the Galveston City Company, and Maco Stewart, appellees, alleging the original ownership by said Thomas Green of one certain share of stock in the Galveston City Company issued to him in 1838, identified by trustees’ certificate No. 70 out of Book E, and alleging the loss' of said certificate and seeking to obtain a new certificate for said share, and recognition as stockholders, and to obtain a judgment for dividends due on said share, and for a proportionate interest of the property and assets of the corporation, and also seeking other relief not necessary to here mention.

The pleadings of plaintiffs and defendants are very lengthy, and, as no questions presented upon this appeal arise upon them, they will not be set out in this opinion. It may be said, however, that] the plaintiffs’ petition in this case is almost literally identical with the petition in the case of Robert Triplett Yeaman et al. v. Galveston City Co. et al., 173 S. W. 489, where a full statement thereof is made; the only changes being such as were necessary in view of the fact that this suit involves only one share, whereas that suit involved five, and this suit is, of course, brought by different parties. We believe, however, that a brief history of the Galveston City Company would be helpful to a clearer understanding of the issues involved and of the grounds of our decision:

“In 1836, the Congress of the Republic of Texas authorized the sale to M. B. Menard and associates of the league and labor of land on the east end of Galveston Island, upon the payment by Menard of $50,000. The associates of Menard were nine persons and did not include Robert Triplett, Neblett, Gray, or Green. On June 15, 1837, Menard, joined by Triplett, Neblett, and Gray, conveyed said land to Johnson, Jones, and Green as trustees, authorizing said trustees to issue 1,000 shares to be evidenced by certificates, and to sell 600 of same at not less than $1,500 per share, and directing that 400 certificates that had previously been issued by J ones should be regarded as 400 of said 1,000 shares. Any two of the trustees were authorized to act. ' It is provided the land shall be held subject to the orders of the shareholders — any party in interest had the right to purchase shares to be charged up to such interest.
“The trustees had printed and bound in five books, lettered A, B, C, D, and E, a large number of blank certificates; there being in each of the Books A, B, C, and D, 200 certificates signed in blank by Green and Jones, trustees. Book E contained 210 blank certificates signed in blank by Johnson and Green, trustees.
“The trustees sold only 17 certificates (and these 17 were out of Book E and sold to one Coleman); they failed to sell any others. Failing to sell the certificates, Jones and Menard left Book E at Richmond, Va., in the hands of the trustees, Johnson and Green, for the Virginia interests, and returned to Galveston, and there divided the other certificates among Menard and his associates.
“On April 13, 1838, there was organized at Galveston an unincorporated association styled the Galveston City Company, it not now being known or ascertainable who participated in said organization, beyond the fact that M. B. Menard was elected president, and McKinney, Williams, Baker, and Hardin elected directors, and Levi Jones appointed secretary. Minutes of the meeting effecting this organization are preserved and held among the archives of defendant Galveston City Company. The trustees of 1839 conveyed said land to the officers of said unincorporated association styled Galveston City Company.
“The company laid out said land into town lots, the site of the city of Galveston, and adopted the policy of selling lots for credit, and accepted, in payment for lots and for debts, the trustees’ certificates that had been issued by said trustees..
“The company issued certificates in the name of said company from time to time, accepting trustees’ certificates (issued by the trustees, Jones, Green, and Johnson), in exchange for certificates of stock in the Galveston City Company.
“In December, 1838, the Galveston City Company passed a by-law declaring it the duty of the holders of trustees’ certificates issued by the trustees, Green, Jones, and Johnson, to surrender same and take out in lieu thereof a certificate in the name of the company, stating the number of shares to which the party was entitled.
“On February 5, 1841, the Congress of Texas, incorporated the ‘stockholders of the Galveston City Company,’ ‘under the same name and style.’ The corporation thus created continued to operate with the same officers and on the same plan and method that existed prior to incorporation.
“In 1838, Menard, having paid the $50,000, received a grant of land from the Republic of Texas, and in 1842 Menard conveyed said land to the corporation.”

The case was submitted to the jury upon a single special issue, viz.:

“Was Thomas Green the owner of trustees’ certificate E — 70 at the time of his death in 1883? If you so believe from a preponderance of all the evidence, you will answer, ‘Yes’.; otherwise, you .will answer, ‘No.’ ”

The jury answered in the negative, and thereupon the court rendered judgment upon said answer in favor of the appellees, and from this judgment the appellants have appealed.

It is obvious that in submitting the special issue the court necessarily assumed that the evidence established that Thomas Green was the original owner of trustees’ certificate E — 70; and, without setting out any of the evidence bearing upon his original ownership, we will, for the purpose of this opinion, assume the same thing.

Appellant’s first, second, third, and fourth assignments of error complain of the refusal of the court to grant their request for a peremptory instruction in favor of the plaintiffs, such request being based upon the contention that the undisputed evidence established the right of plaintiffs to recover. The main contention of appellants is presented in the fourth proposition under these assignments, which is as follows:

“While a sale of property may be proven by circumstantial evidence and while, under some circumstances, such a sale or conveyance will be presumed, the law is that a sale or conveyance will not be presumed or inferred from circumstances which fail to show that any person, other than the person in whom the title is shown, has ever claimed the property under and by virtue of any such sale or conveyance. In other words, a sale or conveyance will be presumed or inferred only to support an actual claim, and, where there is no evidence showing any claim of the property by any other person, necessarily the law will not infer or presume, or permit a jury to infer or presume, a sale or , transfer to any other person.”

Under the thirteenth assignment,' the contention is made by appellants that,.unless the jury was able to say from the evidence to whom Thomas Green had transferred the certificate, then they were not authorized to find that he had transferred it, for the reason that, “where title to property is once shown in a given person, his title can only be divested or affected by showing that he had disposed of it to some other person, and, if the evidence offered to show such disposition does not show to what person he has disposed of it, it is insufficient in law to show a disposition of the property,” and in support of their contention cite the Texas cases of Baldwin v. Goldfrank, 88 Tex. 249, 31 S. W. 1064, and Brewer v. Cochran, 45 Tex. Civ. App. 179, 99 S. W. 1033.

For the purpose of this opinion we will assume, as heretofore stated, that Thomas Green was the original owner of the certificate of stock in question, and further that the hooks of the company do not specifically show that it had ever been surrendered to the company, as was allowable under its rules and regulations, nor that it was canceled upon its books. The evidence does not show the name of the transferee of the certificate, if it was in fact transferred by Thomas Green. There is, however, a great mass of evidence tending to raise the issue that Green had sold or otherwise disposed of the certificate, which, under the laws of the company, could have been transferred by simple indorsement and delivery, and that he was not the owner of it at the time of his death in 1883; and, in deference to the verdict of the jury, we find that the jury were warranted in finding from the evidence, in answer to the special issue submitted to them, that Thomas Green was not the owner of certificate E — 70 at the time of his death in 1883. To set out the evidence upon which this conclusion rests would extend this opinion beyond reasonable bounds, and indeed is unnecessary, in view of the appellants’ contentions, as we understand them to be, not that the evidence did not raise the issue of sale or other disposition vel non, but that it was legally insufficient in the absence of evidence to prove to whom the certificate was sold or otherwise disposed of and in the absence of proof of an assertion of claim of ownership by some other person.

