text:
    SIKES v. KELLER.
    (No. 8641.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 12, 1917.
    On Motion for Rehearing June 23, 1917.)
    1. Justices of tiie Peace <&wkey;44(3) — Jueisdiotion — Amount «in Controversy — Determination.
    In a suit for conversion, jurisdiction of the justice court is determined by plaintiff’s allegations as to the value of the property converted and the damage claimed, in the absence of a special plea specifically charging' that it was so alleged for the fraudulent purpose of wrongfully conferring jurisdiction.
    2. Justices of the Peace @=344(8) — Jurisdiction — Amount in Controversy — Conversion.
    Where jurisdiction of justice court is limited to suits involving amount not exceeding $200, it cannot be defeated by adding interest to alleged value of converted property, thereby extending plaintiff’s claim beyond $200, where no interest is asked for or adjudged and cannot be, because conversion is alleged to have taken place on day suit instituted.
    8. Justices of the Peace @=>59 — Pleading— Construction — Jurisdiction.
    If plaintiff’s allegations are susceptible of construction which will support the jurisdiction of the justice court rendering judgment, that construction will be adopted.
    4. Evidence @=>106(1) — Relevancy — Character.
    In an action charging two defendants jointly with conversion and embezzlement, judgment for plaintiff will be reversed, where evidence is admitted as to general reputation, for honesty and fair dealing, of defendant not appealing, but whose testimony is material, since general character of defendant is not in issue in such an action unless he himself puts it in issue by an attempt to prove his good character.
    On Motion for Rehearing.

      8. Appeal and Error @=3880(2) — Review-Party Not Appealing.
    Where, in an action for conversion of personal property against two defendants, judgment is rendered against both, court' will not, on appeal, determine whether there was error as to defendant not appealing in submitting a special issue to the jury.
    Appeal from Wise County Court; J. W. Walker, Judge.
    Action by G. M. ICeller against Olga Sikes and another. Prom a judgment in favor of plaintiff, the defendant named appeals.
    Reversed and remanded.
    R. E. Carswell, of Decatur, for appellant. McMurray & Gettys, of Decatur, for appel-lee.
   CONNER, C. J.

The appellee, Keller, instituted this suit on the 22d day of September, 1915, in a justice court against C. O. Sikes and Olga Sikes, a feme sole, to recover the sum of $199.75, as damages for the conversion of certain personal property alleged to be of that value. It was alleged that the conversion occurred at a point named in New Mexico “on or about September 22, 1915.” The plaintiff in the suit at the same time caused the issuance of an-attachment, which upon the same day was levied upon certain goods described in the sheriff’s return; it being recited in the return that the property was “owned by C. O. and Olga Sikes.” While the defendants, C. O. and Olga' Sikes, were duly cited, it appears that they suffered a judgment by default in the justice court, but thereafter duly prosecuted an appeal to the county court, wherein the plaintiff filed what was styled his “original petition,” and wherein the defendant Olga Sikes appeared and by an answer in writing denied the conversion alleged by tbe plaintiff, and further specially alleged that she was the o-wner of the attached property. In answer to special issues upon which the case was submitted, the jury answered to the effect that O. O. Sikes converted the property described in the plaintiff’s petition, and that the defendant Olga Sikes acted with him in such conversion. The jury further found that the property converted was of value $199.75 less 90 cents that had been paid by O. O. Sikes in behalf of the plaintiff, and that the property upon which the writ of attachment had been levied and described in the officer’s reitum belonged to O. O. Sikes. Judgment in accordance with the verdict was rendered in favor of the plaintiff, and the defendant Olga Sikes has appealed.

As alleged, the value of the property charged to have been converted and tbe damage claimed was within the jurisdiction of the justice court, and the allegation is controlling in tlie absence of a special plea specifically charging that it was so alleged for the fraudulent purpose of wrongfully conferring jurisdiction upon the justice court. Dwyer v. Bassett, 63 Tex. 274; Roper Bros. v. Brady, 80 Tex. 588, 16 S. W. 434 Baker v. Guinn, 4 Tex. Civ. App. 539, 23 S. W. 604.

There is no merit, therefore, in appellant’s contention that the justice court was without jurisdiction, for neither in that court nor in the county court was it soughlt to defeat the jurisdiction by plea that the plaintiff had fraudulently stated the value-of the converted property, nor was the jurisdiction of the justice court defeated, as is insisted, on the ground that to the alleged value of the converted property must be added interest, which, if done, would extend tbe plaintiff's claim beyond $200. It is. true that interest in such cases is recoverable, as an element of damage from the date of the conversion; bu(t there was no prayer for the recovery of such interest, and interest as an element of damages was not adjudged. Moreover, as alleged, the conversion occurred upon the day of the institution off the suit, and hence in no- event did interest so accrue as to extend the amount of the plaintiff’s claim beyond the jurisdiction of the justice court; the rule being that, if the plaintiff’s allegations are susceptible of a construction which will support the jurisdiction of the court rendering the judgment, that construction will be adopted. See P. & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103. Appellant’s first assignment will, accordingly, be overruled.

We think the evidence authorized the submission of the issues, -arid that there was no error of the court either in giving or in refusing charges.

But we think the court committed reversible error as urged under the ninth assignment in admitting, over appellant’s objection, the testimony of Guinn Williams, E. P. Gibson, T. G. Bridges, and J. H. Lynch, to the effect that the general reputation of C. O. Sikes in the neighborhood in which he lived in Tesas prior to his removal to New Mesico for honesty and fair dealing was bad. While O. O. Sikes did not prosecute an appeal from the judgment against him in this case, he nevertheless was a party to the suit and jointly charged with the appellant Olga.Sikes with conversion, and he was a material witness in the case, and neither defendant put C. O. Sikes’ character in-issue. In his testimony he denied specifically the conversion charged, and-such testimony was material in behalf of the appellant Olga Sikes. The general rule undoubtedly is that in ordinary civil cases the general character of the parties to the. litigation is not in issue, and in cases such as this his character cannot be attacked except where he, himself, has put it in issue by an attempt to prove his good character, and no such attempt was made in this case. Appellee insists that the charge against O. O. Sikes to the effect that he had converted the plaintiff’s household goods and embezzled the money sent to him by plaintiff wiith which to pay the freight was such as to put in issue said defendant’s character for honesty and fair dealing, and that hence the evidence received was competent. It is true there is a class of cases, such as in actions for damages for libel, slander, etc., which constitute exceptions to the -general rule. In such cases the character of the party is the very matter in issue. In such cases the action is for the recovery of damages because of injury to character, and therefore, as stated, the status of the character of the complaining individual is the very matter in issue; but here the issue was one of conversion vel non. Whether O. O. Sikes and Olga Sikes were guilty of the conversion charged depended upon the particular facts and circumstances of the case, and not upon whether 0. O. Sikes’ general reputation was bad. It would certainly be extending the exception invoked by appellee beyond reasonable limits to say that the plaintiff by the making of a mere charge of conversion or embezzlement might prove the charge by establishing the bad character of the defendant. We know of no case, and none has been cited, that goes to such limits. On the contrary, we think all' of the authorities are against the proposition. Knights of Maccabees of the World v. Shields, 156 Ky. 270, 160 S. W. 1043, 49 L. R. A. (N. S.) 853; Fire Ass’n of Philadelphia v. Jones, 40 S. W. 44; Mullinax v. P.yron, 58 Tex. Civ. App, 253, 123 S. W. 1139; Hurst v. Benson, 71 S. W. 417; 1 Jones on Evidence (Blue Book), §§ 154 and 155; 10 E. C. L. p. 947, § 117 et seq.

No other questions presented seem to be material in view of the conclusions announced.

The judgment below, therefore, will be reversed, and the cause remanded for the error noticed.

On Motion for Rehearing.

We see no reason to change our conclusions as announced in our original opinion, and appellee’s motion for rehearing .will therefore be overruled; but appellant by motion duly filed suggests that our opinion on original hearing, to the effect tha't “there was no error of the court either in giving or refusing charges,” be made more specific in order that the trial court on another trial may not be led into error. It is particularly insisted that the court erred in submitting special issue No. 1 to the jury, for the reason that it was upon the weight of the evidence; but the objection to the charge as presented in the • assignment is wholly to the effect that, the charge was erroneous on the ground that there was “no evidence that G. O. Sikes converted the goods in question.”

There is no suggestion in the assignment, nor in any proposition following it, that there was “no evidence” tending to show that Olga Sikes converted the property. O. O. Sikes did not appeal, and on original hearing, and now, we do not deem it material to determine whether or not, as against O. O. Sikes, there was any error in the charge. By stating, however, that there was no error in the charge, we meant there was no prejudicial error presented, and we will assume that upon -another trial the court’s charge will be adapted to the evidence as then presented, and that, if need be, the criticism of the charge made in appellant’s second assignment of error will be avoided. So, too, do we assume that, should the circumstance shown upon another trial warrant it, the court will give, if requested, an appropriate instruction defining the word “conversion.”

Save as above expressed, the motion will be overruled.

       — nFnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=3For other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    J. B. FARTHING LUMBER CO. et al. v. GREENWOOD et al.
    (No. 7425.)
    (Court of Civil Appeals of Texas. Galveston.
    June 28, 1917.)
    COMPBOMISE AND SETTLEMENT <&wkey;12— COSTS--Attop.net Fee.
    G. and others applied for a receivership of two corporations. Before a hearing, all plaintiffs but G. were dismissed from the suit. The court, upon agreement of G. and defendants, appointed a receiver. The property- was advertised for sale, but before one had taken place G. and F., the only real parties in interest, entered into a settlement by which G. “does here-i by release” the corporations “from any and all claims of whatsoever character that he may have against them, and declare the same forever satisfied.” After this settlement O. filed a claim in the receivership case for reimbursement for attorney’s fees. Held, that he alone was liable for such fees.
    Appeal from District Court, Harris County.
    Suit by B. F. Greenwood and others against the J. B. Earthing Dumber Company and others. From an order of the court allowing attorney’s fees upon the application of plaintiff named, defendants appeal.
    Reversed and rendered.
    Huggins & Kayser, of Houston, for appellants. Fisher, Campbell & Amerman, of Houston, for appellees.
   GRAVES, J.

This appeal is prosecuted from a judgment of the trial court allowing an attorney’s fee of $250 to Fisher, Campbell & Amerman for services rendered in filing the original petition for a receivership in the suit. The fee was allowed at the instance and upon the application of B. F. Greenwood, one of the plaintiffs in the receivership proceeding, in which it was alleged that he had instituted that proceeding for the benefit of himself and of the creditors of the two corporations, Farthing Dumber Company, and the Farwood Realty Company, appellants; that he had employed this firm of attorneys to file the petition therein, and that their services had been for the benefit, not only of himself, but also of both appellant corporations and of their creditors. The prayer was for a reasonable allowance to the named attorneys for their services, with reguest that it be taxed' as part of the costs in the cause. No formal answer was filed by appellants to this application for the fee; but they contested it below, and excepted to, and have prosecuted this appeal from, the judgment allowing it.

The original petition for receivership had been filed ,by appellee Greenwood, a stockholder owning 50 per cent, of the entire stock of both appellant corporations, and Illig and wife, judgment creditors of one of the latter, in the amount of $460. In addition to appellants, the National Bank of Commerce, J. B. Farthing, and another had been made defendants, and among other grounds for receivership it was alleged that J. B. Farthing owned the other entire one-half of the stock of both corporations, and that there was such disagreement, dissension, and lack of co-operation between these two single holders of the entire stock of both corporations that neither could assume authoritative control and management thereof, nor could the business of the companies on that account be carried forward. Witlj much particularity it was in effect averred that these irreconcilable differences between the two equally entitled owners of both concerns had practically produced a complete deadlock in the further operation of both. Next day after its filing, and before the hearing of this application for receivership, plaintiffs Illig and wife were paid by the Farthing Dumber Company the full amount of their claim, executed a receipt accordingly, and were dismissed from the suit; likewise at a subsequent date, the Bank of Commerce was dismissed. After this, retirement of Illig and wife as the only other plaintiffs, however, the court on December 17, 1915, as upon agreement of the remaining plaintiff, appellee Greenwood, and the defendants, appointed a receiver. The receiver operated the property until June 29, 1916, several creditors having in the meantime intervened, when the court ordered him to advertise all the property for sale on July 10, 1916, to the highest bidder; but on the day for sale, and before one had taken place, appellee Greenwood and J. B. Farthing had reached an agreed settlement of all controversies between them in the suit, evidenced by a written contract of settlement of that date, July 10, 1916.

While we deem it unnecessary to recite the full provisions of this contract, the very preamble of it shows, although the two corporations were nominally parties, that appel-lee Greenwood and J. B. Farthing were the only real parties at interest in the entire receivership litigation, notwithstanding its necessary prosecution through the forms and procedure appertaining to corporations, the machinery by and through which their property and interests were held and operated. They provided in it that Greenwood should have certain specific properties and considerations, in return for the sale of his half of the stock in both companies to Farthing and his consequent retirement from any further connection with either, all of which considerations he got, and then in the concluding paragraphs agreed as follows:

“It is agreed by and between J. B. Farthing and B. F. Greenwood that each will at once and immediately proceed to carry out and fulfill the terms of this contract and agreement one with the other.
“In consideration of the conveyance to him of the real estate, notes, and accounts herein-above mentioned, the said B. F. Greenwood does hereby release said J. B. Farthing, Farwood Realty Company, and the J. B. Farthing Dumber Company from any and all claims of whatsoever character that he may have against them, and declares the same forever satisfied.”

The record shows that this settlement had only been effectuated late in the day of July 10th, and that on the next day, July 11th, the court entered its order allowing the attorney’s fee complained of by this appeal, which was at the same time a general judgment of dismissal of all proceedings in the suit at the cost of appellants, without ordering any sale of the properties or taking any action with reference to creditors; the decree containing this recitation:

“It developed, however, that since said settlement the plaintiff B. F. Greenwood, had filed herein a claim to reimburse him for expenses incurred by him for attorney’s fees herein, and the plaintiff submitted the same to the court, and the defendants J. B. Farthing Lumber Company and Farwood Realty Gompany insisted that the same had been settled by the agreement of settlement, and resisted the allowance of same. The said claim of the plaintiff Greenwood was then submitted to the court, and evidence heard thereon, and the same being heard and considered by the court, and the court being in all things advised, is of the opinion that said claim should be allowed and taxed as a part of the costs herein.”

Appellants attack the judgment allowing the fee upon the same ground in this court, and we think their position well taken. After a full review of the entire record, the conclusion is forced upon us that, in its essential essence, this litigation was but the expression through the necessary legal forms of the utter inability of the two individuals, Greenwood and Farthing, ¡each owning through his stock an equal undivided half interest in the properties, to agree as to the management and conduct thereof; that this unfortunate situation, and it alone, furnished the only excuse for a receivership over the properties; that the corporations were far from being insolvent, were amply able to take care of all their debts; and that no creditor had before, nor even after, the receivership pressed for the collection of any debt through litigation, but those who intervened in that proceeding had been satisfied to allow the receivership dismissed without any action looking to the payment of their claims, the moment the individual stockholders, Greenwood and Farthing, agreed to settle their differences.

Looking from what thus gave rise to this receivership to its effects, we also find an utter absence of any service performed or benefit secured by means of it for any creditor, or even for any other stockholder than ap-pellee Greenwood himself. It cannot be said that the fee accrued for service performed in behalf of the creditors Illig and wife, because, as above shown, they had been paid in full and dismissed from the suit before the appointment of the receiver. Furthermore, not only was there not a single creditor paid through this receivership, but there was no fund or property arrested, secured, or impounded by it for the benefit of creditors or stockholders, and out of which the fee allowed was to be paid; only the same assets the companies had before were administered through it to the extent already stated, and its net result was to reduce them by just the costs of that proceeding and the amounts paid to Greenwood for his stock, and possibly to the Illigs for their judgment.

In the light of the facts recited, the purposes and meaning of the contract of settlement itself become much clearer than its words alone; while neither costs of court, including the receivers’ fee, nor any attorney’s fees, are specifically mentioned in this written contract, in their oral agreement effectuating and carrying out the details of the settlement evidenced by it, the attorneys for both Greenwood and Farthing talked over the receivers’ fee and the other court costs, which it was mutually understood between them would only amount to the usual nominal sum in such matters, a few dollars, and it was. agreed that appellants would pay these small items. No suggestion was made that attorney’s fees for filing the petition in the receivership case would be or were claimed, and consequently no discussion about nor reference to any such claim occurred. It passes our comprehension that, under these circumstances, any such fee, or the possibility of its being allowed to still further reduce the properties left in Farthing’s hands after his payment to Greenwood for the latter’s full half, could have been within the contemplation of either of these two in making this settlement they did; but we think the wording of their contract, as thus illuminated,, plainly indicates the contrary, and that the prompt filing of his application for such an attorney’s fee on the very next day after thus settling every claim he had against his opponent in the litigation must have been an afterthought upon appellee’s part.

When applied to the developed facts of this case, we do not think the allowance of this fee can be sustained under the principles announced in the following cases, cited and relied upon by appellee Greenwood: Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Central R. & B. Co. v. Pettus, 113 U. S. 116, 5 Sup. Ct. 387, 28 L. Ed. 915, especially first column, p. 918; Cowdrey v. Galveston, Houston & Henderson R. R. Co., 93 U. S. 352, 23 L. Ed. 950. As stated in all of these cases, and as recognized by appellee in his brief, the theory upon which an attorney’s fee is allowed in a case of this character is by way of reimbursement to the petitioning creditor for the service performed through his attorney for the use of other creditors similarly situated.^ The dominating consideration is that the’distinct service of the one who files the petition is of value to the other creditors similarly situated, and this diligent creditor is entitled to force the other creditors to ratably share the expense of his efforts with him. To restate the matter in another way, the principle is that, when a creditor has by his diligence filed a suit and impounded property in the custody of the court, and by his diligence secured it for application to his claim and the claims of other creditors of the same class, he is entitled to force the other creditors to contribute out of this fund to the payment of a reasonable attorney’s fee for the service .rendered; the theory being that the attorney performing the service for his own individual claim performs a like service for each other creditor similarly situated.

But, as our statement of the facts has shown, no such a condition prevailed here; but, upon the other hand, the entire fee was to come out of the residue of Farthing’s half of the property and assets of their two jointly and equally owned companies, after Greenwood had gotten his full share and had in writing so acknowledged. Believing that the record shows allowance of the attorney’s fee to have been improperly made, since the facts were all fully developed, the trial court’s judgment making such allowance will be reversed, and judgment here rendered for appellants.

Reversed and rendered.
      <§c^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GEORGIA CASUALTY CO. v. SHAW et al.
    (No. 7413.)
    (Court of Civil Appeals of Texas. Galveston.
    June 6, 1917.
    Rehearing Denied June 28, 1917.)
    1. Insurance &wkey;>665(5) — Accident Insurance — Assault on Insured — Sufficiency of Evidence.
    In suit on an accident insurance policy, evidence held sufficient to justify the jury in finding that insured who was shot in a difficulty, was not the aggressor.
    2. Insurance <s&wkey;665(5) — Accident Insurance-Burden of Proof — Presumption.
    The burden to make out their case, resting upon plaintiffs suing on an accident insurance policy, was met by their proof that insured’s death was caused by external and violent means, a presumption of law then arising that the death was caused by accidental means, thus making a prima facie case.
    3. Insurance <&wkey;G46(6) — Accident Insurance — Killing in Self-Defense.
    Where plaintiffs, suing on an accident insurance policy, proved that insured’s death was caused by external and violent means, to overcome the prima facie case thus made by the defense that insured was killed in course of an assault upon another it was necessary for the insurer to show that a felonious assault was first made by insured upon the other, that insured was the aggressor, and that he met his death at the hands of the assaulted person in self-defense.
    4. Appeal and Error <&wkey;226(2) — Attorney’s Fees.
    In suit on an accident insurance policy, where, beyond merely objecting to an allowance of $1,500 as attorney’s fees at the time made, defendant, made no effort on trial to show either the unreasonableness of the amount, or the impropriety of such fees, and the question of the attorney’s fees was not submitted to the jury, being determined by the court at the close of the trial by the acquiescence, of defendant, on uncontroverted pleadings and undisputed proof as to the reasonableness of the amount awarded, defendant cannot complain of the samo on appeal.
    5. Evidence i&wkey;544 — Expert Testimony — Competency of Witness.
    In suit on an accident policy, where the coroner’s report on the death of one charged by the insurer to have been shot by the insured was incorporated by reference into a hypothetical question to a medical witness, and the report gave a description of the wound asked about, showing its point of entrance and its point of exit, the caliber of bullet used, and the style of gun, the medical witness, an experienced physician, widely experienced with the effects of gunshot wounds, who had examined the wound in the insured, which had been caused by a bullet fired from the same gun, had sufficient knowledge of the facts on which to pass an expert opinion.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by Ella Shaw and others against the Georgia Casualty Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Frank S. Anderson, of Galveston, for appellant. Stewarts, of Galveston, for appellees.
   GRAVES, J.

Appellees brought this suit in the district court of Galveston county against Georgia Casualty Company, appellant, to recover the sum of $7,500, being the value of an accident insurance policy issued by appellant to Robert G. Shaw, the insured, in which appellee, Ella Shaw, is named as beneficiary. Appellees pleaded that the insured, Robert G. Shaw, died February 17, 1916, from septicemia, or blood poisoning, resulting directly from a gunshot wound received by him on February 1, 1916; that such injuries' were effected through violent, external, and accidental means, and that the policy issued by appellant covered that class of injuries at the time they were received by insured. They also pleaded proof of loss and demand for payment more than 30 days before institution of suit, the failure and refusal of appellant to pay, and the employment of an attorney. Appellees asked judgment in the sum of $7,500, the face of the policy, plus $900 statutory damages of 12 per cent, for failure to pay the amount of the policy promptly, plus' $2,500, alleged to be reasonable attorney’s fees for prosecution of the suit. Appellant denied these allegations, and alleged that Robert G. Shaw, the insured, assaulted George A. McLarty with intent to kill him; that McLarty in. self-defense shot insured, Shaw, causing the wounds from which insured died, and that the wounds received by Shaw were therefore not received by accidental means. The court submitted the case on special issues, as follows:

“(1) Did Robert G. Shaw unlawfully assault and shoot George A. McLarty with a loaded rifle with the intent to kill him?
“(2) If you answer question No. 1 in the affirmative, then will you answei", Did Shaw receive the injuries from which he died while McLarty was resisting and repelling such assault in self-defense?”

The jury answered the first question in the negative. Judgment was entered on the 14th day of July, 1916, in favor of appellees against appellant for the sum of $7,500, the amount of the policy sued on, the sum of $900, statutory damages of 12 per cent, for delay, and the further sum of $1,500, found by the court to be reasonable attorney's fees, making a total of $9,900, from which judgment the casualty company prosecutes its appeal.

At the close of all the evidence the casualty company made 'the following agreement or concession:

“Defendant admits that the plaintiff is entitled to recover upon the policy sued upon herein, and that Robert G. Shaw came to his death by violent, external, and accidenta^ means, unless the jury should make affirmative answers to both special issues No. 1 and No. 2 submitted, and the defendant be entitled, as a matter of .law, to a judgment thereon.”

Upon this state of the record, the main question in the case is whether it was shown that Shaw came to his death by accidental means, within the meaning of the policy, and whether it was or not depends alone, under this quoted agreement, on the sufficiency of the evidence to sustain the jury’s negative answer to special issue No. 1; in other words, if the evidence did not require the jury to find that Shaw' both unlawfully assaulted and shot McLarty with intent to kill him, and also received his mortal injuries at McLarty’s hands while the latter was in self-defense resisting such assáult, then a judgment of recovery upon the policy was admittedly proper.

Accordingly, in its first four assignments, appellant attacks the sufficiency of the evidence to sustain the jury’s answer to special issue No. 1, contending that the answer .was not only contrary to, unsupported by, and against the obvious weight of any evidence in the case, but was the opposite conclusion to that which ordinary minds would be led to. After a most painstaking review and consideration of the evidence, we are unable to agree with appellant. It has with marked discrimination and ingenuity woven a most persuasive web of circumstantial evidence, and therefrom deduced a most plausible conception of how the double tragedy was enacted, but at most and best it is but a theory, something which, when applied to past events, can never be demonstrated, a creature of the mind. Likewise, and with no differences except, perhaps, in degree of probability, the appellees have from the same body of testimony erected their own structure of speculation upon how it occurred; and, in our opinion, the state of the entire evidence was such as to make it legitimately susceptible of the application of either theory, according to the individual viewpoint. The testimony of the various witnesses is almost free of contradiction and of discrepancy. The double homicide occurred in a room in the Cotton Exchange Building in Galveston, with only its two victims present in that room at that particular time. It was vouchsafed to no one who testified to see either the actual inception or the consummation of the difficulty between the two participants that within a few moments resulted in the death of the one and the mortal wounding of the other; nor, in- ' deed, was any witness able to say that he saw either man actually shoot at the other, although the witness Kerr did state, after the first shot, he turned toward the open door of the Cotton Exchange office and saw Mr. Shaw pointing a gun towards the east or northeast; that, not desiring to see more, he turned away, but after hearing a second shot, he returned, looked in the door a second time, and did not see Shaw, but saw McLarty standing up in a different part of the room from .where he was last seen about two or three minutes before the shooting; that he then went out of sight again, and afterwards heard the third and last shot fired. As already indicated, no other witness saw or heard as much; and even he admitted :

“I don’t know whether McLarty came in there and attacked Shaw or whether Shaw attacked McLarty.”

Dr. Gammon, whose testimony and knowledge of the conditions upon which it was based, is hereinafter more fully referred to, after having the two wounds of McLarty described to him, was asked the direct question, “What effect would those wounds have had,” and replied:

“The bullet that entered — that would enter, and just such a bullet as this was, fired into Robert Shaw’s body, when entering near the right shoulder might or might not produce instant death; but a bullet fired, striking near the pit of the stomach, and taking a range that would bring it out near the light shoulder, would surely sever the aorta and vena cava, the two great blood vessels that lead from the heart to the lower part of the body, and cause instant death. Q. When you say ‘instant death,’ what effect would be produced on a man as to what he would be able, if anything, to do? A. Well, severing blood vessels of that size, as near the heart as those vessels would be in the track of the bullet, entering at the pit of the stomach and coming out under the right shoulder, the character of this bullet — the character of the wound it made, lacerates completely all of the tissues in that track and for a distance around it, and, judging from the injury done to the muscles of Shaw, I think that that bullet would surely cut those two large vessels, which would instantly, with the first contraction of the heart, empty the heart of all of the blood contained therein; at the next dilation would empty the brain of all of the blood there, and that the man would drop to the floor within three seconds after the Ball struck him.”

It thus conclusively appears, we think, not only that there is a fatal hiatus in the actual proof as to which man began the difficulty, 'committed an assault, or fired the first shot which, however much or mathematically we may theorize upon the elaborate network of physical facts and conditions shown in the record, cannot be supplied, but that there was sufficient evidence in the record as a whole to have justified the jury in concluding that Shaw was shot first, hence committed no assault, and that McLarty was the aggressor and assaulted him. Indeed, they must have reached that conclusion if they accepted Dr. Gammon’s quoted opinion as correct; because, under that, it would have been a physical impossibility for Mc-Larty to have operated and shot Shaw with the kind of gun the only one he could have used was shown to be, after receiving such wounds as he had; nor do we know that the jury did not in fact take this view, since their finding merely-was that Shaw did not unlawfully assault and shoot McLarty with intent to kill him. I-Ience we are not at I liberty to set their verdict aside. The four assignments raising this question must therefore be overruled.

From these conclusions it must also follow that a discussion of the question of the burden of proof upon appellants’ specially pleaded defense that Shaw assaulted,McLarty with intent to kill him, but was in turn killed by McLarty, who acted in self-(lefense, would be purely academic. We think the proof offered upon this defense would have been admissible under the general denial without the necessity of specially pleading it, as was done.

It is further true that the burden upon the whole case to make out their case as pleaded was upon appellees, and that it never shifted from them to appellant; but we think this burden was met by their proof that the death of the insured was caused by external and violent means, and that, as between them and the insurer, a presumption of law then arose that such death was caused by accidental means; a prima facie case was thus made, but some rebutting evidence having been offered, the question was still one for the jury’s determination from the preponderance of all the evidence. Yeaman v. Galveston City Co., 190 S. W. 212; Sovereign Camp of Woodmen of the World v. Boehme, 44 Tex. Civ. App. 159, 97 S. W. 8-47; Grand Lodge v. Green, 62 Tex. Civ. App. 366, 131 S. W. 442; Sovereign Camp v. McCulloch, 192 S. W. 1154; Travelers’ Ins. Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308; Lovelace v. Travelers’ Protective Ass’n, 126 Mo. 304, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638; Accident Ins. Co. v. Bennett, 90 Tenn. 256, 16 S. W. 724, 25 Am. St. Rep. 685.

In order to overcome the case thus made, through the single defensive matter here set up, the felonious assault and its repulsion in self-defense, it became, under all the authorities, necessary that it be shown that such character of assault was in fact first made by the insured, that he was the aggressor, and that he met his death at the hands of the assaulted person while in self-defense repelling it; this much is held necessary by, and proof of it is the basis for the decisions of, the cases cited and relied upon by appellant casualty company; United States Mutual Accident Ass’n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; Fidelity & Casualty Co. v. Stacey’s Executors, 143 Fed. 271, 74 C. C. A. 409, 5 L. R. A. (N. S.) 657, 6 Ann. Cas. 955; Taliaferro v. Travelers’ Protective Ass’n, 80 Fed. 368, 25 C. C. A. 494; Prudential Casualty Co. v. Curry, 10 Ala. App. 642, 65 South. 852; Travelers’ Ins. Co. of Hartford v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308; Postler v. Travelers’ Ins. Co., 173 Cal. 1, 158 Pac. 1022-1024. In fact, its above-quoted agreement as to the legal effect of an answer, provided it was properly grounded in the evidence, to the two particular questions submitted as special issues to the jury, without objection to them, or request for the submission of other or different issues, presupposes its' concession that recovery must go for ap-pellees, unless it at least appeared from the evidence that an assault was both committed and repelled in the manner and with the effect therein inquired about; likewise, the answering authorities presented by appellees hold as much, but some of them qualify the broad rule, permitting the insurer to defeat a recovery by showing that the insured met death at the hands of one in self-defense resisting, whom he had first aggressively assaulted, by observing that the circumstances must have been such that it reasonably appeared to the insured that death would be his probable portion as a result of making such assault. Sovereign Camp of Woodmen of the World v. Boehme, 44 Tex. Civ. App. 159, 97 S. W. 847; Ency. of Evidence, vol. 7, pp. 549, 551; Cronkhite v. Ins. Co., 75 Wis. 116, 43 N. W. 731, 17 Am. St. Rep. 184; Accident Ins. Co. v. Bennett, 90 Tenn. 256, 16 S. W. 724, 25 Am. St. Rep. 685; Beard v. Ins. Co., 65 W. Va. 283, 64 S. E. 119; Wilkinson v. Life Ins. Co., 240 Ill. 205, 88 N. E. 550, 25 L. R. A. (N. S.) 1256, 130 Am. St. Rep. 269; Bryant v. Casualty Co. (Sup.) 182 S. W. 673, L. R. A. 1916E, 945; Lovelace v. Travelers’ Protective Ass’n, 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638: Union Cas. & Surety Co. v. Harroll, 98 Tenn. 591, 40 S. W. 1080, 60 Am. St. Rep. 873; Prudential Cas. Co. v. Curry, 10 Ala. App. 642, 65 South. 852.

Applying these holdings to the developed facts of the case at bar, as we have so found them to be, it at once becomes apparent that nothing could be accomplished by a detailed discussion of either line of these cases, because they all agree as to the sine qua non of a defeat of liability; that is, the kind of an assault here involved, the very thing we find was not proven; since, therefore, no part of such essential proof obtained here, it follows that the prima facie case made out by appellees remained unshaken.

Under its seventh assignment appellant complains of the $1,500 allowed by the court as reasonable attorney’s fees as being excessive, but a recurrence to the record shows that, beyond merely objecting to the allowance at the time made, it neither by pleading proof, nor requested submission of the matter of attorney’s fees under proper charge to the jury made any effort upon the trial to show either the unreasonableness of the amount, or the impropriety of allowing such fees at all; but, on the other hand, it does appear that the question of attorney’s fees was not submitted to the jury, but by the acquiescence at least, if not by the positive agreement of appellant, in admitting that appellees were entitled to a judgment upon the policy, which by legitimate inference in-eluded all proper consequences thereof, was determined by the court at the close of the trial, and upon uncontroverted pleading and undisputed proof as to the reasonableness of the amount awarded. Under these circumstances we do not think appellant is in any position to complain in this court, nor that we could properly say either that the amount was excessive, or that the trial court abused its discretion in awarding it. Vernon’s Sayles’ R. S. art. 4746; McCaulley v. Bank & Trust Co., 175 S. W. 728; Rushing v. Bank, 162 S. W. 470; Bank v. Robinson, 104 Tex. 166, 135 S. W. 372.

In the fifth assignment, the court’s action in admitting the testimony of the expert witness, Dr. William Gammon, is vigorously assailed. The complaint is neither of the more usual objections to expert testimony, that the witness did not properly qualify as an expert, nor that the subject-matter was not susceptible of expert opinion, both of which were inferentially at least conceded, but the objection is that the doctor did not have sufficient information upon which to base his opinion. It is insisted that the necessarily harmful effect of admitting as evidence an opinion based on insufficient facts was reversible error. But what was the inquiry, and what were the facts and information upon which the complained of opinion was based? Dr. Gammon, an experienced surgeon, of wide experience with the effects of gunshot wounds, had examined the wound in Robert G. Shaw, this wound having been caused by a bullet fired from the identical gun from which the bullet was fired into Mc-Larty, causing the wound under inquiry. He examined McLarty superficially a few minutes after McLarty was shot, and saw that McLarty was dead. The witness was read the following excerpt from the coroner’s report, which report had been introduced in evidence by appellant:

“After examination I find the body of deceased to be that of George A. McLarty, secretary of the Galveston Maritime Exchange, and that the cause of death was two gunshot wounds', one near pit of stomach, just to the right of median line, the other just below the point of right shoulder, making also two exit wounds under right arm, said wounds inflicted with a Winchester 3030 caliber rifle”

• — after which the following question was asked:

“Q. (to Dr. Gammon): Now, you will please state what effect those wounds, as described, would have had, fired into a human body.”*

The witness then gave his opinion in answer to the question. We think the witness had sufficient knowledge of the facts upon which to base an expert opinion; the coroner’s report was incorporated by reference into the hypothetical question asked witness, and this report gave a description of the wound asked about, showing its point of entrance and its point of exist, showing the caliber of bullet used, and the style of gun. These facts certainly describe to a physician the character of wound received. Dr. Gammon knew, further, that the shooting was done within the limits of the secretary’s office of the Cotton Exchange; that McLarty had in fact died a few minutes after receiving the wound under inquiry, and he himself had also examined the wound in Shaw, effected by the same weapon. This evidence, it seems to us, meets all of the requirements of expert testimony. Shelton v. State, 34 Tex. 663 ; Thomas v. State, 40 Tex. 60; Pigg v. State, 43 Tex. 108; Railway Co. v. Abbott, 146 S. W. 1078; Railway Co. v. Webb, 178 S. W. 728; Railway Co. v. Harris, 172 S. W. 1131; Railway Co. v. Roemer, 173 S. W. 229; Pullman Co. v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 315; Railway Co. v. Grenig, 142 S. W. 139; Henry v. State (Cr. App.) 49 S. W. 96; Railway Co. v. Parrish, 43 S. W. 536.

In our opinion no reversible error has been shown, all assignments are overruled, and the judgment is affirmed.

Affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: LEVY, J.

text:
    ROSBOROUGH v. CERVENI.
    (No. 1763.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 13, 1917.
    Rehearing Denied July 28, 1917.)
    1. Appeal and Error t&wkey;1048(3) — Review-Admission op Evidence.
    The exclusion of evidence will not be ground for reversal when the court’s qualification to the bill of exceptions shows that the objection was sustained merely because the question was leading; the same matter having already been testified to by other witnesses.
    2. Nuisance &wkey;>76 — Bawdyhouse — Question for Jury.
    Whether or not a particular house is used ■as a bawdyhouse and whether the owner knew of its use are questions for the jury.
    3. Appeal and Error <&wkey;10O2 — Review — Verdict — Conflicting Evidence.
    Where the evidence is conflicting, the appellate court will not disturb a verdict.
    Error from District Court, Bowie County; H. P. O’Neal, Judge.
    Action by E. T. Rosborough against Joe Cerveni. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Plaintiff in error is the owner of a house and lot in the city of Texarkana used for profit as a rented residence. The defendant in error Is the owner of a two-story house situated upon a lot adjoining the said premises of the plaintiff in error. And the plaintiff in error brings this action to recover damages from the defendant in error for, as alleged, knowingly renting and permitting the uppe¡r story of his house to be used as a place of prostitution, by which the plaintiff in error’s house was diminished in value and rendered unfit for rental purposes. The defendant in error answered denying the allegations of the petition. There was a trial before a jury, and they returned a verdict for the defendant.

      Tlie evidence offered in behalf of the plaintiff shows that the house was used, after being rented, as a house of ill fame, and kept as a place of common prostitution, and that the defendant had ample knowledge of the purposes for which the house was used. And the evidence offered by the defendant was in substance that the house was only used as a proper rooming place, and was not a place of ill fame or of prostitution. The defendant testified to the effect that he did not rent the house for any immoral purpose, and that he did not know that the house was being used as a bawdyhouse, and that when he was notified by the plaintiff in error concerning the alleged use that he immediately went to the city officers and requested them to look into the situation and advise him if anything was wrong, and that such officers, after investigating, informed him there was nothing wrong in the use of the house. The verdict of the jury settled this conflict of evidence in favor of the defendant’s contention.
    E. Newt Spively and- E. E. Weaver, both of Texarkana, for plaintiff in error. R. W. Rodgers and Joe Hughe's, both of Texarkana, for defendant in error.
   LEVY, J.

(after stating the facts as above).

Error is predicated upon a bill of exception relating to evidence. According to the bill of exception, a witness was asked to state the reputation of the house as a house of ill fame. The court sustained an objection made to the question. The court qualifies the bill with the statement:

“I sustained objection to the form of question because it was leading and did not undertake to prove the general reputation of the house. A number of other witnesses, including plaintiff, Murphy, and Ray, proved the reputation of said house as being a place where prostitutes frequented.”

In view of the qualification, the objection was sustained only as to the “form of question” in not having the “general reputation” asked about. If the form of the question had beeh changed in accordance with the court’s ruling, the answer of the witness would, as indicated by the bill, have been admitted as evidence; for according to tbe bill the same evidence as sought from the witness was already in evidence by several witnesses. In view of the bill as explained by the court, this court would not be warranted in holding that the ruling of the court constitutes reversible error.

The next assignment of error complains that the verdict of the jury is contrary to and unsupported by the evidence. In this case the evidence in behalf of plaintiff would go to establish that the house was used as a bawdyhouse, and that the defendant knew of its usd; while, on the other hand, there is some evidence in behalf of the defendant that goes to show that the house was a moral rooming house, and there is evidence to show that, if the house was used as a bawdyhouse, the defendant did not know of its use. The charge of the court fairly presented the issues to the jury, and they evidently founded their verdict, as in their province, on the evidence in behalf of the defendant. Whether or not a particular house is used as a bawdyhouse, and whether or not the owner of the house knew of the use that the house was being put to by his tenant, are essentially questions of fact for decision by the jury. And in view of the conflicting evidence the appellate court may not disturb the verdict of the jury. Consequently this court is constrained to affirm the judgment on the record.
      ÉfcpFor other tases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    WARREN v. ATLAS CONST. CO.
    (No. 7429.)
    (Court of Civil Appeals of Texas. Galveston.
    June 5, 1917.
    Rehearing Denied June 28, 1917.)
    1. Attachment <&wkey;31<E-CLAiMANTS’ Bonds— Action on — Default.
    Where claimant of attached property files his bond and oath under statute, enters his appearance, and requests court to make order directing issues to be made up, no judgment can be rendered by default against him or his surety until ho refuses to join issues under direction of court.
    2. Attachment <&wkey;31 E-Claimants’ Bond-Action on — Damages.
    On failure of claimant of attached property to sustain his claim, judgment may be rendered for plaintiff in attachment for amount of his debt, instead of for value of property, where debt is less than such value.
    Error from District Court, Harris County; Chas. E. Ashe, Judge.
    Error by J. B. Warren, from judgment rendered against him in favor of the Atlas Construction Company, on claimant’s bond filed by him in attachment suit by said company against S. Johnson.
    Reversed and remanded.
    A. C. Van Velzer, of Houston, for plaintiff in error. Atkinson, Graham & Atkinson, of Houston, for defendant in error.
   LANE, J.

On the 2d day of April, 1915, the Atlas Construction Company, hereinafter called Construction Company, filed a suit in the Eleventh district court of Harris county against one S. Johnson. In its petition in that suit the Construction Company alleged that it was a corporation of Tulsa, Okl. During the pendency of said suit the Construction Company sued out a writ of attachment, and the same was levied upon a certain automobile -as the property of S. Johnson. The automobile- so taken under said writ was valued by the officer taking the same at $535. On the 12th day of May, 1915, J. B. Warren, plaintiff in error, filed his claimant’s bond and oath under the statute, with the Lion Surety & Bonding Oom-pany as liis surety, and by virtue thereof the automobile in question was delivered to said Warren. The oath and bond of Warren were, on said 12th day of May, 1915, filed in said district court, and said cause was then docketed as Atlas Construction Company v. J. B. Warren, No. 66577C. On the 18th day of June, 1915, during the next term of said court, after the filing of said bond and oath, the defendant Warren filed his appearance in said claim bond case, which reads as follows:

“Comes now the defendant, J. B. Warren, in the above numbered and styled cause and hereby waives the service of citation upon him in this cause. The defendant now appears for all purposes of joining issues in this cause and for its trial at the present term of this court or the next term thereof. The defendant requests and now moves the court to make an order directing issues to be made up and tried in this cause by the parties hereto.”

Thereafter no further pleadings were filed by either party to the suit, so far as is shown by the record, nor was there any further proceedings had in the court affecting this suit "or the suit against S. Johnson until the 24th day of November, 1915 (same being during the next term of said court after the June, 1915, term of said court), at which time the trial court rendered judgment in the main or original suit for the Construction Company against S. Johnson for the sum of $500, and for a foreclosure of its attachment lien on the automobile in question, and for the sale of said automobile to satisfy said judgment, etc. On the same day, to wit, November 24, 1915, without further pleadings by either party in cause No. 66577C, the claim bond case, the trial court rendered the following judgment:

“11/24/15. This cause coming on to be heal’d, on this day came the plaintiff, Atlas Construction Company, by counsel, and announced ready for trial, and the claimant, J. B. Warren, who has heretofore filed a claimant’s oath and bond as provided by law, came not but wholly made default. It is therefore considered and adjudged b¡y the court that plaintiff, Atlas Construction Company, do have and recover of and from claimant J. B. Warren as principal, and the Lion Bonding & Surety Company, as surety on his claimant’s bond, the sum of $500 the amount of judgment recovered by plaintiff and 10 per cent, damages thereon, making the sum of $550, together with all costs of suit for which let execution issue.
“It is further adjudged and decreed that no execution shall issue on this judgment for 10 days hereafter, and that if within 10 days the claimant, J. B. Warren, shall return the property described in said judgment, to wit, one five passenger car. Ford make, license No. 6478, serial No. 669496: together with the damages and costs; such delivery and payment shall operate as a satisfaction of this judgment.”

From the judgment last mentioned J. B. Warren has appealed.

By appellant’s first assignment of error it is, in effect, insisted that the trial court erred in rendering judgment by default against Warren and his surety, because the said Warren was not in default so as to entitle the Construction Company to such default judgment, the said Warren having theretofore entered his appearance in said cause and having requested the court to order the parties to join issues in said cause, and because the court had not ordered the joinder of issues by the parties, and the plaintiff in said claim bond suit had tendered no issues in said suit, or made other pleading therein prior to the rendition of said judgment. If the contention here made toy appellant is sustained, it would require a reversal of this cause. Until issues are tendered the claimant cannot be considered in default, and no judgment can be rendered by default against him and his surety on his claimant’s bond. Field v. Fowler, 62 Tex. 68; Harry v. City Bank, 10 Tex. Civ. App. 51, 80 S. W. 92; De Forest v. Miller, 42 Tex. 86. In the case of Field v. Fowler, supra, it is said:

“Our Revised Statutes provide that, when a plaintiff in an action for the trial of the right of property appears, and the defendant fails to appear, or neglects or refuses to join issue under the direction of the court within the time prescribed for pleading, the plaintiff shall have judgment by default as in other cases. Article 4385 (5299). The result of this provision is to give to an appearance by the defendant all the effect of a plea in an ordinary case in preventing a judgment by default until such time as he shall refuse to join issue under the direction of the court. How this appearance is to be effected is not prescribed, but when the parties come into court, as in this case, and have an entry made upon the minutes that they have appeared, it is sufficient to prevent the consequences of a failure to appear on either side. The appearance may be either in person or by attorney, and its effect continues until it is withdrawn or set aside, or the defendant fails to join issue when one is directed by the court.”

It has been shown that on the 18th day of June, 1915, after Warren had filed his claimant’s bond and oath, and before the next preceding term of the trial court had convened at which judgment by default was rendered against him and his surety, Warren, in writing, had entered his appearance in said cause and requested the court to make an order directing issues to be made up. There is nothing in the record to show that such appearance had been withdrawn or otherwise set aside or rendered inoperative as an appearance; nor is there anything in the record to show that the court had directed said issues to be made as requested by Warren, nor that the Construction Company had tendered any issues whatever. Under such state of facts the court committed such error in rendering judgment by default against the claimant and his surety as must cause a reversal of the judgment so rendered.

“On the failure of claimant to sustain his claim to attached property, it is immaterial that judgment is rendered for plaintiff in attachment for the amount of his debt, instead of for the value of the property, where the debt is less than such value.” Cobb v. Campbell, 14 Tex. Civ. App. 433, 38 S. W. 246.

Therefore appellant’s complaint that the trial court rendered judgment against him for $500, the amount of the debt of the Construction Company against Johnson, cannot 'be sustained, since it is shown that the automobile taken under his claimant’s bond was of the value of $535.

What has been said sufficiently disposes of all the issues presented by this appeal.

Because of the errors pointed out the judgment of the trial court is reversed,' and the cause is remanded.

Reversed and remanded.
      other eases see same topic and KEY-NUMBEIt in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    KANSAS CITY, M. & O. RY. CO. et al. v. BELL.
    (No. 1212.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1917.)
    1. Carriers <@=>229(1) — Live Stock —Delay in Transportation — Damages.
    In an action for delay in transportation of hogs intended for exhibition purposes, damages for loss of chance of winning prize money are not too remote and speculative.
    2. Carriers <@=>228(3) — Delay in Transportation — Evidence—Damages.
    In an action for damages for delay in transportation of hogs intended for exhibition purposes, evidence tending to show probability of plaintiff having been successful competitor for prize money is admissible.
    3. Evidence <@==>471(2) — Opinion — Admissibility.
    Evidence that hogs delayed in transportation and intended for exhibition purposes would have taken first premium was properly excluded as stating a conclusion.
    4. Carriers <@=>229(3) — Delay in Transportation-Damages.
    In the absence of notice that hogs are intended for exhibition purposes, carrier is not responsible in damages for loss of prize money caused by delay in transportation.
    5. Carriers <@=229 (3) — Live Stock — Liability por Delay.
    General notice to the carrier that hogs are to be transported for exhibition purposes is sufficient to authorize recovery of damages for loss of prize money caused by delay in transportation.
    6. Carriers <@=>229(4) — Connecting Carrier —Bill op Lading.
    Under Rev. St. arts. 731, 732, providing for through transportation and that either connecting carrier shall be liable to the shipper for negligent loss or delay, notice to initial carrier that hogs shipped on through bill of lading are intended for exhibition purposes is notice to connecting carrier.
    7. Carriers <@=>229(4) — Transportation op Live Stock — Joint Contract.
    Under joint contract for shipment of hogs knowledge of one carrier that they are for exhibition purposes binds the other.
    8. Carriers <@=>229(4) — Transportation op Live Stock.
    Rev. St. arts. 731, 732, is inapplicable to a carrier transporting hogs under separate contract, and such carrier is not chargeable with knowledge of carrier from whom it received shipment that hogs are intended for exhibition purposes.
    9. Carriers <@=>229(2) — Transportation op Live Stock — Damages.
    That hogs were shipped for exhibition purposes, and not immediate sale, does not affect application of ordinary rules for assessing actual damages for negligence in the shipment.
    10. Carriers <@=>228(3) — Carriage op Live Stock — Damages.
    In action for damages for delay of shipment of hogs intended for exhibition purposes, allegations and proof of what hogs sold for several days after arrival at destination and after being on exhibition does not furnish proper facts for assessing actual damages.
    11. Carriers <@=>229(2) — Delay in Transportation — Excessive Damages.
    Where it was alleged that hogs delayed in transportation lost 25 pounds per head and their value depreciated 25 cents per hundredweight because thereof, a verdict for more than amount that total weight lost would be, figured at highest price per pound, is excessive.
    Appeal from Foard County Court; G. L. Burk, Judge.
    Action by W. S. Bell against the Kansas City, Mexico & Orient Railway Company and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    D. J. Brookreson, of Benjamin, J. A. Clarke, of Quanah, and Thompson, Barwise & Wharton, of Ft. Worth, for appellants. Robt. Cole, of Crowell, for appellee.
   BOYCE, J.

This suit was brought by ap-pellee, Bell, against the Kansas City, Mexico & Orient Railway Company and Ft. Worth & Denver City Railway Company, for damages for delay in a shipment of hogs over said roads from Crowell to Ft. Worth. From a judgment in the court below both roads have appealed, and by separate briefs present numerous assignments of error. We will not attempt to consider these assignments separately, but will dispose of them in a general discussion of the questions raised thereby.

The hogs were shipped for exhibition at the Ft. Worth Stock Show, and appellee recovered $225 damages for failure to get the first premium of $300, his hogs having taken second premium of $75, which he claimed he would have received but for the effect of delay in the shipment on the appearance and condition of Ms hogs. Appellants assert by various assignments that such damages are not recoverable because they are too remote and speculative.

An analysis of the authorities on this question may be found in Sutherland on Damages (4th Ed.) § 71. According to this authority, it is now the rule in England, established by the case of Chaplin v. Hicks (1911) 2 K. B. 786, that, where one by the wrongful act of another is deprived of the opportunity of competing in a contest where prizes are to be awarded to successful contestants, he may recover the value of the opportunity to compete. In the case of Adams Express Co. v. Egbert, 36 Pa. 360, 78 Am. Dec. 382, it was recognized that the plaintiff, in a proper case, might recover the value of his opportunity to compete, where by wrongful act the defendant deprived the plaintiff of this opportunity. In the case of Ft. Worth & Denver City By. Co. v. Ikard Co., 140 S. W. 502, where the plaintiff had recovered $110, “for damages sustained in the loss of prizes which it was claimed the cattle would have taken,” it was held that:

“Under the pleadings and evidence the defendant was not entitled to recover the damages for loss of prize money.”

In the case of Western Union Telegraph Co. v. Crall, 39 Kan. 580, 18 Pac. 719, it was held that:

“No damages ought to have been allowed, based upon the probability of the horse being able to win prizes in trotting races.”

Frequently preparations are made at considerable expense for entry in exhibitions and contests, where prizes and premiums are to be awarded, and it appears to us that the chance which a competitor has of being awarded a prize or premium in such contest is a right which may be of value, and that one wrongfully impairing or destroying such right ought to be held liable therefor in damages.

It is true that it is difficult to determine the value of this chance, but ordinarily difficulty in ascertaining the amount of damages resulting from the violation of a right is not an insuperable obstacle to recovery. The chance might be worth little or nothing, or it might be worth, under some circumstances, the full amount of the premium offered for the best of the class in which plaintiff was to be a competitor. In such a case, evidence as to all such matters as would tend to show the probability that the plaintiff would be successful in the competition would be admissible, and, as one of the judges in the English case says, it would then be left to the good sense of the jury trying the case to determine the value of the plaintiff’s chance in the competition. If any recovery in such cases can be had at all, it would evidently be only on this theory, and not on the theory on which plaintiff proceeded in this case.

The testimony of the plaintiff, and one other witness, that the hogs would have taken the premium, was inadmissible. Under any theory of recovery of such damages, such testimony would be inadmissible as being a conclusion, and the testimony should be confined to a statement of the facts, so that the jury might reach its own conclusion as to such matter.

Such damages are, of course, special, and the defendants would not be liable tin-less at the time of the making of the contract for carriage they had such notice as would charge them with knowledge that damages of such a character might be reasonably anticipated as a result of the wrongful breach of the contract. The petition charges that the plaintiff notified the Kansas City, Mexico & Orient Railway Company that the hogs were being shipped to Ft. Worth for exhibition at the National Feeders’ & Breeders’ Show, and the evidence supports this allegation. We think this general notice was sufficient as to the Kansas City, Mexico & Orient Railway Company, as it is not necessary in such cases that the parties sought to be charged be informed of all of the details of the particular situation of the other party to the contract, and of the damages that might result from a breach. Sutherland on Damages, 969, 970; Western Union Telegraph Co. v. Edsall, 74 Tex. 329, 12 S. W. 41, 15 Am. St. Rep. 835; Western Union Telegraph Co. v. Turner, 94 Tex. 304, 60 S. W. 432; Western Union Telegraph Co. v. Sheffield, 71 Tex. 570, 10 S. W. 752, 10 Am. St. Rep. 790.

If the shipment had been made on a through bill of lading issued by the Kansas City, Mexico & Orient Railway Company, and acquiesced in by the Ft. Worth & Denver City Railway Company, the latter road would have been bound by the notice to the former. R. S. arts. 731, 732. Or, if the contract was a joint contract, each of the defendants would be bound by the knowledge of the other. G., C. & S. F. Ry. Co. v. Nelson, 139 S. W. 81. However, the record shows that a separate contract was made with the Denver far shipment from Chilli-cothe, at which point it received the shipment from the Kansas City, Mexico & Orient, and the shipment would not come within the provisions of the statute above referred to. G., H. & S. A. Ry. Co. v. Jones, 134 S. W. 328; G., C. & S. F. Ry. Co. v. Short, 51 S. W. 262; S. A. & A. P. Ry. Co. v. Turner, 42 Tex. Civ. App. 532, 94 S. W. 214; Elder, Dempster & Co. v. St. Louis & S. W. Ry. Co., 105 Tex. 628, 154 S. W. 985. Notice therefore to the Kansas City, Mexico & Orient Railway Company would not ibe sufficient to charge the Ft. Worth & Denver City Railway Gompany, and it would not be liable for special damages unless notice to it was shown at the time of the making of the contract of shipment with it.

The fact that plaintiff did not expect to put the hogs on the market immediately upon their arrival at Ft. Worth would make no difference in the application of the ordinary rule for assessing actual damages for negligence in the shipment. G., C. & S. F. Ry. Co. v. Stanley, 89 Tex. 42, 33 S. W. 109; P. & N. T. Ry. Co. v. Holmes, 177 S. W. 507; M., K. & T. Ry. Co. v. Mulkey & Allen, 159 S. W. 111. The allegations, therefore, and proof of what the hogs sold for several days after their arrival at Ft. Worth and after they had been placed on exhibit at the stock show, would not furnish the proper facts for assessing such damages, and the testimony as to the weight of the hogs some days after their arrival at Ft. Worth would only be admissible for the purpose of ascertaining their weight upon arrival and in connection with testimony that would show the treatment they received in the interim and its effect on their weight. If appellee was present and saw the hogs weighed, and thus knew their weight, he could testify to such fact; but, if he depended for his knowledge upon information gained from others, the testimony would he hearsay and inadmissible.

The amount awarded as the actual and direct damages is not sustained by the evidence. It was alleged that the hogs lost 25 pounds per head and the value thereof depreciated 25 cents per hundredweight. While there was evidence as to the loss in weight, caused by the delay, there is no evidence as to the depreciation in value per hundredweight of the actual weight of the hogs on arrival, and as the judgment is for more than the amount that the total weight of the hogs lost would be, figured at the highest price per pound, the verdict is to the extent of such amount excessive under the evidence.

Reversed and remanded.
      <g=s>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    STEWART v. WATTS et al.
    (No. 7416.)
    (Court of Civil Appeals of Texas. Galveston.
    June 23, 1917.)
    1. Continuance <&wkey;23 — Grounds — Absent Witnesses — Materiality ov Testimony.
    In action on notes given by a husband and his partner for a release of the wife’s dower, continuance was properly refused when asked to secure testimony of absent witnesses which would show that the partnership was dissolved prior to the giving of the notes; the defendants being liable regardless of whether the sale was to the partnership or to themselves individually.
    2. Dower <&wkey;28 — Inability for Debts.
    Where a husband and his partner bought the wife’s dower interest, her action on notes for the purchase price could not be defeated by partnership debts.
    Appeal from District Court, Harris County; J. D. Harvey, Judge.
    Action by Jimmie Lee Watts against W. C. Stewart and W. A. Jones. Judgment for plaintiff against both defendants, and for defendant Jones against Stewart, and Stewart appeals.
    Affirmed.
    Cooper & Merrill, of Houston, for appellant. D. E. Rowe, of Houston, for appellee Watts. W. A. Rowe, of Houston, for appel-lee Jones.
   PLEASANTS, C. J.

This suit was brought by appellee against appellant, Stewart, and W. A. Jones, to recover upon four—

“promissory notes in the sum of $300 each, due 6, 12, 18, and 24 months, respectively, alleged to have been executed by W. A. Jones and the Appellant, W. C. Stewart, the plaintiff alleging that she was the wife of W. A. Jones at the time the notes were executed, and that they were executed and delivered to her in settlement and in consideration of the conveyance of her interest in the community property of herself and Jones to the appellant, W. C. Stewart; that she had, subsequent to the execution of the notes, been divorced from W. A. Jones, and her maiden name of Jimmie Lee Watts restored to her; that said notes were payable on their face at Corpus Christi, Nueces county, Tex., but that W. A. Jones was a resident of Harris county, Tex., and suit was brought in Harris county. The appellee, W. A. Jones, filed an answer, admitting the allegations contained in plaintiff’s petition, and a cross-action over against the appellant, W. C. Stewart, claiming that before the execution of the notes it was understood and agreed between himself and Stewart that all of the community property of the said Jones and the appellee should be conveyed to the said Stewart, and that the said Stewart should pay the notes so executed and given to his wife, and that he was to be protected from the payment of said notes by the said Stewart.”

In addition to a general demurrer and general denial the answer of appellant, Stewart, sets up tbe following defense:

“(a) That said notes at the time they were executed and given to the plaintiff bore no interest, and that they had been subsequently changed, without his consent, to bear interest from date.
• “(b) That prior to the execution of said notes, the appellant and W. A. Jones had been engaged in the real estate business as partners under the firm name of Stewart Realty Company, and that about the time of the execution of said notes they had had a dissolution of said partnership business, and appellant, in undertaking to make up the assets of said partnership, was induced to believe that the partnership assets were of the reasonable value of $6,000, and that the said Jones’ interest therein would aggregate $3,000. That no definite and final ascertainment of its partnership business was had, it being agreed and understood that such final settlement should be had upon a more thorough and accurate investigation, but upon such partial dissolution and settlement appellant agreed to pay the said Jones $3,000. That the said Jones had charge of the office and of the business of the Stewart Realty Company, and was thoroughly familiar with the same, and that the appellant was absent from the business considerably, and was not thoroughly familiar with the same, and that after such settlement it was ascertained that there were numerous obligations of said partnership unpaid, which had not been taken into consideration in estimating the assets of said partnership, and that when such obligations were paid, the community estate of the said Jones in said partnership was not $3,000, but was much less, and prayed that if the consideration for the notes was, as alleged by plaintiff, a settlement of her community interest in the estate of herself and husband, W. A. Jones, that such consideration had totally failed, and that such community estate did not exceed the sum of $1,500, and that the total interest that she held and had in said estate could and would not exceed $750, and that she had been paid $300 in cash at the time the notes were executed.
“(c) Specially pleaded that said settlement between the defendant Stewart and Jones was not a complete and final settlement, but was only a partial settlement; it being distinctly agreed and understood between the parties that other debts and obligations against said partnership might exist which has not been taken into account in said settlement, and that if they were so found to exist; the interest of the said Jones and wife in such event would be bound by and charged with one-lialf of all such obligations, and then proceeded to set up and show that some $3,000 indebtedness against said partnership developed after such settlement, of which the said Jones’ interest should have been charged with one-half, and the plaintiff’s interest in said community estate reduced in like proportion, and that on account of these facts, the plaintiff was to be charged with one-fonrth of said indebtedness as had been paid by the appellant on account of said partnership business, and that he was entitled to recover over against said Jones and wife one-half of all of such sums as he had been compelled to pay for said partnership, alleging the amounts to be in excess of $3,000.
“The appellee Jimmie Lee Watts filed a supplemental petition in reply to this answer, excepting to the same upon numerous grounds, and pleading a general denial to said answer, and entered a special denial as to the alteration of said notes, and specially pleaded that she had made no agreement to pay any of the debts of the community estate of herself and husband, and has not been advised that any such indebtedness existed, but that the community interest of herself and. husband in the Stewart Realty Company was of the reasonable value of $5,000, and that she was entitled to recover $2,500, but that instead thereof she had only received $1,500, and that the appellant, Stewart, practiced this fraud and deceit upon her by representing the value of the same to be less than it was, and further specially answered, denying that there was any indebtedness of the partnership to P. J. Kunkill, and that the other items charged was the individual property of the said Stewart, and pleaded a special denial as to every allegation made by the appellant.”

The trial in the court below without a jury resulted in a judgment in favor of plaintiff against both defendants for the principal, interest and attorney’s fees due upon the notes and in favor of Jones against appellant for any amount that Jones might be compelled to pay on the judgment in favor of plaintiff.

The evidence shows that on January 8, 1914, appellee Jimmie Lee Watts, who was then the wife of appellee W. A. Jones, by a deed in which her husband joined, conveyed to appellant for a recited consideration of $1,500 certain property the title to which at the time of said conveyance was in W. A. Jones and the Stewart Realty Company, a firm composed of appellant and W. A. Jones. On January 1, 1914, Jones and wife had agreed to separate permanently, and Jones had agreed to settle with her for her one-half interest in their common property. Jones informed his partner of his agreement to settle with his wife, and requested him to see what settlement he could make with her. Stewart went to Mrs. Jones and offered to give her $1,500 for her interest in the community property of .herself and husband, including her interest in the Stewart Realty Company. She accepted this offer, and the deed above mentioned was executed and delivered, and Stewart paid her $300 and executed and delivered to her the four notes sued on, which were also signed by W. A. Jones. When the notes were first delivered to Mr. Jones, they did not provide for the payment of interest. She did not know that they did not provide for the payment of interest. She made this discovery a short time after she had received the notes at appellant’s office, and immediately returned to the office and told Jones she would not accept notes which did not bear interest. Jones took the notes to appellant, and with his consent inserted a promise for the payment of interest and redelivered them to Mrs. Jones. At the time this settlement was made Mrs. Jones did not know what property was owned by the Stewart Realty Company, and had no information as to the value of her interest in the community estate of herself and husband. She relied upon the statement of appellant that her interest was not worth more than $1,500. The value of the property owned by the firm at that time was from $8,000 to $10,000. About this time Jones sold his interest in the firm to Stewart for a consideration of $4,300. Jones testified that the firm was dissolved about February 1,1914. Some time after these transactions, Jones and wife were legally divorced, and her maiden name of Jimmie Lee Watts was restored to her. The four notes given her by appellant and Jones have not been paid, nor any part thereof. By an amended petition filed on the day before the trial, the plaintiff alleged that the sale of her interest, while made to appellant by the terms of the deed, was, in fact, made to Stewart Realty Company.

The first assignment of error complains of the refusal of the court to grant appellant’s motion for a continuance to enable appellant to obtain the testimony of several named witnesses by whom he could prove that the Stewart Realty Company was dissolved prior to the eighth day of January, 1914. There is no merit in the assignment. The testimony sought to be obtained from the absent witness did not affect any material issue in the case. It matters not whether Mrs. Jones sold her interest in the property to appellant individually or to him for the benefit of the firm; she sold it relying entirely upon appellant’s representations as to its value. Appellant executed the notes given in part payment therefor, and is liable on said notes, regardless of whether the property was purchased for the firm or for himself. The evidence justified the conclusion that the amount appellant agreed to pay was less than the value of Mrs. Jones’ interest after deducting all of the debts of the firm. But if the evidence was otherwise Mrs. Jones could not, in the absence of allegations and proof of fraud or mutual mistake, be hel& liable for any portion of said debts.

The second and third assignments assail the judgment on the ground that the evidence shows that the interest of Mrs. Jones in the community estate of herself and husband was not worth more than the sum of $750, and that the consideration of the notes had failed to the extent of $750, and judgment should not have been rendered for the full amount of the notes. Our statement of the facts before made shows that these assignments are wholly without merit.

Our finding of fact that the change in the rate as originally written, by which the payment of interest was inserted, was made with the consent of appellant disposes of the only-remaining assignment of error.

As we view the record, there is absolutely no merit in the appeal. The judgment of the court below is affirmed.

Affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COLE et al. v. MALLORY S. S. CO.
    (No. 7436.)
    (Court of Civil Appeals of Texas. Galveston.
    June 21, 1917.)
    1. Appeal and Error <&wkey;395 — Appeal Bond —Necessity.
    In an action by an administratrix and others, where a general demurrer was sustained and the petition dismissed, the plaintiffs all gave notice of appeal; but, no appeal bond being given, only the administratrix is before the appellate court:
    2. Master and Servant <&wkey;388 — Injuries to Servant — Actions—Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4698, declares that an action for wrongful death shall be for the sole and exclusive benefit of the surviving husband, wife, children, and parents of the person whose death shall have been caused, and the amount recovered shall not be liable for the debts of the deceased. Article 5246Ü, which is part of the Workmen’s Compensation Act, declares that employes whose employers are not subscribers and representatives and beneficiaries of deceased employes working at the time of injury for nonsubscribing employer cannot participate in the benefits of the insurance association, but they may recover judgments against such employers, or any of them, for damages sustained by reason of any personal injury received in the course of employment or by reason of death resulting from such injury. Held, that article 5246Ü did not allow an action by an administratrix for the benefit of the heirs of an employé killed in the course of his employment, but the right of action was restricted to the persons named in article 4698.
    3. Death <&wkey;31(3) — Executors and Administrators <&wkey;51 — Right op Action by Administrator.
    As Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4698, declares that the action for wrongful death shall be for the sole benefit of certain persons and the amount recovered shall not be liable for the debts of the deceased, such recovery does not become part of the assets of the deceased, and an administratrix cannot maintain action therefor.
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by Mattie L. Cole, administratrix of the estate of Albert Cole, deceased, and others, against the Mallory Steamship Company. From a judgment of dismissal, plaintiffs appeal.
    Affirmed.
    O. S. York, of Galveston, for appellants. Terry, Cavin & Mills, of Galveston, for ap-pellee.
   LANE, J.

This suit was originally instituted by George C. Cole and Harriet Wesson, brother and grandmother, respectively, of Albert Cole, deceased, against the Mallory Steamship Company, a corporation, for damages by reason of the death of Albert Cole, alleged to have been caused through the negligence of the defendant, while said Albert Cole was at work for defendant. Plaintiffs alleged in their petition that the said Albert Cole, at the time of his death was a single man without issue, and that plaintiffs were his sole heirs at law. They also alleged that at the time of the death of said Albert Cole, defendant was not a “subscriber,” as that term is used in articles 5246h, 5246i, 5246Ü, etc., Vernon’s Sayles’ Civil Statutes of 1914, composing what is known as the “Workman’s Compensation. Act of Texas,” and that they brought their suit under article 5261ii of said act. Their prayer was for a recovery under article 5246kk of said Compensation Act.

During the pending of the suit Mrs. Mattie L. Cole caused to be filed in said cause a paper, indorsed, “First Amended Petition to Make Parties.” It is alleged therein that Mattie L. Cole is the duly qualified adminis-tratrix of the estate of Albert Cole, deceased, and she makes herself a party plaintiff as such administratrix, and asks that the cause be continued in her name as such adminis-tratrix, for the benefit of George C. Cole and Harriet Wesson.

“Then follow allegations substantially the same as to the death of said Albert Cole and the alleged negligent acts of the Mallory Steamship Company claimed to have caused his death, the amended petition also praying for compensation for the death of the deceased in the same manner and for the same amount as in the original petition, and alleging as in the original petition that the action is brought under article 5246Ü of the Workman’s Compensation Act, page 3470, Vernon’s Civil Statutes. We think it is apparent from the amended petition that it was intended by the pleader that the original parties plaintiff Harriet Wesson and George C. Cole and Mattie L. Cole, as administratrix of Albert Cole’s estate were all to be treated as plaintiffs in the cause.”

The defendant, among other things answered by general demurrer as follows:

“Now comes Mallory Steamship Company, defendant in the above entitled and numbered cause, and excepts and demurs to plaintiff’s original and amended petitions filed herein, for that the same show no cause of action against this defendant, and on the contrary show that neither of the plaintiffs has any cause of action against this defendant on account of the matters and things alleged in said petition.”

The general demurrer was by the court sustained, and upon the refusal of plaintiffs to amend the cause was dismissed. Ftom this order of dismissal all the plaintiffs gave notice of appeal.

There was no motion for new trial filed in the trial court, nor was there any appeal bond filed by any of the plaintiffs, nor was there any assignment of error filed in the trial court. It is therefore apparent that the only party plaintiff, before this court by virtue of the notice of appeal given, is the administratrix, Mattie L. Cole, and that the only question presented for our consideration is whether or not the court erred in dismissing said cause upon general demurrer.

The contention of appellant in effect is that by the enactment of the Workman’s Compensation Act, and especially article 5246Ü thereof, the Legislature in effect repealed article 469S of Vernon’s Sayles’ Civil Statute, and that the term “legal beneficiary, Or beneficiaries,” used in article 5246Ü of the Compensation Act, means legal “heirs” as such under the statute of descent and distribution, and not the persons named in said article 4698. The two articles referred to, 5246Ü and 4698, read as follows:

“Employés whose employers are not at the time of injury subscribers to said association and the representatives and beneficiaries of deceased employés who at the time of injury were working for nonsubscribing employers cannot participate in the benefits of said insurance association, but they shall be entitled to bring suits, and may recover judgment against such employers, or any of them, for all damages sustained by reason of any personal injury received in the course of employment, or by reason of death resulting; from such injury, and the provisions of section 1 (article 5246h) of this act shall be applied in all such actions.”
“Art. 4698. For Whose Benefit Action to he Brought. — The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been caused, and the amount recovered therein shall not be liable for the debts of the deceased.”

In this connection, we are unable to agree with appellant. We cannot think that it was the intent or purpose of the Legislature by the enactment of article 5246Ü to take from the persons named, in article 4698 in some cases the right conferred on them by that article, and confer it upon others, such as brothers and sisters, or grandparents, who may be, under the statute of descent and distribution heirs of a deceased relative for whose death recovery is sought, and who prior to the passage of said article 5246Ü had no right to recover for the loss of such relative by reason of the negligent act of another.

We think the term “legal beneficiaries’! as used in said Compensation Act means the persons named in article 4698; that is, surviving husband, wife, children, add parents: of the person whose death shall have been caused, and as neither of the plaintiffs in this cause are such persons, they have no right of recovery under their pleadings, and the court did not err in so holding and in' dismissing the cause upon demurrer. Vaughan et al. v. Southwestern Surety Ins. Co. et al., 195 S. W. 261, decided by the Beaumont court on the 26th day of April, 1917, opinion not having been yet officially published. We cite the above-mentioned opinion with approval and as settling the contention of appellant adverse to her.

The main question presented for our decision in the case was in the opinion fully, ably, and exhaustively discussed, and, having cited the same with approval, we pretermit any further discussion of the question therein decided, which we have only very briefly discussed herein.

We have already shown that Mrs. Mattie L. Cole, administratrix, is the only person before this court by appeal, in the absence of an appeal bond. Aside from sustaining appellee’s contention upon the matters already discussed, we think the court properly sustained the demurrer to the ad-ministratrix’s petition, for the reason that such rights as arose out of the matters complained of, by the very terms of the law under which recovery is sought, is vested absolutely in the beneficiaries named in said law, and not in the estate of the deceased. This being true, then it necessarily follows that the administratrix of the estate of the deceased have no interest in the funds sought to be recovered, and consequently cannot maintain an action to recover it. Smith v. Southern Surety Co., 193 S. W. 204. In citing this case (case last cited) we desire to state that the same was rendered by this court, and we now discover that, through oversight or inadvertence, we made use of the term “legal heirs” instead of “legal beneficiaries,” as intended.

The judgment of the trial court is affirmed.
      fcsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LEE v. ZIELINSKI.
    (No. 7443.)
    (Court of Civil Appeals of Texas. Galveston.
    June 21,1917.)
    Appeal and Error <®=745 — Consideration oe Assignment — Statute and Rules of Court.
    Where an examination of the record shows that the single assignment of error was not filed in the pourt below, either in the motion for new trial or otherwise, the assignment cannot be considered under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, rule 67 for the District and County Courts (142 S. W. xxii), and rule 24 for the Courts of Civil Appeals (142 S. W. xii).
    Appeal from Fayette County Court; George Willrich, Judge.
    Suit between Mike Lee and Dr. A. J. Zielin-ski. From the judgment, Dee appeals.
    Affirmed.
    H. R. Clark, of La Grange, for appellant. Edw. H. Moss, of La Grange, for appellee.
   GRAVES, J.

Upon this appeal there is but one assignment of error contained in the record; objection to our consideration of that is presented, on the ground that it was not filed in the court below, either in the motion for new trial, or otherwise; an examination of the record shows the objection to be well taken, and the assignment cannot be considered. Vernon’s Sayles’ Statutes, art. 1612, rule 67 for District and County Courts (142 S. W. xxii), and rule 24 for Courts of Civil Appeals (142 S. W. xii).

A reference to the statement of facts, however, disclosed that the evidence was sufficient to support the judgment rendered, and in this state of the record nothing is before this court for review.

The judgment will therefore be affirmed.

Affirmed.
      <c^Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes