author: SPEER, J.

text:
    FT. WORTH & D. C. RY. CO. v. COPELAND.
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 20, 1913.
    On Motion for Rehearing, Jan. 24, 1914.
    Further Rehearing Denied Feb. 28, 1914.)
    1. Master and Servant (§ 217) — Injuries to Servant — Assumption op Risk.
    An experienced switchman thoroughly familiar with the work at which he was engaged, and with the customary methods of doing the work, assumes the risk of injuries resulting from the ordinary and customary switching of cars.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    2. Master and Servant (§ 204) — Injuries to Servant — Assumption op Risk — Feder-ad Statute.
    The federal Employers’ Liability Act does not abolish the defense of assumption of risk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 544-546; Dec. Dig. § 204.]
    On Motion for Rehearing.
    3. Appeal and Error (§ 1178) — Determination — Remand.
    Under Rev. St. 1911, art. 1626, providing that, when the judgment of the court below shall be reversed, the court shall render such judgment as the court below should have rendered, except when it is necessary that some matter of fact be ascertained, a judgment for plaintiff will not be reversed without remand, where plaintiff, by amending his pleadings, might possibly state and prove a good cause of action, this being- so, even though the ease stated in the pleadings was fully developed, and the evidence showed that plaintiff was not entitled to recover on that cause of action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. § 1178.]
    Appeal from District Court, Wicbita County; P. A. Martin, Judge.
    Action by Willis Copeland against tbe Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded, with instructions.
    Carrigan, Montgomery & Britain and Cbas. C. Huff, all of Wicbita Falls, and Thompson & Barwise, of Ft. Worth, for appellant. Mathis & Kay, of Wicbita Falls, for appellee.

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

   SPEER, J.

Willis Copeland sued tbe Ft. Worth & Denver City Railway Company to recover damages for personal injuries sustained by him while in tbe service of tbe defendant company as switchman, and while engaged in its yards at Wicbita Falls in the work of switching some cars engaged in interstate commerce. Tbe plaintiff bad a judgment for $17,000, and tbe defendant has appealed.

A brief statement of the facts will suffice for the purposes of this opinion: At tbe point in appellant’s yards where tbe accident occurred, tbe company has several tracks known, respectively, as tracks No. 1, No. 2, and No. 3, paralleling its main line, each of which is reached from tbe main line by a track known as the “south lead.” Two crews known, respectively, as the north and south yard crews were at work in the yards exchanging cars of freight, and otherwise shifting cars from one track to another. Appellee belonged to tbe north crew, and was what is known as “fieldman” of that crew. In tbe discharge of bis duties, be was in tbe yards about track No. 2 in tbe vicinity of a detached ear known as I. & G. N. car No. 2550, about 175 feet north of where track No. 2 leaves tbe south lead line. He bad received information from one Miller, tbe foreman of tbe south yard crew, that Ben Smith’s crew, to which appellee belonged, was in tbe north yards, and would push bis train through on track No. 2. In anticipation of Smith’s pushing through, appellee went to tbe north end of I. & G. N. car No. 2550 to prepare tbe coupler ready to couple that car onto Smith’s train, and, while engaged in that task, a string of three cars, which had been detached and kicked in on track No. 2 from the south by Foreman Miller, struck the I. & G. N. cay, knocking appel-lee down and injuring him in the manner alleged in his petition.

The grounds of negligence alleged and submitted as a basis for recovery were: Eirst. That the three cars were lacked in free from care and control; second, that they were so kicked in at too high a rate of speed, causing too great an impact with the standing car; and, third, a failure to notify or inform appellee that this cut of three cars would be kicked in onto track 2.

The appellant requested three several charges withdrawing from the consideration of the jury the issues made by these three alleged grounds of negligence. We have carefully considered the evidence bearing upon each of these issues, and are of the opinion these charges should have been given and each of the issues withdrawn from a consideration of the jury; in effect, that a summary instruction should have been given for the defendant company.

As to the first issue—that is, that the company was negligent in kicking the three cars in on track 2 free from care and control—we find that such cars were cut loose from Foreman Miller’s train, and to use the language of the yards, were “shunted in” on track No. 2, free from care and control in the sense that no employé was stationed on said cars, or either of them, or about them, to control their movements, but all the evidence, without dispute, shows that this was the usual and customary way of doing such work, and there is no evidence that the same ever was done, or should have been done, in any other way.

As to the second ground—that is, that the cars were propelled at too high a rate of speed—there is no testimony estimating the speed at more than five to six miles an hour at the time the cut was made, and the witnesses giving this testimony further stated that- this speed would decrease, and did decrease, as the cars rolled north along the track toward appellee. No witness testified that this was an unusual or an unnecessary speed, or that the same was dangerous. Ap-pellee’s testimony, showing that the cars, after striking and knocking him down, rolled some distance further before stopping, could at most constitute only a scintilla of evidence, but lacks that definiteness necessary to support a judgment, to the effect that the speed at which the cars were thrown onto the track was a negligent one.

With respect to the third ground of negligence—that is, that appellee was given no warning of the approach of the cut of cars— we find that such warning was not given; but the undisputed facts further show that it was not customary or usual to give such warning. There was no rule of the company requiring it, and no witness testified that that duty devolved upon Miller, or any one else for the company. In short, upon all the issues submitted, we find that the acts and conduct of appellant were not negligent, but were done and performed in the usual and customary manner with appellant and other railroads for doing such things. Moreover, the evidence shows, without dispute, that appellee was an experienced switchman, and thoroughly familiar with the work at which he was engaged, and thoroughly familiar with the customary methods of doing the work which he was engaged in doing at the time he received his injuries, and therefore conclude that he assumed the risk of the injuries received by him. He knew that such cars as were lacked in by the various crews onto these side tracks were not under the control and care of an employé, that necessarily and customarily they were kicked in at different rates of speed, sometimes barely reaching the desired destination, and again going much farther, because of the impossibility of gauging accurately the speed necessary to send the detached cars the proper distance, and furthermore knew that, under such circumstances, no warning was given to the fieldman engaged about the tracks.

A point is made by appellee that, under the operation of the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322] Fed. Statutes, Anno. Sup. 1909, p. 584), the defense of assumed risk is abolished, but we have recently held otherwise. Freeman v. Powell, 144 S. W. 1033; Id., 105 Tex. 317, 148 S. W. 290.

For the error of the court in refusing appellant’s requested charges, the judgment of the district court is reversed, and judgment here rendered in favor of appellant.

On Motion for Rehearing.

We are asked by appellee to remand the cause for another trial in the event we adhere to our former conclusion to reverse the judgment for the insufficiency of the evidence.

We are quite thoroughly of the opinion the motion should be overruled on the merits of the case, but, as to whether the cause should be remanded or here rendered, we have had more difficulty. Article 1626, Revised Statutes 1911, provides: “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below.” It is the contention of appellant that the language of this article is mandatory, and that, since under the pleadings and evidence the trial court should have instructed a verdict for it, for a refusal to do which this court has reversed the judgment, it becomes the duty of this, court to render judgment in its favor. On the other hand, it is the contention of appellee that the cause should be remanded, to enable him to amend his pleadings and to seek a recovery upon the ground of the negligence of the appellant in .maintaining a defective coupler, in violation of the federal Employers’ Liability Act, a ground not relied on in the last trial. It has been often held, in a general way, that, where a ease has been fully developed in the trial court, and where, as matter of law, under the pleadings and evidence, one party is entitled to a judgment, it becomes the duty of the Court of Civil Appeals, on reversing a judgment in favor of the other, to render such judgment as the trial court should have rendered below. And in this connection some of the authorities have spoken of the article of the statute above quoted as being mandatory. H. & T. C. Ry. Co. v. Strycharski, 92 Tex. 1, 37 S. W. 415; Tillman v. Erp, 121 S. W. 547; Stevens v. Masterson, 90 Tex. 417, 39 S. W. 295, 921; M., K. & T. Ry. Co. v. Moses, 144 S. W. 1039. All of the authorities, however, and even the statute itself, require the cause to be remanded rather than rendered, when it is necessary that some matter of fact be ascertained, and the question of difficulty presented is whether or not a cause will be remanded to enable a plaintiff to amend his pleadings in order to ascertain such necessary fact. We have finally concluded that the proper practice is to remand.

It is to be observed that the statute, in authorizing or requiring the remanding of a case when it is necessary that some matter of fact be ascertained, does not necessarily convey the idea that the parties, on a remanding of the case, will be limited on another trial to the issues raised by the pleadings already filed. The ends of justice would call as loudly for the remanding of a cause to ascertain a necessary fact, where that fact, to be legally ascertained, would have to be pleaded for the first time, as though it could be ascertained without such amendment. We think the statute in spirit contemplates only that, where a case has been fully developed in the trial court, both in the pleadings and the evidence, and it is apparent, as matter of law, that only one judgment could be sustained, that the appellate court should proceed to render that judgment. But, where from the facts it reasonably appears that on another trial the plaintiff may make a case, or the defendant establish a defense, even though a new pleading should be required, the ends of justice require that such cause, on being reversed, should be remanded, and the party given an opportunity to develop his ease or present his defense. We are not at all without authority for this position.

In Wilkin v. Owens, 102 Tex. 197, 114 S. W. 104, 115 S. W. 1174, 117 S. W. 425, 132 Am. St. Rep. 867, the grantee of certain heirs owning land sued the purchaser at an irregular administrator’s sale, and recovered the land. The defendant in the action was denied the equity of subrogation as to the payments made to the administrator, because such right was not pleaded, and the Supreme Court, after reversing the judgment which he had recovered in the district court first rendered judgment against him, but later, on his motion for rehearing, remanded the cause, to enable him to amend his pleading so as to claim the money paid the administrator for the land as a condition to its recovery. In Houston, etc., Ry. Co. v. State, 24 Tex. Civ. App. 117, 56 S. W. 228, the practice in this court was indicated by Justice Stephens in the following language: “We would not reverse a judgment to enable a party to plead and prove a new issue, but, in reversing judgments, we have in several instances declined to exercise our power to proceed to render judgment, where it seemed probable that the ends of justice would be better subserved by remanding the cause for a new trial.” The cause was there remanded to afford one of the parties an opportunity to amend his pleadings. In K. C., M. & O. Ry. Co. v. Pope, 152 S. W. 185; Id., 153 S. W. 163, this court sustained an appellant’s assignment that a verdict should have been instructed in its favor, and reversed a judgment against it, yet we remanded the cause for the obvious purpose of enabling the plaintiff in the action to amend the cause of action. On rehearing of that cause, we said: “No judgment other than one for the defendant could have been rendered, since the case pleaded was not proved, and the case proved was not pleaded.” Bemanding the case, therefore, could have meant nothing less than that, in our opinion, the ends of justice required such course, and that the statute quoted above did not forbid.

Appellee’s motion for rehearing is therefore granted, to the extent that the cause is remanded for another trial, with instructions that, if on another trial the pleadings and evidence are the same as they were on the last trial, the court will instruct a verdict for the defendant


source: Caselaw Access Project

author: PLEASANTS, O. J.

license: Public Domain

text:
    In re BARTELS’ ESTATE. JONES v. MILAM et al.
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 30, 1914.
    Rehearing Denied Feb. 26, 1914.)
    1. Wills (§ 55) — Testamentary Capacity— Sufficiency of Evidence.
    Evidence in a will contest held not to sustain a finding by the jury that the testatrix did not possess testamentary capacity at the time of the execution of either of two wills.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.]
    2. Wills (§ 1) — Nature of Testamentary Power.
    Since the right of the owner of property to dispose of it by will is often of great value, especially to those who are old and infirm and dependent upon others for services and attention, if should be as jealously guarded as any other property right.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § X; Dec. Dig. § 1.]
    3. Wills (§ 82) — Unequal Disposition.
    When a will has been properly executed, it ought not to be set aside because the disposition made is unequal or unfair.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. § 203; Dec. Dig. § 82.]
    4. Wills (§ 50) — Testamentary Capacity— Natube and Measure in General.
    If, at the time of the execution of a will, testator did not have sufficient mental capacity to understand what he was doing, the nature and extent of his property, and the objects of his bounty, it should not be allowed to stand.
    TEd. Note. — For other cases, see Wills, Gent. Dig. §§ 96-100; Dec. Dig. § 50.]
    5. Wills (§ 166) — Undue Influence — Evidence.
    In a will contest, evidence held not sufficient to raise the issue of undue influence.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 421-437; Dee. Dig. § 166.]
    6. Wills (§ 55) — Testamentary Capacity-Evidence — Insane Delusion.
    In a will contest, evidence held not to sustain a finding by the jury that the execution of either of two wills was the result of an insane delusion upon the part of testatrix.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 137-158, 161; -Dec. Dig. § 55.]
    7. Wills (§ 166) — Undue Influence — Evidence.
    Undue, influence cannot be predicated alone upon the fact that the will is unfair or unjust, and consequently unnatural, but there must be, in addition, some evidence, direct or circumstantial, that some person in a position to exercise influence over the mind of testator unduly exercised it.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 421-437; Dee. Dig. § 166.]
    8. Wills (§ 55) — Insane Delusion — Influence on Testamentary Disposition.
    Though testatrix had an insane delusion that she had been told that a daughter, whom she disinherited, would poison her, yet, as testatrix stated she did not believe it, and ate meals prepared by the daughter, the delusion could not have influenced the bequest as to the daughter.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 137-158, 161; Dec. Dig. § 55.]
    9. Wills (§ 55) — Testamentary Capacity— Evidence.
    That testatrix made an inaccurate statement in her will in giving her reason for making a bequest is no evidence of insanity or insane delusion.
    [Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 137-158, 161; Dec. Dig. § 55.]
    10. Wills (§ 330) — Probate—Misleading Instructions.
    In a will contest, an instruction that it was incumbent upon proponent to prove to the satisfaction of the jury that testator was possessed of testamentary capacity was misleading; the requirement that, before a will can be admitted to probate, the court must be satisfied that the testator was of sound mind only affecting the sufficiency of the testimony offered by proponent when considered by itself, and does not change the rule that a jury on conflicting evidence must decide according to the preponderance of the evidence.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 779-781; Dec. Dig. § 330.]
    Appeal from District Court, Harris County ; Norman G. Kittrell, Judge.
    Proceedings by Ira P. Jones, executor, for the probate of the will of Julia Bartels, deceased, in which Annie Milam and husband were contestants. From a judgment refusing to admit the will to probate, the executor appeals.
    Reversed and remanded.
    L. B. Moody, of Houston, for appellant. John Lovejoy, Presley K. Ewing, and L. E. Blankenbecker, all of Houston, for appellees.

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

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

   PLEASANTS, O. J.

This appeal is from a judgment of the district court of Harris county refusing to admit to probate the will of Julia Bartels, deceased, offered for probate by appellant, Ira P. Jones, independent executor of said will. . The probate of the will was contested by the appellee Annie Milam, a daughter of the deceased, herein joined proforma by her husband, J. W. Milam.

The will first offered for probate was dated October 14, 1911. In reply to the contest of this will, appellant prayed, in the alternative, for the probate of a will executed July 8, 1909. Thereupon the appellees filed an amended contest, attacking both wills on the grounds that Julia Bartels was not of sound mind, and was subject to hallucinations and insane delusions, and that the said wills were the result of undue influence. Upon the hearing of the contest in the county court,, it was overruled, and judgment was rendered admitting to probate the will of October 14, 1911. In the district court, to which the cause was carried by appeal, the jury found, in response to special issues, that Julia Bar-tels was not of testamentary capacity at the time of the making of either of said wills, and that there was undue influence brought to bear upon the mind of the testatrix, Julia Bartels, in the making of the will of October 14, 1911, and that both of the wills were the result of an insane delusion on the part of said Julia Bartels. . Upon this verdict, judgment was entered refusing to probate either of said wills.

The accuracy of the following summary of facts disclosed by the record, which is copied from appellant’s brief, is not questioned by appellees: “Julia Bartels died in January, 1912, at the age of about 66 years. She and her husband had a vegetable stall at the market. He abandoned her about the year 1882, and left her with four small children. She took charge of the market, and made a living for her family out of it for many years, but did not accumulate any more property than she had at the time her husband left her. She was a hard worker and a woman of unusually strong mind and strong character. She had four children, viz: Annie (now Annie Milam), Julia (now Julia Sonet), Charles Bartels, and Fred Bartels. Having divided her land into lots and ■blocks, she gave, by deeds, five lots to her daughter Anule, two lots to her daughter Julia, and two lots to her son Charles. She did not deed any property to Fred. The deed to Annie is dated August 14, 1897; the deed to Charles is dated April 9, 1901; and the deed to Julia is dated January 31, 1907. The son Charles drank to excess and was a spendthrift. During the last 13 years of Julia Bartels’ life, Ira P. Jones was her ■attorney. During that time he conducted two important lawsuits for her; in one of which she recovered $4,000, and in the other she recovered the land sued for. She had a great deal of confidence in Mr. Jones, and, when she wanted legal advice, or papers drawn up in regard to property, she relied on him. On July 8, 1909, Julia Bartels, accompanied only by her little 10 year old granddaughter came to town in a buggy, which she tied across the street from Mr. Jones’ office, and then came up to his office in the elevator. Mr. Jones was not in his office at the time, so she waited for him, and in the meantime talked with his stenographer, Miss Eraser. When Mr. Jones came in, she told him that she wanted him to fix up this will. She discussed its provisions with him for about three-quarters of an hour, and he then dictated the will to the stenographer, who wrote it, and it was then read over to her in the presence of the stenographer. The will carried out her wishes as she had expressed them to the stenographer and to Mr. Jones, and the will was then executed and witnessed. The will was dictated to the stenographer in Julia Bartels’ presence, and its contents was the result of suggestion wholly on her part. She then left the office and untied her horse, got into the buggy and drove off. By this will she bequeathed to the three children of her daughter Annie the sum of $500 each, and to her daughter Annie the sum of $5, coupled with the statement that she had previously given her money and property more than she had any other child. The remainder of her estate she divided among her three other children. A little more than two years later, Annie Milam (the contestant) telephoned Mr. Jones that her mother wanted to make another will, and for him to come over and draw it up. Mr. Jones asked Mrs. Milam whether it was urgent for him to come at once, and she said that it was not necessary for him to come immediately; so several days later he went to Mrs. Milam’s house, who directed him to where her mother was living, which is across the street, and told him that her mother was expecting him. Mr. Milam then went over to Mrs. Bartels’ with Mr. Jones, and then returned to his home. Mrs. Bartels then told Mr. Jones that she wanted to have her will rewritten, and he asked her how she wanted to make it, and she said: “You made a will for me something over two years ago, and I want to make it like that will, with the exception that I want to give my daughter Annie $500, instead of $5, as I had in the previous will.” Then she stated that she wanted to give Cetilia Sonet (a granddaughter) a certain house and lot, and that she wanted Fred to have the old homestead, and all of her personal property, household and kitchen furniture, live stock, etc. She then discussed at some léngth the appointment of a trustee for her spendthrift son, and requested Mr. Jones to act as executor. During the following week, Mr. Jones again went to see Mrs. Bar-tels, taking with him a draft of the proposed will, and read it over to her. She at once called his attention to the fact that he had left out the personal property for Fred Bar-tels, and that he had made the will to read that the bequest of the house and lot to Cetilia Sonet was an independent bequest, and that the old home was an independent bequest to Fred Bartels, and she said that that was not the'way she intended; that she wanted the bequest to Cetilia Sonet to come out of her mother’s part, and she wanted Fred to be charged with the homestead as a part of his share. These three things were the only things that he had not gotten right, and she called his attention to each one of them. In the course of the next week, he drew up the will again, and then he went over to her house the third time and read it over to her, and she said it was correct, and that he then understood her and had everything there the way she wanted it. She then requested him to get two witnesses to come with him to her house, so that she could execute the will. He did so, and the will was then read over to her again, in the presence of the witnesses, and was executed by her and signed by them. In discussing the provisions of this will with her, she made this statement in reference to Mrs. Milam: “In my previous will I gave Annie only $5. Annie has been a little better to me lately then heretofore, and I want to increase her bequest to $500.” After the will was read and explained by Mr. Jones, she said: “I thank you, that is just what I wanted; that is right.”

The only differences between the will of July 8,1909, and the will of October 14, 1911, are that in the first will only $5 was bequeathed to Annie Milam, while in the last will she was given $500; in the first will Ce-tilia Sonet is not mentioned, while in the last will she was given a house and lot, the same to be subtracted from her mother’s share; in the last will her live stock, household and kitchen furniture, and wagons are specifically bequeathed to Fred Bartels, whereas this personal property is not mentioned in the first will; in the last will her old homestead is specifically devised to Fred Bartels, to be taken as a part of his share of the estate, whereas, in the first will the old homestead is not mentioned; in the first will Ered Bartels is made trustee for tire share of Charles Bartels, whereas in the last will the Houston Land & Trust Company is substituted as trustee instead of Fred Bar-tels ; and in the last will it is provided that, if any of the devisees contest it, they shall receive no part of the estate, whereas no such provision was contained in the first will. With the above exceptions, the two wills are identical in their provisions.

The statements above set out as to the directions given by Mrs. Bartels in regard to the changes in the will of October 14,1911, are only shown by the testimony of Mr. Jones, who, as before stated, is named as the executor in both wills. The will of July 8, 1909, was witnessed by Miss N. L. Eraser and Ira P. Jones, Jr., both of whom were competent witnesses, and both testified that they signed the will as witnesses at the request of Mrs. Bartels. Both of these witnesses were well acquainted with Mrs. Bartels, and their testimony shows that she was, at the time of the execution of this will, apparently of perfectly sound mind. Jones testified: “I had known Mrs. Bartels at that time 10 or 11 years. Erom what I saw of her at that time, she was very sound of mind, she had a great deal of common sense, and was as rational and as sound as I had ever seen her, and I had seen her a great many times.” Miss Eraser, who was stenographer for appellant, Ira P. Jones, and took down in shorthand and copied the will as dictated to her by Mr. Jones, testified that before Mr. Jones came into the office Mrs. Bartels stated the purpose of her visit, and discussed the will with her. “With reference to her apparent mental condition she seemed to be perfectly intelligent about everything she said, she seemed to be of sound mind.” The witness further says: “I don’t know any particular portion that she discussed with me. She said that she had come up to make her will, and wanted to divide her property equally among her children; she had before made gifts to some of her children who had married, and she wanted to divide her property among the other children equally; she had made gifts to some of the children before. I don’t know that she mentioned which ones she had made gifts to. She wanted to put the portion that she was giving to Charles Bartels in the hands of Ered as trustee; I recollect that distinctly. She said that she didn’t want any trouble after she died; she wanted the children to be perfectly satisfied. She didn’t talk like she expected to die soon. She said that her health was bad. She said she hadn’t been feeling well. For a 'person of her age, I don’t know that she was any more feeble than any one else would be at her age. I say she had been up there quite frequently. She hadn’t always been complaining of being sick. I never heard of her complaining of being sick before. When Mr. Jones came in, she told him that she wanted him to fix up this will. It was about three-quarters of an hour after he came in before I commenced writing it — I imagine it was about that length of time. She and Jones during that three-quarters of an hour were in the private office. After that I took down the dictation — went into his office and took the dictation. She was in his office during that time. * * * The will carried out her wishes as she expressed them to me and to Mr. Jones.”

The will of the 14th of October, 1911, was witnessed by Wm. H. Olschewske, Meyer C. Wagner, and E. A. Sonet. These witnesses all testified that Mrs. Bartels was apparently of perfectly sound mind at that time, that the will was read and explained to her by Mr. Jones, that she understood and expressed herself as fully satisfied with it, and requested them to sign it as witnesses.

Olschewske testified: “At that time I had known Mrs. Bartels 20 years or more. I saw her before that time quite frequently — not before the 20 years, but before the will was executed. Judging by what I had known of her for the last 20 years, she certainly was of sound mind. When I went there I went with Mr. Jones and Mr. Wagner at the request of Mr. Jones. When I went into the room, Mrs. Bartels recognized me; she shook hands with me and talked with me, and we talked of things that happened previous to this — made a social visit in talking with her.”

Wagner testified: “At the time she executed this will, from my observation of her manner and how she appeared to be, I am prepared to state whether she was in one condition of mind or another. Her mental condition appeared to be good, sound.”

The evidence shows that Mrs. Bartels died of Bright’s disease, and that she had suffered from that disease for several years before her death. She gave up her stand at the city market in 1902, and did not engage in business after that time. She had been troubled with swelling of her lower limbs before she quit business, and, as one of the appellees’ witnesses expressed it, “she was crippled up with dropsy a great deal for 10 years before her death.” Both of the appel-lees testified that her physical condition affected her mind, and that, as the disease progressed, her mental condition became worse, and both of these witnesses expressed the opinion that she was not of sound mind for three or four years' before her death.

The substance of Mrs. Milam’s testimony is as follows: “I saw my mother, say, ever since I have been born; every week or every few days since I was married; when I lived close, every day. During the latter portion of her life, I lived right across the street. I lived right across the street ever since she came back to Fred’s; that was along in 1911, in June. * * * I say my mother came back there in 1911, after she left Mrs. Minster’s. During that time I prepared the meals for my mother, part of the time; but every day — every morning — I taken her breakfast or sent it to ber, and sbe would wait for it. Sometimes I would be a little late, but sbe would wait for it. I remember when sbe left tbe market. I know wby sbe left tbe market. Her bealtb was bad. Sbe couldn’t bold up any longer at tbe market. Sbe bad swollen limbs — ber limbs were greatly swollen — and sbe complained of ber back. That did not always confine ber to ber bed, but sometimes. After sbe left tbe market, sbe lived at ber own borne then. That was not right across the street from' me; that was where Mrs. Sonet lived. Mrs. Sonet was living about two blocks from me, I should say; that is where my mother lived. Sonet and his wife lived with ber; it was her home. I saw ber pretty near every day. After sbe went there — quit tbe market and went there to live — I noticed a change in ber physical and mental condition; sbe didn’t seem tbe same. Sometimes you would go in and I would speak to ber, and sbe wouldn’t hardly speak; she would kind of look up like sbe was surprised, and say: ‘Ob! it is Annie.’ I began to notice that, I would say, four or five years ago, shortly after sbe left tbe market. Her physical condition got worse, and her mental condition got worse. Sometimes I would talk to ber, and she would talk maybe for a few minutes all right, and then sbe would get onto another conversation, and, before sbe would get that finished, it would be something else. With respect to being able to keep ber. eyes open towards tbe last, she could not; sbe was in a stupid condition. Sbe taken morphine or some kind of medicine; I gave it to ber myself. It was some kind of medicine — I don’t know whether it was morphine or not. As to whether 1 beard tbe doctor say something about some medicine that sbe was taking that bad morphine and chloroform in it, I never paid any attention; tbe effect of tbe medicine would make her sleepy, drowsy. As sbe went along from month to month and year after year, with respect to ber mental condition, it got worse. About that time, say three years before ber death, I did have a talk with ber, or sbe with me, about being poisoned. Sbe would sometimes say that my sister bad told ber that I bad poisoned ber, and then again sbe would say sbe was afraid to stay there because sbe was afraid sbe would be poisoned, and I knew that wasn’t so, because I knew my sister wouldn’t do that. As to bow many times sbe stated that to me, sbe would get in conversation; she would always mention something in effect of that kind; In conversation in that respect,, and in other things, sbe was not, in my opinion, sane — of sound mind. I don’t think sbe was, or sbe wouldn’t have said such a thing; sbe seemed to me like ber mind was not what it ought to have been. I say that condition extended over three years before ber death. That condition and that habit of hers of making these statements about being poisoned, that my sister was going to poison her, or that sbe bad poisoned ber, or that I bad poisoned ber, that increased. Sbe was not tbe same woman mentally at this time that sbe was formerly. My mother, in my opinion, was not of sound mind during this period.”

On cross-examination, sbe said: “When 1 rang up Mr. Jones to come over and draw up tbe will, I did not say to Mr. Jones that my mother was of unsound mind, and not mentally able to make a will. I done just what sbe asked me to do. As to my believing at that time that I was going to get a larger share of ber estate than I did get, I thought I would come in equal shares with tbe rest of them. Mother bad always been so kind to me that I couldn’t realize wby I shouldn’t. Of course, it was an awful blow to me. *■ * * I did send for Mr. Jones to come out and draw a will for my mother, having tbe conviction in my mind that sbe was insane, that is true. I wanted to do just what sbe wanted done.”

Several other witnesses for appellees, who were well acquainted with Mrs. Bartels, testified that ber mind was very much affected by her disease, and that sbe was not like sbe was before sbe became afflicted with dropsy; that sbe was absent-minded; and at times, when sbe was engaged in conversation, sbe would suddenly go to sleep or lose consciousness for a few minutes.

Tbe appellee J. W. Milam, after testifying that, in bis opinion, sbe was not of sound mind for three or four years before ber death, and stating that this opinion was based on the fact that sbe could not carry on a conversation for any length of time, that after talking for a few minutes sbe would suddenly become silent, and, when tbe conversation was resumed, sbe would not remember what bad been previously said, further testified: “I say that tbe condition existed as many as four years before ber death at times, not all the time — sbe was not in that condition all tbe time.”

Mrs. Minster, a sister-in-law of Mrs. Bar-tels, who was a witness for appellees, after telling of Mrs. Bartels’ sickness and ber inability during tbe last months of her life to carry on an extended conversation, testified-“Sbe never went crazy; sbe never lost he>" mind and became insane; sbe was OD>y weak- — sbe was weak physically. I could not say sbe bad a weak mind, but you can get so weak that, when anybody talks to you, you will drop off to sleep, and that was tbe result of her physical weakness.” Sbe further testified that, during tbe first half of tbe year 1911, Mrs. Bartels lived at ber bouse for four months, and sbe told witness a half dozen times while sbe was at her bouse that sbe wanted to divide ber property equally among tbe children. • About a week after tbe last will was executed, sbe told this witness that sbe bad made ber will, and made it just like sbe wanted to, like she had previously told witness. At tbe time this conversation occurred, the witness thought the deceased was of sound mind — “she appeared to be of sound mind.”

Dr. Ross, an expert in mental and nervous diseases, testified, in substance, that Bright’s disease often affects the mind of the patient and causes mental delusions; that the disease is a progressive one, and swelling of the feet is one of its symptoms; that, when the limbs begin to swell, it indicates that the poison is being disseminated through the body. This produces edema of the brain cells. The whole body is affected, and sometimes the effect upon the mind is more marked than upon the body. He had never seen the deceased.

Dr. Grimes, a witness for appellees, testified that he made seven professional visits to deceased from September 22 to October 25, 1911, and that, when he first went out there, he found her confined to her bed, and that she had considerable edema, and that she could neither sleep nor get any rest; ' and he stated that she was about in the last stages of Bright’s disease, and that she was affected with dementia. He further stated that, from his observation of Mrs. Bartels during this month he treated her, and from his knowledge of the disease and the course it takes, he was sure she had been so afflicted for perhaps several years; and he further said: “The condition in which I found her indicated the progress of that disease over a series of several years.”

Mrs. Schnauffer, a witness for appellees, testified that at one time Mrs. Bartels’ son Ereddie ran away from home, and that she had seen her kneel under a tree in the back yard that Ereddie had planted and pray for his return, and that she used to sit and study a great deal, and grieve, and that she considered this an indication of unsound mind.

Mrs. Chapman, Mrs. Milam’s daughter, testified that Mrs. Bartels’ memory was very weak about events and things that had taken place, and that she was not, in her opinion, a woman of sound mind during the last three years of her life, and that her reason for this opinion was that she would sit and study, and would nod, and sometimes she Would be very friendly, and again she would not. On cross-examination, she said: “The only symptoms that I saw of any difference in my grandmother’s mind between that and what it had been previously was that she would sit and study, and sometimes, in the midst of my talking to her she would drop off to sleep. There was nothing else.”

Two half-sisters of Mrs. Bartels, who saw her often during the last year of her life, one of them as often as two or three times a week, testified that she was of sound .mind, understood her business, and had no “crazy notions” or delusions that witnesses knew of.

Charles Bartels, who was at one time the husband of deceased, her two sons, Charles and Fred, her daughter Mrs. Sonet, son-in-law, Ed Sonet, and Mrs. Lynch, an intimate friend, all testified that Mrs. Bartels had a good mind up to the day of her death. Mr. and Mrs. Sonet were present when the will of October 14, 1911, was, executed, and both say that she was of sound mind at that time, and fully understood the provisions of the will.

Rev. Mr. Wyndham, who visited her during her last sickness, and saw her a few days before her death, testified: “I never saw anything that would indicate she was not in her right mind when I was with her. She had the appearance of being of sound mind; not that I remember did I ever see her at any time when she appeared to be of unsound mind. I saw her as far back as October, before she died. I think her mental condition then was apparently sound. I officiated at her funeral, buried her. She was buried according to the rites of the Episcopal Church. * * * As to whether it is a fact that any time that I visited her several months before her death she was able to do much talking, not when I would be there; I wouldn’t attempt to talk to her. When I did attempt to talk to her, I noticed on some of the occasions that I was there that she would close her eyes and apparently fall off into an unconscious condition; she did that. Towards her last illness she was in that weakened condition, and didn’t seem to want to talk, and I did not; I just called in. That occurred three or four months before her death; it occurred all the time while X went to see her.”

Mrs. Sabbayrae, a former tenant of Mrs. Bartels, testified she saw Mrs. Bartels the Christmas before she died, and, as far as witness knew, her mind was all right. The witness says: “She was all right when I saw her just before Christmas — I mean her mind. Not that I knew of did I ever see anything about her to indicate that there was anything wrong with her mind.”

Mrs. Leitch, an osteopathic physician, testified as follows: “I was acquainted with Mrs. Julia Bartels in her lifetime. The occasion of my becoming acquainted with her was that I was called to treat her. The first treatment I gave was November 2, 1911. Then after that I treated her every other day, and a few times every day — for a while every day — until the day before her death. Always talked with her during my treatments. From my observation of Mrs. Bar-tels during the time I was treating her, her mind was always in good condition when I was there; never wavered from any subject we were speaking of; in fact, I can’t say, not at any time did I find that her .mind was weakened at all. Her physical trouble was dropsy, caused by a cancerous tumor. That had not in any manner affected her mind.”

Dr. Larendon, who had known Mrs. Bar-tels for 30 years, and had been her family physician for a number of years, testified: “At the time I first visited her, between the 20th. of October and the end of the month, her mental condition was always perfectly normal. She died in January, I think; and I think most every day I was there in the latter part of December and January. If there had been anything about her manner or her appearance or her conversation which would indicate that her mind was in any respect unsound, I would have observed. There was absolutely nothing, in my mind, as to the condition of her mind being wrong in any way; her mind was always good. I am positive her mind was good.”

Mrs. Milam testified, in rebuttal: “I heard Dr. Larendon state that her mind was perfectly clear. I was very much surprised at Dr. Larendon, because I could not get him up close enough to her to feel her pulse. He said she was mad, and he was afraid of her. The statement of the witnesses here that all that day she had her right mind — the day of her death — is not true. She did not recognize me or anybody else that day. Dr. Lar-endon said she had hydrophobia.”

The estate left by Mrs. Bartels was worth $50,000 or $60,000. There is no evidence that she had ever given Mrs. Milam any money, and the latter testified that her mother had never given her money, either before or after her marriage. The undisputed evidence does show, however, that deceased had given Mrs. Milam more property than she had given any of her other children. The evidence further shows that a misunderstanding or disagreement existed at one time between Mrs. Mil-am and her mother, but the evidence justifies the conclusion that the hard feelings between them had ceased to exist some time prior to the making of the wills.

Mrs. Minster, from whose testimony we have before quoted testified: “I really don’t know how many years ago it is that Mrs. Helmke — now Mrs. Milam — got a divorce from her first husband; it is more than 6 or 7, or 8 or & years — fully 12 or 13 years ago, I guess. As to whether there came up hard feelings between Mrs. Helmke and her mother after that divorce suit, I think that must have been the trouble, hard feelings did arise between them about that time, but it didn’t amount to much; she overlooked it all. I think that Mrs. Bartels had concluded to forgive her for whatever wrong she may have done her, but there was hard feelings at that time between them over the divorce.”

Mr. Milam testified that there was no estrangement or difficulty between his wife and her mother, “only a little mythy feeling that only lasted a week or so.”

Mrs. Milam testified, in regard to this matter: “The relations between me and my mother from the time of my second marriage, my marriage to Jim Milam, down to the time of her death was friendly. There was never any estrangement between me and my mother to amount to anything. There wasn’t any estrangement; any family has a little falling out once in a while, but it don’t amount to anything; we were, friendly all the time. The little difficulty I speak of was just because the children went to her, and I wanted them to stay at home. I wanted my children myself, and they had gone to their grandmother, and any other mother would that loved her children. Certainly I had a mother’s feeling for my children, and wanted them back. After they were sent to my mother’s, I visited them there; I visited them at least once a week, and sometimes more; they stayed there a little over a year; they came back to me within a year’s time.”

The undisputed evidence shows that, during the last year of Mrs. Bartels’ life, Mrs. Milam was exceedingly kind and attentive to her. Mr. and Mrs. Milam both testified in regard to the statements made by Mrs. Bar-tels that Mrs. Sonet had told her that Mrs. Milam would poison her; that neither of them believed that Mrs. Sonet had made any such statements to Mrs. Bartels; and that Mrs. Bartels told them, when she repeated to them the alleged statements of Mrs. Sonet, that she did not believe what Mrs. Sonet had told her. Mrs. Sonet denied that she had ever made any such statements to her mother or to any one.

At the time the will of October 14, 1911, was executed, as we have before stated, Mrs. Sonet and her husband were present. They came to visit Mrs. Bartels, as they testify, not knowing that a will was to be executed, or that any visitors were there. When they came into the room and found Mr. Jones reading the will to Mrs. Bartels, they hesitated, but, upon being told that there was no secret, and that their presence was not objectionable, remained. They then learned the contents of the will. While the will was being read, and when it was being signed, Mrs. Sonet sat in a few feet of her mother and was looking at her. She testified that she was looking her mother in the face when she executed the will. The evidence shows that there was bad feeling between Mrs. Sonet and Mrs. Milam, and that, after Mrs. Bartels’ death, Mrs. Sonet on several occasions remarked that she would not give Mrs. Milam 25 cents for what she got under her mother’s will. One of these statements was made in Mrs. Milam’s presence at the cemetery on the day of Mrs. Bartels’ burial, and the statement was repeated several times before the will was produced and its contents disclosed.

We believe the foregoing statement contains the substance of all the testimony adduced upon the trial.

Without discussing the several assignments of error in detail, we are of opinion that the verdict of the jury that the deceased did not have testamentary capacity at the time either of the wills offered for probate was executed is so against the overwhelming weight of the evidence that it clearly indicates that the jury must have been improperly influenced in reaching such conclusion. This does not mean that the jury were conscious of any wrongdoing in finding that Mrs. Bartels did not have sufficient mental capacity to make her will. It is not Improbable that, because of the apparent unfairness in the will in the proportion of the estate bequeathed to Mrs. Milam, the jury concluded that they were authorized to do what they conceived to be justice between the parties. However praiseworthy such motive may have been, the law does not authorize a jury to hold a will invalid merely because it does not appear to be a fair and just distribution of the estate of the testator.

The right of the owner of property to dispose of it by will as he may please is one that is often of great value, especially to those who are old or infirm and dependent upon others for services and attention; and this right should be as jealously guarded as any other property right. Salinas v. Garcia, 135 S. W. 591.

When a will has been executed with the formalities required by the law, it ought not to be set aside merely because the disposition made by the testator of his property is not in accordance with what appears to be justice and fairness to those entitled to his bounty. If in any case, however, it is shown that, at the time of making the will, the testator did not have sufficient mental capacity to understand what he was doing and know the nature and extent of his property and the objects of his bounty, and the disposition made of his property, the will should not be allowed to stand.

If the testimony of Mr. Jones and the subscribing witnesses to these wills is true, there can be no doubt of the fact that Mrs. Bartels fully understood what she was doing when she executed these wills. They were written as she directed, and, when read over to her, she fully understood their contents, and stated that they expressed her wishes. With the exception of Mr. Jones, these witnesses had no interest in the matter, and none of appellant’s witnesses were impeached or attempted to be impeached as unworthy of belief. The testimony of appellees and their witnesses as to the mental capacity of Mrs. Bartels does not necessarily conflict with the testimony of the witnesses to the will and of Mr. Jones. The facts upon which the opinion of the appellees’ witnesses as to the mental capacity of Mrs. Bartels is based do not justify the conclusion that she did not have testamentary capacity at the time either of the wills was executed. It is not shown that the condition of mental weakness, or, to speak more accurately, weariness caused by her bodily affliction, was a continuing condition; but, on the contrary, Mr. Milam expressly states that she was only in that condition at times, and that it did not exist all the time. We think the evidence in the case hardly raises an issue as to the testamentary capacity of Mrs. Bartels on the dates the wills were executed, and the finding of the jury that she did not have sufficient capacity to make the wills is so against the overwhelming weight and preponderance of the evidence that it should not be allowed to stand.

We do not think the evidence raises the issue of undue influence in the execution of the will of'October 14, 1911; nor is there any evidence to sustain the finding that either of the wills in question was the result of an insane delusion on the part of Mrs. Bartels which affected the disposition of her property. Undue influence cannot be predicated alone upon the fact that the will is unfair or unjust in some of its provisions, and for that reason unnatural. There must, in addition to this, be some evidence direct or circumstantial tending to show that some person in whom the deceased imposed confidence and trust, and who was in a position to exercise influence over the mind of the testator, exercised that influence in dictating the disposition of the property made by the will. There is no evidence that any influence was exerted over Mrs. Bartels by any one, nor evidence of any circumstance tending even to show that any one had sufficient influence over her to control or dictate the disposition made by her of her property. Mayes v. Mayes, 159 S. W. 919 Brown v. Mitchell, 75 Tex. 14, 12 S. W. 606; Delgado v. Gonzales, 28 S. W. 459; Wetz v. Schneider, 34 Tex. Civ. App. 201, 78 S. W. 394; Berry v. Brown, 148 S. W. 1117.

The only evidence of any insane delusion on the part of Mrs. Bartels is the testimony as to her statement that Mrs. Sonet had told her that Mrs. Milam would poison her. Mrs. Sonet did not make this statement, and, if Mrs. Bartels believed that she had made such statement, she was under a delusion. But, conceding this to be true, the undisputed evidence is that Mrs. Bartels, whenever she mentioned the matter, stated that she did not believe that Mrs. Milam would poison her, and the fact, which is also shown by the undisputed evidence, that she allowed Mrs. Milam to prepare her meals for her, and always waited for her to prepare and bring her meals to her, conclusively shows that she did not believe the statement in regard to Mrs. Milam. This being so, her delusion as to Mrs. Sonet having made the statement could not possibly have influenced her bequest to Mrs. Milam.

The statement in each of the wills, following the bequest to Mrs. Milam, that “I have previously given her money and property more than I have any other child” is shown to be inaccurate, in so far as the money is concerned, but we do not think that proof of the fact that a testator has made an inaccurate statement in his will in giving his reason for making a bequest is sufficient to show that he was suffering from an “insane delusion,” or to raise such" an issue. The inaccuracy might be due to mistake, or might be intentionally misleading, and we do not think it can be regarded as any evidence of insanity or of an ‘‘insane delusion.”

The assignments complaining of the verdict upon the grounds indicated must be sustained.f

We think the charge of the court instructing the jury that it was incumbent upon the proponent of the will to prove to the satisfaction of the jury that the testator was possessed of testamentary capacity at the time the will was executed should not have been given. The requirement that, before a will can be admitted to probate, the court must be satisfied that the testator was of sound mind only affects the sufficiency of the testimony offered by the proponent when considered by itself, and does not change or modify the rule that a jury, in passing upon conflicting testimony, must decide according to the preponderance of the evidence. As given, the charge' was misleading. Cantine v. Dennis, 37 S. W. 187; Palm v. Chernowsky, 28 Tex. Civ. App. 405, 67 S. W. 166. The question, however, is not properly presented in appellant’s brief, and, for that reason, we would not reverse the case on this ground.

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

Reversed and remanded.


author: McMEANS, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. KENNON et al.
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 24, 1914.)
    1. Pleading (§ 403) — Omissions—Cure by Answer.
    Plaintiff’s decedent, while riding in an ambulance, received fatal injuries in a collision between the ambulance and a railroad train at a crossing. Plaintiff sued the railroad company and the ambulance owner, without alleging that the railroad company was negligent in failing to keep a proper lookout, which allegation, however, was contained in the answer of the ambulance owner. Held, that such allegation in the answer did not cure plaintiff’s failure to so charge so as to entitle her to recover against the railroad company on the theory of its failure to maintain a proper lookout.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1343-1347; Dec. Dig. § 403.]
    2. Railroads (§ 351) — Crossing Accident-Instructions.
    Where, in an action for death of plaintiff’s decedent in a collision between an ambulance, in which he was riding, and a railroad train at a crossing, plaintiff did not allege the omission to keep a proper lookout as negligence on the part of the railroad company, but such omission was pleaded in the answer of the defendant owner of the ambulance, an instruction that the law required those operating trains over crossings in the city to keep such a lookout to avoid injuring persons approaching the crossings as a person of ordinary prudence would keep under similar circumstances, etc., while abstractly correct and properly given on the theory of the defense pleaded by the ambulance owner, should have been so framed as not to apply the principle against the railroad company in favor of plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    3. Trial (§ 194) — Instructions—Weight op Evidence.
    An instruction that the operators of trains over railway tracks across the streets of a city, in approaching crossings, are required to keep such a lookout to avoid injuring persons as a person of ordinary prudence would keep under similar circumstances, taking into consideration the character and extent of the use of the crossings by the public, was not objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Railroads (§ 351) — Crossing Accident-Concurring Cause — Instructions.
    Where plaintiff sued defendant railroad company and the owner of an ambulance for decedent’s death in a collision at a crossing, and the railroad company pleaded and proved that the driver of the ambulance had defective sight, and that this was the cause of the collision, while the ambulance owner claimed that the injury was occasioned by the failure of the train operatives to keep a lookout for persons on the crossing, a request to charge that, if the jury believed that the ambulance driver had defective sight, and that the accident was caused or contributed to thereby, then the railroad company would not be liable was properly refused, as eliminating the effect of a finding that the driver’s defective sight was but a concurring cause, in which event it would not prevent a recovery against the railroad company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.]
    Appeal from District Court, Harris County; Norman G. Kittrell, Judge.
    Action by Matilda Kennon and others against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for plaintiffs, and defendant the Missouri, Kansas & Texas Railway Company of Texas appeals.
    Reversed and remanded.
    Alex S. Coke and A. H. McKnight, both of Dallas, and Lane, Wolters & Storey and W. A. Vinson, all of Houston, for appellant Jones & Jones and Heidingsfelders, all of Houston, for appellees Kennon and Davis. Andrews, Ball & Streetman, of Houston, for appellee Sid Westheimer Co.

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

   McMEANS, J.

Rosa Davis, the widow, and Matilda Kennon, the mother of Lafayette Alvin Davis, deceased, joined by her husband, Nide Kennon, brought this suit against the Missouri, Kansas & Texas Railway Company of Texas, the Houston & Texas Central Railroad Company, and the Sid Westheimer Company to recover damages for the death of the said Lafayette Alvin Davis, who was killed in a collision between an automobile ambulance of the Sid Westheimer Company and a passenger train of the Missouri, Kansas & Texas Railway Company of Texas at Willow street crossing in the city of Houston.

Tlie plaintiffs alleged tliat on July 3, 1911, about 9 o’clock p. m., the decedent, Lafayette Davis, was being transported in an automobile ambulance of the Sid Westheimer Company from the corner of Hill and Glass streets, in the city of Houston, to the Houston Infirmary, he having been injured in a cutting affray; that the ambulance was proceeding along Willow street, which is crossed by the Missouri, Kansas & Texas Railway Company of Texas, the Houston & Texas Central Railroad Company, and other railways, and that, as the ambulance approached the crossing of the Missouri, Kansas & Texas Railway Company, it was struck by a passenger train of that road and was crushed and destroyed, and Lafayette Davis was thrown therefrom and killed.

As to the defendant the Missouri, Kansas & Texas Railway Company of Texas, the grounds of negligence were alleged substantially as follows: That, in approaching the Willow street crossing, the operatives of the train failed to stop said train before crossing the street, and failed to give any warning of the approach of the train by blowing the whistle and ringing the bell; that its employes whose duty it was to warn pedestrians and drivers of vehicles along Willow street of the approach of the trains failed to give any warning to the driver of the ambulance of the approach of the train, and failed to flag or stop the train so as to avert the injury; that they knew the train was approaching at a fast rate of speed, and that it was extra hazardous and dangerous for persons to attempt to cross the railroad track in front of the train; that, if they had given warning of the approach of the train to the driver of the ambulance, or had given the warning signals required by law, the injury would have been averted.

As to the defendant Sid Westheimer Company, the allegations were substantially that the operatives of the ambulance did not manage it with reasonable care and skill, in that while approaching the crossing they were going at a high rate of speed, and did not stop the ambulance, and failed to give any warning to Lafayette Davis of imminent danger, he being inside of the ambulance, and that on account of the carelessness and negligence of the said operatives the ambulance collided with the train, and thus caused the death of Davis.

The defendant railway company answered by a general denial, and specially alleged that at the time of the collision its train was being operated in a careful and skillful manner ; that the usual signals were given as the train approached the crossing; that the bell was being constantly rung, and that the train was being run at a very low rate of speed, and in compliance with the ordinances of the city of Houston; that the operatives did not see the ambulance, and by the use of ordinary care could not have seen it in time to have avoided the collision. It was further alleged that the ambulance was being driven in a careless and reckless manner, at a high rate of speed, and, without any warning to those in charge of the train, dashed into the side of the engine; that the driver of the ambulance was reckless, careless, and incompetent, and in addition thereto his sight was extremely defective, and except for his recklessness and defective sight the collision would not have occurred. It was further alleged that the driver of the ambulance was warned and cautioned of the approach of the train, but disregarded the warnings, and attempted to run his machine across the track in front of the engine, and thereby caused the collision.

The defendant Sid Westheimer Company answered by general denial, and specially pleaded that the accident was not caused by reason of any negligence of its employés, but was caused by the negligence of the defendant the Missouri, Kansas' & Texas Railway Company of Texas. It further answered that the defendant Missouri, Kansas & Texas Railway Company of Texas negligently failed to give the signals required by law as it approached the crossing; that the train was not stopped before reaching the crossing, nor was the same under such control that it could be brought to a stop before cróssing Willow street, nor was it under such control that, in the event of probable injury to vehicles or pedestrians on said Willow street, it could be stopped in time to avert accident or injury; that the operatives of the train were not keeping a proper lookout, and that, after they discovered the approach of the ambulance, and the imminent danger and peril thereof, they failed to use the means at hand to prevent the injury; that the crossing at that place was very much used, and said defendant was negligent in not giving proper notice of the approach of its train.

A trial was had before a jury, and on the close of plaintiffs’ evidence a dismissal was entered as to the Houston & Texas Central Railroad Company, and, proceeding as to the other defendants, the trial resulted in a verdict and judgment for the Sid Westheimer Company and against the Missouri, Kansas & Texas Railway Company of Texas in favor of Matilda Kennon for $1,000, and in favor of Rosa Davis for $500. From this judgment, the railway company has appealed.

The court, in the twenty-ninth paragraph of its general charge, instructed the jury as follows: “Now, bearing in mind the foregoing instructions, the court charges you that, if you believe from the evidence that on the occasion of the occurrence in question the servants of the defendant Missouri, Kansas & Texas Railway Company of Texas engaged in the operation of the train in question were not, in approaching the crossing in question, keeping such lookout as a person of ordinary prudence would have kept under the same or similar circumstances, considering the character and extent of the use of such crossing by the public, and you further believe from the evidence that such failure on their part, if any, was the sole proximate cause of the death of Lafayette Alvin Davis, then and in such event you will let your verdict be in favor of the defendant Sid Westheimer Company.”

In this connection the defendant railway company requested the court to give its third special charge, which reads as follows: “You are instructed that there is no allegation by plaintiffs that the agents of the Missouri, Kansas & Texas Railway Company of Texas in charge of the engine failed to keep a proper lookout for persons on or about to come on the track at the crossing; hence, even if you believe that such agents in charge of the engine at the time of the collision failed to keep such lookout, you cannot find against the Missouri, Kansas & Texas Railway Company of Texas.”

The giving of the charge and the refusal to give the special charge above copied are made the basis of appellant’s first assignment of error.

While the defendant Sid Westheimer Company alleged that the agents of the defendant railway company negligently failed to keep a proper lookout for persons upon or approaching the crossing, no such allegation was made by the plaintiffs. The court’s charge was not of itself erroneous as to the defendant Sid Westheimer Company, for, standing alone, it instructed the jury to find in favor of said defendant, if they believed that the agents of the railway company were not keeping such a lookout as ordinary care required in the circumstances, and that the failure to exercise such care was the proximate cause of the death of the deceased. But, having given this charge, the court, in the state of the pleadings referred to, should have also instructed the jury, in order to avoid any confusion in their minds, that the failure of the agents of the railway company to exercise such care would not of itself authorize a recovery by plaintiffs against the railway company, and, having failed to instruct the jury in the general charge, it should have given the special charge referred to, and the failure to do so is reversible error. .

But appellees, while admitting the absence from their pleadings of any allegation of negligence of the railway company’s agents in failing to keep a proper lookout, contend that, where the defendant railway company affirmatively charged in its answer that its said agents did not see the ambulance, and that by the use of ordinary care they could not have seen it in time to stop the train and avoid the collision, and where the Sid Westheimer Company alleged in its answer in reply to the answer of the defendant railway company that the agents of the railway company operating the engine and train were not keeping a proper lookout, the defect in plaintiffs’ petition due to the absence of such allegation was cured, and that the issue thus formed became available to plaintiffs. This contention is without merit. When the Sid Westheimer Company, in attempting to escape liability to plaintiffs, charged that the damages sued for were caused solely by the negligence of the railway company’s agents in failing to keep a proper lookout, it was alleging its own defense to plaintiffs’ suit, and not a cause of action for plaintiffs, and therefore it was entitled to an instruction, conceding that the evidence authorized it, that, if there was such failure, and that the same was negligence, and was the sole proximate cause of the collision, the Sid Westheimer Company would not be liable; but certainly this defense pleaded by said defendant could not be available to plaintiffs as supplying the omission of such allegation in their petition. Nor do we think that the allegation of the railway company cured the omission of the petition in the regard mentioned. The negative allegation of the railway company that its agents did not see the ambulance, nor by the exercise of ordinary care could they have seen it in time to stop the train and avoid the collision, cannot be looked to to supply the want of any affirmative allegation on the part of plaintiffs as a basis for their cause of action that said defendant was negligent in this respect.

The court, in the twenty-eighth paragraph of its charge, instructed the jury as follows: “The law requires those engaged in operating trains of cars over railway tracks across the streets of a city shall, in approaching such crossings, keep such lookout to avoid injuring persons using such crossings as a person of ordinary prudence would keep under the same or similar circumstances, taking into consideration the character and extent of the use of such crossings by the public.”

This charge is abstractly correct, and was properly given on the theory of the defense pleaded by the Sid Westheimer Company; but we think the court should have so framed its charge as to apply the principle to that defendant’s defense alone, otherwise it was calculated to lead the jury to the erroneous Conclusion that the failure of the railway’s employes to use the care defined was such negligence towards the deceased Davis as entitled plaintiffs to a recovery, when in fact such negligence was not pleaded or relied upon by them.

There is no merit in the further contention under this assignment that the charge is on the weight of the evidence. Railway v. Pendery, 14 Tex. Civ. App. 60, 36 S. W. 794.

Appellant requested the court to charge the jury as follows: “If you believe from the evidence that the driver of the ambulance had defective eyesight, and that the collision was proximately caused or contributed to by or on account of such defective eyesight, you are instructed that the Missouri, Kansas & Texas Railway Company of Texas is not, under sucli circumstances, liable to plaintiffs, and, if you so believe, your verdict should be for the railway company.”

The refusal of the court to give this charge is the ground of the seventh assignment of error.

The appellant pleaded that the collision occurred on account of the defective eyesight of the driver of the ambulance, and on the trial proved that his eyesight was defective. It was shown that the deceased, having been injured, was being conveyed to the Infirmary, and that he was riding in the ambulance under such circumstances and in such position as that the negligence of the driver was not imputable to him. If the driver was solely to blame for the collision, his principal, and not the railway company, should have been held responsible for the consequences that ensued. But, if the defectiveness of the driver’s eyesight was only a concurring cause, that is to say, if the negligence of the Sid Westheimer Company in intrusting the ambulance to a driver with defective eyesight concurred with the negligence of the railway company in any of the particulars alleged by plaintiffs and proved on the trial, the railway company was not thereby exonerated from responsibility to plaintiffs, and the charge requested, having ignored this principle, was properly refused. San Antonio v. Porter, 24 Tex. Civ. App. 444, 59 S. W. 927; Railway v. Sweeney, 14 Tex. Civ. App. 216, 36 S. W. 800; O’Connor v. Andrews, 81 Tex. 28, 16 S. W. 628.

We have carefully examined all of appellant’s assignments of error, and, except as above indicated, none of them presents grounds for reversal.

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

Reversed and remanded.