In Condit v. Galveston City Co., 186 S. W. 402, this identical question of law was presented to and overruled by this court, and we see no reason now for receding from, that ruling, but upon the authorities and reasoning there given we are constrained to again rule as in the case cited.

But we think there is evidence from which the jury might have concluded that the share in question had been taken up by the company had that issue been submitted to' them. The trustees had printed and bound in five books, lettered A, B, C, D, and E, a large number of blank trustees’ certificates, there being in each of the Books A, B, G, and D, 200 certificates signed in blank by the trustees. Book E contained 210 certificates signed by the trustees. All the certificates in Books A, B, C, and B were issued and were afterwards taken.up, some by the company before incorporation and some afterwards, thus making 800 issued and taken up, some of them being sunk in the property of the organization and some surrendered .for renewal certificates.

The plaintiffs alleged — and by their allegations they must be bound — that there were 991 of such trustees’ certificates so taken up by the organization, and this allegation was introduced in evidence by defendants as an admission against interest. There was evidence tending to show that, of the 210 blank certificates in Book E, but 190 appear to have been issued, thus making the total number of trustees’ certificates issued 990. Erom this the jury could reasonably have found, had the issue been submitted, that as but 990 certificates had ever been issued, and as by the admission of the plaintiffs 991 of such certificates had been taken up by the company, the certificate in question was one of these, and therefore could not be outstanding.

The assignments referred to, as well as the various propositions thereunder, are overruled.

Under the fifth and Sixth assignments, which sufficiently raise the point, appellants advance the proposition that:

“The evidence showing without dispute the issuance of the stock to Thomas Green, and it being outstanding on the corporate records in his name, and there being no evidence of any adverse claim to the share since its issuance, and, under the law, the defendant company being a trustee for Thomas Green, its shareholder, and in privity with his title, it was not entitled to assert a mere outstanding transfer as an absolute defense, but only as a basis for protection, to be awarded by the court upon equitable terms by way of requiring an indemnity bond or otherwise.”

We fail to see any merit in this contention. It is true that in certain circumstances the continuance of the relation of shareholder may be presumed when it is shown to have once existed, but this presumption, like any other presumption, may be rebutted by competent evidence, especially in cases where, under the rules and regulations of the company issuing the stock, the stock could be transferred by the owner and the title passed by mere indorsement and delivery. It is also true that a corporation stands in the relation of trustee to the owners of its stock; but this applies to the true owner, and not merely and only to those who from the records of the corporation appear to be stockholders. It is clearly the duty of the corporation as such trustee, we think, when sued by one claiming to be the owner of its stock and entitled to dividends and other rights and privileges of a stockholder, but who is not in fact a stockholder at the time he brings the suit, to defend in favor of the real owner of the stock, whether his identity be known or unknown. Surely it cannot be the law, as contended by appellants, that, because the books fail to show that a transfer had been made by the original shareholder, the corporation, although satisfied that the original owner had parted with the title to his stock, cannot defend in favor of the true owner, whoever he may be, but may prove an outstanding title only as a basis for protection to be awarded by the court by way of requiring an indemnity bond. None of the authorities cited by appellants sustain their contention. The assignment is overruled.

The appellants complain in the seventh assignment that the court erred in submitting to thé jury the special issue:

“Was Thomas Green the owner of trustees’ certificate E — 70 at the time of his death in 1883? If you so believe from a preponderance of all the evidence, you will answer, ‘Yes’; otherwise you will answer, ‘No. ’ ”

The gravamen of the complaint is that the court by this charge (a) placed the burden of proof on the plaintiffs to show that Thomas Green owned the stock at the time of his death, and (b) that the jury could not have interpreted the charge as meaning anything other than that the burden rested upon the plaintiffs to prove affirmatively by a preponderance of the evidence that the stock had not been transferred or surrendered by Thomas Green.

We overrule these contentions.. Clearly, the charge did not place the burden of proof upon either party, but required the jury to ascertain the fact inquired about from the preponderance of all the testimony. It is inconceivable that the jury could have construed the charge to mean that the burden rested upon the plaintiffs to affirmatively prove by a preponderance of the evidence that the stock had not been transferred or surrendered by Green. The assignment is' overruled.

All other assignments of error urged by appellants present different phases of the questions hereinbefore discussed, and are sufficiently disposed of by what has been said above. We have given careful consideration to each of them and have concluded that none of them points out reversible error, and they are severally overruled.

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

Affirmed.
      tfteoFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McMICHAEL.
    (No. 1666.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 16, 1916.
    On Motion for Rehearing, Nov. 31, 1916.)
    1. Appeal and Error «=>1062(1) — Harmless Error.
    The submission of issues as to which there was no dispute in the evidence was not prejudicial where any finding.upon them against the undisputed evidence would have prejudiced ap-pellee alone.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. «=> 1062(1).]
    2. Carriers «=>321(5) — Passengers — Platform Accident.
    In action for injuries from being struck by a truck on an unlighted station platform, it was not error to submit question of the failure of the railway to have the platform properly lighted, although plaintiff testified that his injury was the result of the truck being shoved against him, causing him to fall against the engine, since it did not follow that his situation was unaffected by the absence of light.
    [Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1329; Dec. Dig. <S=>321(5).]
    3. Trial «=>260(8) — Charge Covered by One Given.
    It was not error to refuse a requested charge that unless it was found the truck was moved or shoved against plaintiff causing him to be struck by the engine, verdict should be for defendant, where another charge was given for defendant that if it was found that the position of the truck could and would have been observed by a person using ordinary care and prudence when using the platform, and that such truck was stationary and not pushed or moved against plaintiff, verdict should be for defendant, for the latter charge gave defendant whatever benefit there was in confining plaintiff’s-recovery to an injury from pushing or shoving the truck.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 657; Dec. Dig. «=>260(8).]
    4. Carriers «=>348(3) — Passengers — Platform Accident — Instructions.
    It was not error to refuse defendant’s requested charge to find for defendant if plaintiff walked between the truck and the track, and a person of ordinary care under similar circumstances would have walked between the truck and the depo't; there being evidence that passengers took both routes, and it not appearing the route taken by plaintiff was a dangerous one, for the fact that a reasonably. prudent person would have taken the other route did not necessarily signify that it was imprudent to take the .other route, although such was the assumption in the requested charge.
    [Ed. Note — For Qther cases, see Carriers, Cent. Dig. §§ 1403, 1405; Dec. Dig. ⅞=>348(3).]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Action by R. G. McMichael against the St. Louis Southwestern Railway Company, of Texas. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Glass, Estes, King & Burford, of Texar-kana, and E. B. Perkins and Dan Upthegrove, both of Dallas, for appellant. Mahaffey & Keeney, of Texarkana, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for $5,000 as damages for personal injuries received while walking along appellant’s platform at Naples, Tex. The appellee was there for the purpose of taking passage on appellant’s north-bound train, and at the time of the injury was going to the train. In walking from the waiting room to the train he was compelled to pass by a baggage truck standing, as testified to by some of the witnesses, obliquely across the platform. According to some of the evidence, the platform at that point was 18 feet wide, and the truck was 10 feet long and 4 feet high. The appellee testified that as the train came up to the station he and other passengers went out for the purpose of going aboard; that the platform was not lighted, and the only illumination they had was from the headlight of the engine; that the truck was standing between him and the point where the passenger coach was to be stopped ; that as he passed around between this truck and track on which the engine was approaching, some one, whom he could not identify, pushed or moved the truck against him, causing him to fall over against the engine and receive the injuries for which he sued. He seemed to be positive that his fall was due to some one moving the truck; whether that person was an employé of the railway company, or some passenger passing by the truck, he was unable to say. He is supported in his testimony by one other witness. This version, however, was disputed by other witnesses, who testified for the appellant, and who say that the truck was not moved, but that the ap-pellee apparently walked too close to the engine, which was still moving, and fell over against it. The evidence appears to be undisputed that the platform was not lighted, and that the truck was in the position referred to in the appellee’s testimony, except that witnesses differ as to whether it was across the platform or parallel with it. The evidence further shows that there was a space between the truck and the wall of the depot building, through which many of the passengers passed in going to th:e train. Some of the witnesses say that all of the passengers took that route except the appel-lee. In his petition the appellee alleged, in substance, that the appellant was guilty of negligence in failing to have proper lights provided and in failing to have its platform in a reasonably safe condition for passengers desiring to- use it upon that occasion. The charge of the court was lengthy and submitted all the issues made by the pleadings.

The first group of assigned errors complain of several paragraphs of the charge, in which the principal issues of fact submitted^ as being unintelligible and confusing, and further upon the ground that it submitted uncontroverted issues to the jury, as well as other issues which there was no evidence to support. It would serve no useful purpose to here quote the portions of the charge criticized. We think it sufficient to say that we have fully considered the objections, but are unable to find any good reason for sustaining them. It is true that issues were submitted' about which there appeared to be no dispute in the evidence, but the error, if any, in that particular could not harmfully affect the appellant; for any finding upon them against the undisputed evidence would have operated to the injury of the appellee alone.

It is also contended that the court should not have submitted to the jury the failure of the appellant to have the platform properly lighted, because, according to the appellee’s own testimony, this failure did not contribute to his injury. While the appellee does testify that his injury was the result of the truck being shoved against him, it does not necessarily follow that his situation was wholly unaffected by the absence of sufficient light It cannot therefore be said as a matter of law that the darkness did not materially add unfavorable conditions to his surroundings, which may have affected the results.

The following special charge was requested and refused:

“You are instructed that unless you find from a preponderance of the .evidence that the truck was moved or shoved against the plaintiff, and that he was caused thereby to be struck by the engine, your verdict should he for the defendant.”

At the request of the appellant’s counsel the court gave the following special charge, which bears upon that issue:

“You are instructed that if from the testimony you believe that the position of the truck could and would have been observed by a person using ordinary care and prudence when using the platform, and that such truck was stationary and was not pushed or moved against plaintiff, then your verdict should be for the defendant.”

Appellant was thus given whatever benefit there was in confining the appellee’s recovery to an injury sustained from a pushing or shoving of the truck, and there Was no material error in refusing the charge first quoted.

Appellant also requested the following special charge, which was refused:

“You are instructed that if from the testimony you believe that the plaintiff walked from the waiting room around the east end of the truck and between the truck and the track, and that a person of ordinary care and prudence under similar circumstances would have walked between the truck and the depot, then your verdict should be for the defendant.”

As previously stated, the testimony showed that there were two routes which the passengers going from the waiting room to the train could travel in passing the truck — one between the truck and the depot building, and the other between the truck and the track. It was also shown that there was more space between the truck and the building than at the other end. There was evidence tending to show that passengers took both routes; while some of the witnesses testified that the appellee was the only passenger who went between the truck and the track. If the appellant desired to have the jury pass upon the prudence of the appellee in taking the route he did, a proper charge presenting that issue should have been requested. The fact that a reasonably prudent person would have taken the route between the truck and the depot building does not necessarily signify that it was imprudent to take the other route; yet such was the assumption embraced in the requested charge. Moreover, it cannot be said that the evidence was such as to justify a jury in finding that the route taken by the appellee was a dangerous one. The only thing which could have rendered it so was the insufficiency of the space for safe passage between the truck and the track; and the evidence is not such as to warrant a conclusion that this was insufficient.

There are other assignments of-error, presenting different questions, all of which have been carefully considered by us and are overruled.

It is finally contended that the verdict was excessive. The facts do not warrant us in so holding. Considering the injuries received by the appellee, we think the verdict a moderate one.

The judgment of the district court is therefore affirmed.

On Motion for Rehearing.

In its motion for a rehearing the appellant calls attention to a finding of fact to the effect that the evidence was undisputed that the platform of the railway company was not lighted on the occasion of the injury complained of. Upon further investigation we find that the testimony upon that issue was conflicting. The fact, however, cannot materially affect the disposition of the case.

It is also contended that we are in error in holding that the special charge given at the request of the appellant justified the refusal of one made the basis of another assignment of error. It is contended that in the charge given the court required the jury to believe that the conditions were such that a person of ordinary care and prudence when using the platform could and would have observed the truck, before they could find for defendant if the truck was not moved. The appellee testified unequivocally that he did see the truck, and that his injury was the result of the truck being moved. With such evidence the issue regarding the discovery of the truck was practically eliminated, and the only controverted issue embraced in the charge given was that concerning the movement of the truck. We adhere to our former conclusion that the charge refused was a practical reiteration of the issue already submitted.

The motion is overruled.
      <⅞=>1⅛ other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    WALTON et al. v. WALTON.
    (No. 7254.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1916.)
    1. Marriage ⅞=13 — Oommon-Law Marriage —■Validity.
    The validity of a common-law. marriage is not an open question in Texas.
    [Ed.. Note. — For other cases, see Marriage, Cent. Dig. § 4; £>ec. Dig. «= 13.]
    2. Marriage «=11 — Common-Law Marriage-Validity.
    If deceased and one party entered into a valid common-law marriage, he was never the husband of another woman, though they went through the valid legal form of statutory marriage.
    _ [Ed. _ Note. — For other cases,_ see Marriage, Cent. Dig. § SO ; Dec. Dig. «=Tl.]
    8. Witnesses «=132 —.Transactions with Decedent — “Action by or Against Executor” — Proceedings bob Appointment.
    In a contested proceeding for appointment of an administrator, an alleged common-law wife of deceased could testify what the deceased said in publishing their marriage; the proceeding not being one by or against an executor or administrator wherein he could personally be made liable under Rev. St. 1911, art. 3690, prohibiting parties from testifying to transactions with or statements by the intestate in such actions.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. «=132.
    For other definitions, see Words and Phrases, First and Second Series, Action.]
    4. Appeal and Error «=662(3) — Scope of Review — Preservation of Exceptions.
    The mere fact that the court qualified a bill of exceptions to exclusion of testimony by stating that it did not appear what the witness would have testified does not prevent consideration of the ruling on appeal; the requirement that it be shown what the witness would have testified extending only to the bill of exceptions, and not to the showing made at the time the exceptions were taken.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2852; Dee. Dig. «=662(3).]
    5. Marriage «=52 — Common-Law Marriage — Evidence—Instructions.
    Where, in a proceeding for appointment of an administrator, evidence of a common-law marriage showed the fact of marriage, but that the deceased lived apart from his wife for a long period, an instruction should have been given that to constitute a valid common-law. marriage it is not necessary that the parties live together for any specified time.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 91; Dec. Dig. «=52.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Application by Marie Estelle Walton to be appointed administratrix of the estate of Norton A. Walton, deceased, contested by Nora Walton and another. Judgment for applicant, and contestants appeal.
    Reversed and remanded.
    Terry, Oavin & Mills, A. H. Culwell, and Jno. G. Gregg, all of Galveston, for appellants. Marsene Johnson, Elmo Johnson, Roy Johnson, and Marsene Johnson, Jr., all of Galveston, for appellee.
   McMEANS, J.

Marie Estelle Walton, claiming to- have been the wife of Norton A. Walton, deceased, filed in the county court of Galveston county her application to be appointed administratrix of the estate of the deceased. Nora Walton, also claiming to have been the wife of said Norton A. Walton, contested said application, alleging that she was the wife of the deceased, and prayed that she be appointed administratrix. In this contest she was joined by the Gulf, Colorado & Santa Fé Railway Company. A trial in the county court, sitting in probate, resulted in a judgment or decree appointing Marie Estelle Walton as administratrix. From this judgment the contestants appealed to the district court of Galveston county; where, upon a trial de novo before a jury, a judgment was entered upon the verdict of a jury in favor of the applicant, from which judgment the contestants have appealed to this court.

On the trial in the district court Nora Walton sought to prove the marriage as at common law with the deceased, Norton A. Walton, at a time antedating his statutory marriage with the applicant, Marie Estelle Walton, and thus to establish her right as wife to be appointed administratrix. While she was upon the stand as a witness in her own behalf she was asked by her counsel the fpllowing questions:

“Please state whether or not you were introduced in society by Mr. Walton [the deceased], and, if so, how you were so introduced?”
“Please say whether or not he [the deceased] held you out to the public at all times as his wife?”
“Please state whether or not an agreement had been entered into between you and Mr- Walton to live together as husband and wife, and, if so, what was the agreement?”
“Say whether or not you had an agreement with Mr. Walton to live with him as his wife and he live with you as your husband, and, if so, was the agreement kept, and did you so Uve?”

Other questions of similar nature were asked the. witness, but the foregoing will suffice to show their nature and importance as bearing upon the main question in issue.

To each of the questions propounded counsel for the applicant, Marie Estelle Walton, objected upon the ground that the matter thus sought to be elicited involved a transaction with a deceased person, and that, it being an administration proceeding, the contestant could not testify thereto under our statutes. Article 3690, Revised Statutes of 1911. The objection was sustained by the court, and the witness was not permitted to answer. It is shown in the bills of exception taken to this action of the court that, had the witness been permitted to answer the questions, she would have testified to the effect that the deceased, Walton, had introduced her in society as his wife, and that he had held her out to the public at all times since the agreement to live together as husband and wife was made as Ms wife, tliat at the time and just prior to the time she began living with the deceased they entered into an agreement to live together as husband and wife and to consider between themselves that said relation existed, and that, in pursuance of said agreement so entered into, they did live together as husband and wife until the deceased left Ft. Madison in company with the applicant, Marie Estelle Walton.

The materiality of this testimony and its importance to contestants upon the issues involved are apparent. The validity of a common-law marriage is not an open question in this state. If, then, it be true that Nora Walton and the deceased were husband and wife by a common-law marriage, then the applicant, Marie Estelle Walton, was never the wife of the deceased, even though they subsequently went through the form of a statutory marriage. If she had never been legally married to him, then she had no right as a wife to administer upon his estate, but Nora Walton, if a common-law wife, had a preferred right.

Article 3690, Revised Statutes of 1911 (old articles 2302 and 2248), provides:

“In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement, by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

Clearly, we think, the proceeding for the appointment of an administrator is not an action by or against executors, administrators, or guardians in which judgment may be rendered against them as such, nor is it an action by or against the heirs or legal ’fep-resentatives of a decedent. It is a contest between certain parties for the right to administer upon an estate, and whatever judgment might be rendered in the proceeding would not be for or against either party as executor, administrator, guardian, heir, or legal representative, although such trust relation might be created by the decree rendered. In so far as the witness Nora Walton is concerned, any right which she had to administer upon the estate grows out of her relation to the deceased as “surviving wife,” and not as an heir. The question under discussion was before the Dallas Court of Civil Appeals in Ingersol v. McWillie, 9 Tex. Civ. App. 543, 30 S. W. 56 (writ of error refused), and there decided adversely to the contention of the appellee here, the applicant in the court below; and what we have said above is largely taken from that decision. We quote further from the case referred to:

“It has been held by our Supreme Court that the terms of the statute will not be extended so as to embrace those not specially mentioned therein. In the case of Newton v. Newton, 77 Tex. 508, 14 S. W. 157, it was held by Judge Gaines that the provisions of article 2248 could not be extended * * * to embrace legatees or devisees. The court says: ‘This court has held that the exceptions could not be extended by implication to a class of persons not named, although the reason for embracing them was equally as strong as those which existed for including the persons expressly designated. Roberts v. Yarboro, 41 Tex. 451; Markham v. Carothers, 47 Tex. 25.’ ”

Wootters v. Hale, 83 Tex. 563, 19 S. W. 134, is a case where a son after his father’s death was sued for land given him by his father by parol contract followed by possession and valuable improvements; and it was held that defendant was a competent witness to prove the transaction, as he did not claim the land as heir or legal representative.

Our conclusions are not in conflict with the decisions of our Supreme Court in Edelstein v. Brown, 100 Tex. 403, 100 S. W. 129, 123 Am. St. Rep. 816, and Berger v. Kirby, 105 Tex. 611, 153 S. W. 1130, 51 L. R. A. (N. S.) 182, as we understand them. In the case first referred to the suit was brought by the children and heirs of Mrs. Edelstein, whom they claimed to have been the wife of the defendant, Edelstein, at the time of her death. The object was to recover her interest in the community property. The gist of the controversy was the common-law marriage claimed by plaintiffs to have been contracted between Edelstein and their mother; for upon that depended the rights of the plaintiff. Edelstein, being upon the stand, testified as a witness in his own behalf, over the objection of the plaintiffs that he was not competent to so testify, that he never was married to the mother of plaintiffs, and that he and she never agreed in any way or form to become husband and wife, and that he never married her; that it was not understood between them at any time prior to her death that she was his wife, or he her husband. The Supreme Court held that Edel-stein was not competent under the terms of the statute to so testify. Clearly this was correct; for the suit was for the recovery of property by the heirs of the mother, and any judgment that would or could have been rendered therein would have been rendered for or against them as such heirs. In the Berger Case the plaintiff, Mary Berger, brought suit against the administrator of A. Berger, deceased, to recover property claimed by the plaintiff as the common-law wife of the deceased, and it was held that she was not a competent witness to prove the transaction between deceased and herself in making a contract of marriage. Obviously any judgment rendered in the case would have been for or against Berger’s legal representative, the administrator.

The court in approving the bill of exception to its action in sustaining objections to the questions hereinbefore set out added the qualification, in effect, that it was not made to appear what the answers of the witness to the questions propounded would have been. Appellant contends that the assignment based upon such a bill of exception cannot be considered. We take it that the court meant by the qualification that it was not stated at the time of the ruling and the taking of the exception what the answers of the witness would be if she be permitted to answer. It clearly appears in the bill of exception approved by the court what the witness would have testified in answer to the questions if she had been permitted, and it is not material in a case like this, in which the answer expected and its materialty is apparent from the nature of the question and the issue involved, whether such information was imparted to the trial court at the time the exception was made. Such statements are required to be made in the bill of exceptions as information for the appellate courts in order to enable them to determine whether the excluded testimony was or was not material, and not to aid the trial court to pass upon the competency or admissibility of the evidence objected to. Besides this, the objection urged being that the witness was not competent to testify, and this objection being sustained against her right to testify at all, it could not have made any difference in the trial court’s ruling what her answers would have been; for, if she was not competent, the knowledge of the court of what her answers would be could not have removed her. incompetency on affected the ruling of the court. .

The first, second, third', and fourth assignments raising the point discussed must be. sustained.

The court instructed the jury as follows:

“The court instructs you that a common-law marriage is legal and valid, and neither the issuance of license or ministerial or official marriage ceremony is necessary to constitute a lawful and binding common-law marriage. All that is necessary to constitute such a marriage is that, if the parties mutually agree and consent together to become husband and wife and thereafter carry out the agreement and live and cohabit together as husband and wife, the marriage would be valid.”

The contestant at a proper time requested the court to give the following special instruction:

“You are instructed that, to constitute a valid common-law marriage, it is not necessary that the parties live together for any specified time, nor that they live together continuously for any specified time.”

The sixth assignment is based upon the refusal of the court to give this special instruction.

The contestant Nora Walton testified to facts which, if true, were sufficient to establish a common-law marriage between herself and Norton A. Walton, the deceased. The testimony shows, however, that they did not thereafter live together continuously, but that during much of the time between the date of the alleged marriage and the time the deceased, Walton, left Ft. Madison in company with applicant, Marie Estelle Walton, he was away from the contestant and travel-ling in or working in various states and places far distant from the contestant. Indeed, the evidence indicates that between said dates he was living away from contestant a greater portion of the time. In view of this fact, we think that the requested charge should have been given in order to clarify the issue raised by the evidence, and in order to keei3 the jury from falling into the mistaken belief that the court’s charge meant that to constitute a valid common-law marriage there must not only be a mutual agreement, but that the agreement should after-wards be carried out by their continuously living and cohabiting together as husband and wife. The assignment is sustained.

We have examined all other assignments of error urged by appellants in their briefs, but, with the exception of those hereinbefore discussed, no reversible error is, in our opinion, pointed out in any of them.

For the errors indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      «=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SWEARINGEN, J.

text:
    CITY OF LAREDO v. SALINAS.
    (No. 5736.)
    (Court of Civil Appeals of Texas.
    Dec. 13, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Landlord and Tenant <®=»63(1) — Estop-pel to Dispute Landlord’s Title.
    The rule that a tenant cannot dispute his landlord’s title applies where the tenant seeks to acquire title by virtue of the possession obtained by the lease, but not where he acquires an outstanding title, under which he claims title to the land superior to the landlord’s.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 160, 163, 165-167, 172-174; Dee. Dig. <§=>63(1).]
    2. Constitutional Law <@=>171 — Vendor and Purchaser <§=>248 — Statutory Provisions —Vested Rights — Obligation op Contracts.
    Rev. St. arts. 5694, 5695, prescribing when the right to recover realty under a vendor’s lien shall be barred, and how contracts of extension of the maturity of the debt shall be made and construed, are not violative of Const, art. 1, § 16,'providing that no bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shall be made, since the articles are acts of limitation, prescribing the time .in which to seek the remedy,' and do not take away vested rights, or impair the obligations of a contract.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 506; Dec. Dig. <@=>171; Vendor and Purchaser, Cent. Dig. § 617; Dee. Dig. <@=>248.]
    3. Municipal Corporations <§=>225(6) — Forfeiture oe Land Sold by City — Ordinance.
    Where a city’s ordinance, authorizing the sale of its lands, provided that a forfeiture thereof should be made by the city secretary’s indorsing on the notes “Land forfeited,” and making an entry to that effect on the “account of sales” kept by him, where the indorsement was not made on the notes, and no entry was made on the account by the city secretary, there was no forfeiture of lands to the city for default in payment of interest.
    [Bid. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 641; Dec. Dig. 225(6).]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Suit by the City of Laredo against Antonio Salinas. From a judgment for defendant, plaintiff appeals.
    Judgment affirmed.
    A. Winslow, of Laredo, for appellant. T. C. Mann, John L. Dannelley, and C. M. Henry, all of Laredo, for appellee.
   SWEARINGEN, J.

Appellant filed its original petition, alleging a “trespass to try title” suit against appellee to recover two described lots of land in the city of Laredo, to which appellee answered by a plea of “not guilty.” Appellant thereupon filed its first supplemental petition, in which it was alleged that the title in appellee had been forfeited by reason of default in the payment of interest accrued on the purchase-money notes received by appellant for the land, and in the alternative alleged that the vendor’s lien notes had never been paid, and asked for judgment on the notes and foreclosure of the vendor’s lien, and still further in the alternative alleged that appellant owned the superior title to the land, and asked for judgment rescinding the sale and for recovery of the land. To these allegations appellee answered that the land had never been forfeited; that the suit to foreclose the vendor’s lien was barred by the statute of limitation, and that the suit to rescind was also barred by the statute of limitation. The case was tried by the court without a jury. Judgment was rendered in favor of appellee.

The rule of law, alleged by appellant, in his first assignment, to have been violated by the trial court in sustaining an exception to the petition, is that a tenant cannot dispute his landlord’s title. This is the rule where the tenant seeks to acquire title by virtue of the possession obtained by the lease. Tyler v. Davis, 61 Tex. 674. But this is not the rule where the tenant acquires an outstanding title, under which he claims title to the land superior to his landlord. McKie v. Anderson, 78 Tex. 207, 14 S. W. 576; Dodge v. Phelan, 2 Tex. Civ. App. 441, 21 S. W. 309. The first assignment is overruled.

The second, third, fourth, and fifth assignments assert that the judgment was wrong, because the uncontroverted evidence showed; (1) That the land had been forfeited to appellant by virtue of a valid ordinance; (2) that the superior title was in appellant, because a vendor’s lien had been expressly retained in the deed from appellant, which deed is one of the mesne conveyances under which appellee claims title, and the lien had never been extinguished by payment of the purchase price. The evidence, shows the notes, secured by the vendor’s lien, matured April 1, 1909. The right to sue to recover the amount of the notes themselves and to foreclose the lien was barred, under the facts of this case, April 2, 1913. R. C. St. § 5688. The right to sue to enforce the superior title in the vendor, under the facts of this case, was barred April 2, 1913. R. C. St. § 5694. Provided, however, the city of Laredo had a reasonable time after the statute (section 5694) became effective in which to file suit. Link v. City of Houston, 94 Tex. 378, 59 S. W. 566, 60 S. W. 664. The subsequent article of the statute (5694) fixed the reasonable time at 12 months after the act became effective. The act became effective June 30, 1913. The 12 months’ time after June 30, 1913, added by the act to the date of maturity of the note, makes June 30. 1914, the last day during which the city of Laredo could file suit to rescind the sale and recover the land by reason of its superior title. The suit was actually filed June 16, 1915, on which day the right to maintain the action was barred. Articles 5694 and 5695 do not violate the Texas Constitution. Article 1, § 16. These articles are acts of limitation, which prescribe the time in which to seek the remedy, and they do not take away vested rights or impair obligation of contract. Parker v. Buckner, 67 Tex. 20, 2 S. W. 746; Mellinger v. City of Houston, 68 Tex. 38, 3 S. W. 249; City of Houston v. Stewart, 40 Tex. Civ. App. 499, 90 S. W. 49; Ollivier v. Houston, 93 Tex. 201, 54 S. W. 940, 943. From the foregoing it is apparent that the suit to foreclose the vendor’s lien was barred when brought, and the suit to recover the land under claim of superior title was also barred.

The only other question presented in the assignments is the proposition that the lands in this suit became forfeited to the appellant because of default in the payment of the interest. For this appellant relies upon the fourth section of the ordinance authorizing the sale of the lands to the following effect:

“Section 4th. Every purchaser on time shall give his promissory note for the balance of the purchase price, which note shall be made payable to the city of Laredo, according to the terms of the purchase, secured by a vendor’s lien, expressly reserved therein, and the note shall provide that in default of payment of any interest due thereon, the said purchaser shall thereby forfeit all rights to the land, and in the event of such default the city secretary shall indorse on said note ‘Land forfeited’ and shall make an entry to that effect on the account of sales kept by him and thereupon" the said lands shall be forfeited to the city, without the necessity of re-entry or judicial ascertainment, and the same may thereafter be resold by the city, in the same manner as if no sale had been made.”

And also the following recited in the vendor’s lien notes:

“And in case of nonpayment of the principal or any interest accrued at the time same is payable, then the owner or holder hereof may have the said lands forfeited according to the ordinance in such case provided.”

It will be observed that tbis ordinance is very similar to article 5423, regulating forfeiture on account of default in tbe payment of interest on notes given for purchase of lands from the state, and particularly in this that the forfeiture does not accrue unless the city secretary shall indorse on said note “Land forfeited,” and in addition to such in-dorsement shall make an entry to that effect on the “account of sales” kept by him. The evidence shows that the indorsement of “Land forfeited” was not made on the notes by the city secretary, and further shows that no entry to that effect was made by the city secretary on the “account sales.” There was therefore no forfeiture. Chief Justice Phillips construes article 5423 thus:

“Both the indorsement upon the obligation of the purchaser and the entry on his account are required by the statute only as authentic evidence of the forfeiture. But, while this is true, the statute is clear in its declaration that a forfeiture does not accrue until it is thus evidenced.” Chambers v. Robison (Sup.) 179 S. W. 123.

All of the assignments are overruled, and the judgment of the trial court is affirmed.
      i5=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    WESTERN UNION TELEGRAPH CO. v. MARTIN.
    (No. 7260.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 13, 1916.
    Rehearing Denied Jan. 4, 1917.)
    1. Telegraphs and Telephones <S=>65(2)— Delay in Delivery — Allegations of Fact.
    Allegations in a petition for damages caused by delay in the transmission of money by telegraph that the money was more than sufficient to pay the expenses of having the body of plaintiff’s husband transported to her domicile, that if the money had been received by the addressee at the time the telegraph company agreed to deliver it, the addressee would have had the body of plaintiff’s husband shipped to her for burial, and that by reason of the failure to transmit the money within the time stipulated, plaintiff was prevented from having the body of her husband sent to her for burial, were allegations of fact, and sufficiently charged that the negligence of defendant was the proximate cause of plaintiff’s mental anguish, resulting from failure to have the body shipped to her.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent Dig. § 55; Dec. Dig. 65(2).]
    2. Telegraphs and Telephones <§=>65(1)— Delay in Delivery — Petition—Effect of Delivery.
    A petition for delay in delivering money transmitted by telegraph which prevented the body of plaintiff’s husband being shipped to her need not allege what particular arrangements could ’ have been made to procure the shipment of the body, or when or by whom or with whom such arrangements could have been made.
    [E'd. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 54; Dec. Dig. ⅞ — > 65(1).]
    3. Telegraphs and Telephones €⅛>66(4)— Sufficiency of Evidence — Cause of Loss.
    ■In an action for relay in delivering money transmitted by telegraph, evidence held sufficient to warrant the jury in finding that the delay in delivering the money was the proximate cause of the failure to have the body of plaintiff’s husband shipped to her for burial.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent: Dig. § 63; Dec. Dig. <S=^>66(4).]
    4. Commerce <⅞=380 — Interstate Commerce-Telegram — Mental Anguish.
    Permitting the recovery of damages for mental anguish for failure to deliver an interstate telegram is not an arbitrary burden on interstate commerce, or an unreasonable interference with such commerce.
    [Ed. Note. — For other cases, see Commerce, Dec. Dig. <§=>80.]
    5. Evidence ®=»80(1) — Presumption — Foreign Laws.
    In an action for mental suffering caused by delay in the delivery of an interstate telegram, it will be presumed that the law of the state in which the message was to be delivered was the same as the law of the forum.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 101; Dec. Dig. <S=»80(1).]
    6. Commerce <§=^80 — Interstate Commerce-Recovery for Mental Anguish — Constitutionality.
    The law, permitting recovery for mental anguish caused by delay in delivering an interstate telegram, does not violate the interstate commerce clause of the federal Constitution (Const. U. S. art. 1, § 8, cl. 3).
    [Ed. Note. — For other cases, see Commerce, Dec. Dig. <⅜^80.]
    Appeal from District Court, Harris County.
    Action by Mrs. E. P. Martin against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals,
    Affirmed.
    Hume & Hume, of Houston, for appellant. Cooper & Merrill, of Houston, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellee against appellant to recover damages for mental anguish alleged to have been the result of the negligent failure of appellant to promptly deliver money which it undertook to deliver for appellee in Denver, Colo., and thereby depriving appellee of the comfort and privilege of having the body of her deceased husband shipped from Denver to Houston, Tex., for burial.

The petition alleges that plaintiff’s husband died at Denver on the afternoon of January 17, 1915, at the home of his mother, Mrs. C. R. Martin, plaintiff at that time being at her home in Houston, Tex., and that upon receipt of notice of her husband’s death she at once telegraphed his mother, requesting her to have his body shipped to Houston for burial; that thereafter, on the morning of the 19th day of January, 1915, plaintiff received from the said Mrs. C. R. Martin a telegram by which plaintiff was advised that the said Mrs. C. R. Martin was financially unable to advance the funds necessary to ship the body of the said E. P. Martin from Denver to Houston for burial, .and that unless advised to the contrary by plaintiff, the body of the said E. P. Martin would be buried at Denver, Colo., at 2:30 o’clock p. m. on the 19th day of January, 1915; that plaintiff,¡ after the receipt of said telegram on the morning of January 19th, delivered $100 to defendant at Houston, Tex., -which was more than sufficient to pay the charges for transporting the body of plaintiff's husband from Denver to Houston, and that the agent of defendant who received said money, after being fully informed of all the facts above alleged and the purpose for which it .was to be used, agreed and undertook to deliver same with an accompanying telegram sent by plaintiff to Mrs. C. R. Martin at Denver, Colo., before 1:30 p. m. on said date; that said telegram, which was received by defendant for transmission at the time it received the money, repeated plaintiff’s request to have the body of her husband shipped to Houston, and notified Mrs. C. R. Martin that plaintiff had wired her $100; “that said telegram and money were in fact transmitted" to Denver, Colo., and were in fact delivered to the said Mrs. C. R. Martin, but that the same were not so transmitted and delivered within the time stipulated by said agreement, nor within a reasonable time; that the same were not so delivered to the said Mrs. C. R.. Martin until after she had returned from the funeral and burial of the said E. P. Martin at about 5:30 o’clock p. m. on said 19th day of January, 1915; that the said Mrs. C. R. Martin was the mother of the deceased, E. P. Martin, and she had charge of the funeral arrangements of the said E. P. Martin, and that had said telegram and money been so delivered to her prior to the burial of the said E. P. Martin in Denver, Colo., which occurred at about 2:30 o’clock on said 19th day of January, 1915, she could and would have arranged for and had-the body of said E. P. Martin, deceased, shipped to Houston, Tex., for burial, but that on account of the failure of defendant company to so transmit such message or deliver said money to the said Mrs. C. R. Martin within the time stipulated by the agreement hereinbefore referred to, or within a reasonable time, the same was not received by the said Mrs. C. R. Martin, prior to the hour set for the burial of the said E. P. Martin, and the body of the said E. P. Martin was in fact buried in the city of Denver, Colo.; that by reason of the negligence of the defendant, its agents and servants, and its failure to deliver said telegram within the time stipulated by said agreement and within a reasonable time, plaintiff was prevented from having the body of her deceased husband transported to the city of Houston, the home of the plaintiff and the home of the said E. P. Martin prior to his death, for burial; that she was prevented from being present at the burial of her said husband and of seeing that his remains were properly eared for, and that by reason and in consequence thereof she has suffered great disappointment, grief, and mental pain and anguish, to her damage in the sum of $2,900.” The defendant’s answer contains a general demurrer and numerous special exceptions, the nature of which need not be here stated. It also contains a general denial and several special pleas, which it is unnecessary to set out. The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $1,500. The evidence sustains all of the material allegations of the plaintiff’s petition.

We cannot agree with appellant’s contention under its first assignment of error that plaintiff’s petition fails to show that the" delay in the transmission of the money and .telegram was the proximate cause of the failure to have the body of plaintiff’s husband shipped from Denver to Houston for burial, and that because of this defect in the petition the trial judge erred in not sustaining defendant’s general demurrer thereto. The petition, which we have before set out, after alleging that the $100 was more than sufficient to pay the expenses of having the body of the deceased transported to Houston, expressly alleges that if the money and telegram had been received by Mrs. C. R. Martin at Denver at the time appellant agreed to deliver it at that place, Mrs. Martin could and would have' arranged for and had the body of plaintiff’s deceased husband shipped to Houston, for burial, and that by reason of the failure of defendant to transmit the telegram and money within the time stipulated in its agreement, plaintiff was prevented from having the body of her husband sent to Houston for burial. These are allegations of facts, and clearly charge that the negligence of defendant complained of in the petition was the proximate cause of the injury for which recovery is sought.

The second and third assignments of error complain of the refusal of the trial court to sustain special exceptions presented by the defendant to the petition on the grounds that the allegations “that Mrs. C. R, Martin could and would have arranged for and had the body shipped to Houston for burial are too vague, indefinite, and speculative, and are mere conclusions, * * * and it is not shown what particular, arrangements could and would have been made had the money or notice thereof been received at Denver on January 19th, to procure shipment of the remains from Denver to Houston, or to procure burial, at Houston instead of at Denver, and, it not being shown in what particular manner, by what particular means, or how, or when, or by' whom, or with whom, such arrangements could or would have been made with respect to the shipment of the body and burial at Houston and the effectuation of burial at Houston.”

These assignments are without merit. It would have given defendant no information of which it was not already possessed in common with the general public to have alleged .in the petition that there are several line^ of. railroads operating trains between Denver -and Houston, and that these trains transport bodies of deceased persons, and it could not possibly have been of any advantage to defendant to have been informed by the petition on what railroad the body would have been shipped, nor by whom or what character of conveyance it would have been carried to the railroad at Denver. The case of Telegraph Co. v. Mitchell, 91 Tex. 454, 44 S. W. 274, 40 L. R. A. 209, 66 Am. St. Rep. 906, cited by appellant, does not sustain its contention that this petition is insufficient in the respects stated. In that case the petition alleged that if the telegram had been promptly sent, plaintiff could have made special arrangements which “no other person could have effected” by which he would have procured water for his cattle, and thereby prevented the loss and injury for which he sought recovery. The Supreme Court held that a special exception to this petition, on the ground that it did not state what were the special arrangements that plaintiff could have made, should have been sustained. It is, we think, obvious that the reason given for that ruling, which was that defendant was entitled to know what special arrangements it was claimed could have been made in order to be prepared to meet such allegations, does not exist in this case. It is, we think, equally clear that this case should be distinguished from those cases in which the plaintiff sues for damages for being deprived of the privilege of attending the sick bedside or the burial of a relative by reason of delay in the delivery of a telegram. In such cases the telegraph company is entitled to know what means the plaintiff would have taken to reach the place of burial or sickness in order to show, if possible, that he could not, by any practicable route or method of travel, have reached the place in time if there had been no delay in transmission or delivery of the telegram. In this ease the information sought to be elicited by the exceptions could not have been of any assistance to defendant in preparing its defense. It is alleged in the petition that the $100 was more than enough to pay the charges for transporting the body of the deceased from Denver to Houston, and that the body had not been shipped on plaintiff’s first request because of the inability of Mrs. O. R. Martin to procure the money to pay the transportation charges. These facts, coupled with the facts of common knowledge before mentioned, with knowledge of which defendant must be charged, furnished all- the information necessary or proper to enable defendant to meet the allegations of the petition.

Under appropriate assignments of error appellant complains of the refusal of the trial court- to instruct the jury to return a verdict for the defendant, and assails the verdict on the ground that it is not- supported by any evidence. The contention under these assignments is that the evidence is insufficient to authorize or sustain a- verdict against the defendant,- because -it fails to show that the delay of defendant' in delivering the telegram and money was the proximate cause of the failure of plaintiff to procure the shipment of her husband’s body to Houston for burial. We do not think these assignments should be sustained. The evidence shows that on January 17th, before hearing from plaintiff, Mrs. O. R. Martin had the body of deceased taken to the Olinger Mortuary at Denver, and, supposing that plaintiff would desire it shipped to Houston, instructed the undertaker to embalm it. On the night of January 17th, after receiving the telegram informing her of her husband’s death, plaintiff sent Mrs. Martin the following telegram:

“If financially able, ship Ned’s body home.”

On the morning of the 18th, after receipt of this telegram, Mrs. Martin ordered the undertaker to prepare the body for shipment, which was done. At-the time these arrangements were made by Mrs. Martin, she thought she could procure the money necessary to pay for the transportation of the 'body. She knew that her son was a member of the Eagles Lodge, and as such member the lodge was obligated to furnish $100 for his burial expenses, and she expected to get this from the lodge in Denver. She was unable to do this, and was also unable, on the 18th, to obtain money elsewhere in Denver. Finding herself in this condition, on the evening of January 18th she sent plaintiff the following night message: ’

“After making all necessary inquiries, find it impossible to ship Ned’s body to Houston. Unable to raise sufficient funds and are therefore doing the very best we can under the circumstances, and are arranging funeral here at two-thirty Tuesday. If possible get money from Eagles and send us.”

Before receipt of this message plaintiff had received the $100 benefit from the Eagles Lodge at Houston arid sent Mrs. Martin the following telegram:

“Send Ned’s body home. I can stand all expenses.”

Before sending the telegram to plaintiff on the night of the 18th Mrs. Martin had changed her instructions to the undertaker, and arranged to have the burial in Denver. In making these arrangements she told the undertaker about the $100 burial fund to which deceased was entitled, and instructed him not to incur more than $100 expenses in the burial of the deceased. The bill rendered her by-the undertaker after the burial was just $100, and she paid this bill with the money which had been sent her by plaintiff. She testified as follows:

“If I had received such message (referring to the message in controversy) before I left my place of residence to attend the funeral and burial of E. P. Martin, I would have been able to arrange for the shipment of his body from Denver to Houston for burial, and would have done so. I would have so shipped said body if I had -received said message above referred to before I left my place of residence to attend the funeral and burial of E. P. Martin. The only reason it was not shipped was lack of money to pay railroad transportation. If said message had been delivered to me prior to the burial of E. P. Martin, the body of the said E. P. Martin would have been shipped to Houston, Tex., for burial.”

The transportation charges for shipping the body from Denver to Houston were $63. She further testified:

“If I had received the $100 at noon on January 19, 1915, the things that would have been necessary to do in order to have the remains buried in Houston instead of Denver were to cancel the burial arrangements here and get relieved, if possible, from payment for the grave. I would have turned the $100 over to the Olinger Mortuary with instructions to pay the railroad fare on the body and if there was any balance left to credit it on the bill, and I would have been responsible for the balance and would have paid it when I got the money.”

The body was turned over to the undertaker without any agreement as to the payment of his charges. Everything done by the undertaker prior to the time the change in the arrangements providing for burial at Denver was made was without any knowledge of the existence of the $100 burial fund, and presumably upon the credit of Mrs. O. R. Martin, and there is nothing in the record tending to show that he would have refused to have carried out her instructions in regard to the shipment of the body, or that he would or could have held the body until payment of his charges. We think this evidence authorized the jury to find, as they did, that if there had been no delay in the delivery of the $100, the body of the deceased would have been shipped to Houston, and we are not authorized to disturb the verdict upon this issue.

Under the sixteenth and seventeenth assignments of error appellant presents the propositions that to permit the recovery of damages for mental anguish for the failure of a telegraph company to deliver a message sent from this state into another is an unauthorized imposition by the state of “a direct, unreasonable, arbitrary, and unlimited burden and liability upon interstate commerce,” and “an unreasonable interference with and regulation of interstate commerce, * * * all in violation of and conflict with article 1, § 8, subd. 3, of the Constitution of the United States; that to allow plaintiff to recover herein and to hold defendant liable for damages for mere mental anguish herein is and would be, and is an attempt to create, a new, distinct, substantive, and inadmissible right and cause of action to plaintiff and liability upon defendant, unknown to and in derogation of the common law and unauthorized by statute, and to impose upon defendant an unwarranted, unreasonable, arbitrary, and unjust burden, and to impede, interfere with, and regulate interstate commerce in violation of and in conflict with said provision of the Constitution of the United States.” No authority in support of these propositions is. cited, and we think none can be found. There is nothing unjust or arbitrary in holding a person or corporation responsible for mental pain and. suffering which is the result of the negligence of such person or corporation, and which result could have been reasonably anticipated. On the contrary, in our opinion the rule of decisions fixing such liability responds to the demands of justice as well as of sound public policy.

In the absence of evidence to the contrary, it must be presumed that the law of the state of Colorado upon the question of the liability of a telegraph company for mental anguish caused by its failure to deliver a telegram is the same as the law of this state, and we are therefore not required to determine whether upon the facts of this case the law of the forum or that of the jurisdiction in which the breach of the contract occurred should apply. Such being the state of the record, the opinion of the Supreme Court of the United States in the case of Telegraph Company v. Brown, 234 U. S. 542, 34 Sup. Ct. 955, 58 L. Ed. 1457, has no application.

We are relieved from the necessity of discussing at any length the constitutional question presented by the assignments by the well-considered and able opinion of Justice Hodges in the case of Telegraph Co. v. Bailey, 184 S. W. 519, which holds that our law permitting recovery for mental anguish in cases of this kind is not violative of the Constitution of the United States. We are in full accord with the views expressed in that opinion.

We have not deemed it necessary to discuss all of the assignments presented in appellant’s brief, but only those which in our opinion presented the material questions involved in the appeal. All of the assignments have been considered, and none of them, in our opinion, should be sustained. The judgment of the court below is affirmed.

Affirmed.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes