author: SWEARINGEN, J.

text:
    COTULLA STATE BANK v. HERRON et al.
    (No. 5745.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1916.
    On Motion for Rehearing, Jan. 24, 1917.)
    1. Banks and Banking &wkey;>106 — Authority ok Officeks — Apparent Scope — Liability of Bank.
    Where one deals with an officer or employe of a bank who at the time represents or holds out that he has authority to represent the bank in the business being transacted, and the dealer in good faith and without notice of want of authority believes the act within the apparent scope of authority, he may enforce the contract against the bank, and where a mere clerk temporarily alone in the bank accepted by telephone a cheek on a specific fund and promised payment when presented, the bank was liable to the payee.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 253-256; Dec. Dig. <&wkey;> 106.]
    On Motion for Rehearing.
    2. Banks and Banking, &wkey;>134(4) — Special Deposits — Rights of Bank.
    When a customer makes a special deposit in a bank of funds for the purpose of discharging certain of his liabilities which may be presented for payment, it becomes a deposit which cannot be used by the bank for any other purpose, and is held in the nature of a trust fund, and cannot be used to pay a note due the bank unless so intended at the time of deposit.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 356; Dec. Dig. «&wkey; 134(4).]
    Error from Dimmit County Court; J. O. Rouse, Judge.
    Action by H. A. Herron against the Cotul-la State Bank, the First State Bank of Big Wells, and A. A. Luther. Judgment for plaintiff against all defendants, and the Cotulla State Bank alone brings error. Affirmed. On motion for rehearing.
    Motion overruled.
    John W. Willson, of Cotulla, Thompson & Gulley, of Carrizo Springs, and Williams & Hall, of San Antonio, for plaintiff in error. Yandervoort & Johnson, of Carrizo Springs, for defendants in error.
   SWEARINGEN, J.

H. A. Herron, one of the defendants in error, sued the Cotúlla State Bank, the plaintiff in error, and A. A. Luther and the First State Bank of Big Wells, both the latter being defendants in error, for $500'and interest, being the amount of a cheek drawn by A. A. Luther on the Cotulla State Bank, December 30, 1914, payable to cash or bearer and indorsed by H. A. Herron. Plaintiff below alleged that this check was accepted by the Cotulla State Bank and payment promised, before its delivery to and acceptance by H. A. Herron. Plaintiff in error, the Cotulla State Bank, answered, among other allegations, that the check was not accepted by it; that the party answering for it was not an officer of th.e bank and had no authority to bind the bank to pay the check. Payment of the check was refused by the Cotulla State Bank on January 3, 1915. The case was tried before the court without a jury. Judgment was rendered in favor of H. A. Herron for the amount of the check, with interest, against all the defendants. The Cotulla State Bank alone sued out a writ of error, making all other parties to the suit defendants in error.

The facts are that A. A. Luther made a special deposit of $964 in the State Bank of Cotulla on December 29, 1914, in pursuance of an agreement with the Cotulla State Bank, acting through its president, that the bank would pay out the amount of the deposit to parties whose names were written on a list furnished the bank at the time of the deposit, on which list was also written the amount to be paid to each party named. In accordance with this agreement A. A. Luther, on" December 30, 1914, issued checks to parties named on the list and for the amounts specified on the list. Among others was the check for $500 for I-I. A. Her-ron.

When the $500 check, drawn by A. A. Luther on the Cotulla State Bank, was offered to I-I. A. Herron, he declined it until it could be ascertained that the Cotulla State Bank would accept and pay it. Thereupon the Cotulla State Bank was called by phone from Big Wells. The call was answerd by the Co-tulla State Bank, by Willie Hawkins, who was in solé charge of the bank on that morning of December 31, 1914. The check was described to him, and, after examining the deposit account of A. A. Luther with the Co-tulla State Bank, he accepted the check and promised its payment, acting for the Cotul-la State Bank. Herron thereupon accepted the check in settlement of his debt against Luther and released collateral. The check in due course of business was properly presented to the Cotulla State Bank, which refused payment. A. A. Luther had a balance of $575.39 of the special deposit in the Co-tulla State Bank when the $500 Herron check was accepted and payment promised. The duties of Willie Hawkins were to keep the books of the bank, receive deposits, pay checks, and, during the noon hour or when the president and cashier were absent, as on the morning of the acceptance of the check, to act as sole custodian and manager of the bank during business hours. Her-ron did not know what individual accepted the Herron check for the Cotulla State Bank, nor what limitations there were on his authority.

Appellant’s only assignment is as follows:

“The court erred in rendering judgment on said alleged guaranty of payment of the cheek in question, because such judgment of the court is contrary to the law, for under the evidence in the case showing that Willie Hawkins did the talking for the Cotulla State Bank and the evidence being undisputed that the said Willie Hawkins was a mere clerk and bookkeeper for the Cotulla State Bank, he not being an officer, stockholder, or director of said bank, and having no authority to bind said bank, and that even if the said Willie Hawkins had guaranteed over the telephone to pay the check upon which this suit is brought, said Cotulla State Bank would not be liable for the payment of the said check, said Willie Hawkins having no power or authority to bind said bank.”

This assignment must be overruled because the trial court found, as shown by the judgment rendered, that Willie Hawkins did have authority to bind the bank, to accept the check. This finding is amply supported by the evidence.

The rule of law applicable to the facts of the present case is:

“Where one deals with an officer or employé of the bank, who at the time represents or holds out to such person that they are invested with the authority to represent the bank in the business being transacted, and the dealer in good faith and without any notice of want of authority believes the act is done within the apparent scope of his authority, the party so dealing with such officer may enforce the contract against the bank, and this rule applies to a teller as well as the cashier or to any person or employs in the bank representing himself to the dealer as having authority to represent the bank. The. bank should not be permitted to plead want of authority in its employs while he is engaged in its employment, especially where the loss would fall upon an ignorant person or one having no knowledge whatever of the different rules of law holding and releasing banks upon the principle of notice or want of notice or special or general authority. If a bank places behind its counters an employs who will transcend his authority and insists upon transacting business with the bank’s customers entirely outside his specified duties, such parties dealing with him have the right to assume that he has been delegated to perform such business, and the bank should be held for all his acts.” Magee on Banks and Banking, p. 214; Bank v. Martin, 70 Tex. 643, 8 S. W. 507, 8 Am. St Rep. 632; 7 Corpus Juris, p. 526, § 130.

The judgment is affirmed.

On Motion for Rehearing.

In addition to the grounds appearing in our former opinion for affirming the judgment in the case at bar, there is another which we omitted to develop.

It was pleaded and proven that A. A. Luther had made a special deposit of $904 in the appellant bank, and that at the time of making the special deposit a list was furnished the appellant of the name of each party to be paid and the amount to be paid each of the named parties. On that list was written that $500 of the amount so specially deposited would be checked out to H. A. Herron. It was also proven that after Willie Hawkins, for the bank, had accepted and promised to pay the said check for $500, the bank diverted about $503, the balance of that special deposit of $904, and without authority or notice applied it to the liquidation of a debt due the bank by A. A. Luther. There is evidence that the bank, at the time the special deposit was made, had agreed to extend the time of payment of the-indebtedness from Luther to the bank.

The law applicable to these facts is thus expressed by Magee on Banks & Banking (2d Ed.) p. 475, § 254:

“When a customer makes a special deposit in a bank, of funds for the purpose of paying notes made by him, and which may he from time to time presented to the bank for payment, it becomes a deposit which cannot be used by the bank for any other purpose. Such funds are held by the bank more' in the nature of trust funds and must be applied as directed by the debtor. A special deposit cannot be used to pay a note due the bank unless when the deposit was made it was understood and intended to be used for such purposes.” Stebbins v. Lardner, 2 S. D. 127, 48 N. W. 847; Hall v. Marston, 17 Mass. 575.

The motion for rehearing is overruled.
      <Sx»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    FIDELITY & CASUALTY CO. OF NEW YORK v. HOUSE.
    (No. 1691.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 15, 1916.
    Rehearing Denied Jan. 11, 1917.)
    1. Master and Servant (&wkey;>394 — Workmen’s Compensation Act — Action—Parties.
    Suit for compensation by injured employé is expressly authorized by Vernon’s Sayles’ Ann. Civ. St. 1914, árts. 5246i and 5246yyy, against the company which insures the employer’s liability.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <&wkey;>394.]
    2. Master and Servant &wkey;>416 — Workmen’s Compensation Act — Determination by the Industrial Accident Boaed — Conclusiveness.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246q, providing that all questions arising under the Workmen’s Compensation Act, if not settled, shall, except as otherwise herein provided, be determined by the indu'strial accident board, but that any interested party who is not willing and does not consent to abide by the final ruling and decision of said board may sue on the claim in a competent court, and the board shall proceed no further towards the adjustment of the claim, such board having with the consent of the injured employé decided the claim, its decision is final; and he cannot sue thereon in court.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. &wkey;>416.]
    Appeal from Harrison County Court; Geo. L. Huffman, Judge.
    Action by A. D. House against the Fidelity & Casualty Company of New York. Judgment for, plaintiff, and defendant appeals.
    Reversed and remanded.
    This suit is by appellee to recover of appellant weekly indemnity for 14 weeks from May 20, 1915, alleged to be due him as compensation provided by the act relating to employes’ compensation for injuries sustained in the course of employment. The ap-pellee was, as alleged, in the employment of Marshall Electric Company, .and received an injury in his work which resulted in total disability to perform physical labor. The appellant company, as alleged, issued its policy of insurance in writing to the Marshall Electric Company, and by the terms of said policy it agreed to pay the compensation provided to be paid to the injured employés of the company under and by virtue of the provisions of the act of the Thirty-Third Legislature of Texas authorizing the organization of the Texas Employers’ Insurance Association. It is alleged that appellant did in fact pay to plaintiff a sum of $9 per week, beginning on November 20, 1913, and continuing up to and'including May 20,' 1915, but refused to make further payment. Appellaut answered by demurrer and general denial, and a special plea in substance that the plaintiff had invoked the ruling and judgment of the Industrial Accident Board of Texas upon the merits of claim against the defendant; and that said board had adjudicated same, and the adjudication and judgment were pleaded as a bar. The plaintiff demurred to the defendant’s special plea, and the demurrer was sustained ' by the court. The court overruled the defendant’s demurrer to plaintiff’s- petition. There was a trial before the court without a jury, and judgment was rendered in favor of plaintiff for the amount sued for. In view of the disposition of the case, it is unnecessary to set out the evidence. The record fails to show, it may be stated, the average weekly earnings of the plaintiff with his employer at the time of the accident.
    Marshall Thomas, of Dallas, for appellant. S. P. Jones and T. P. Harte, both of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above). The first assigned error complains of the action of the court in overruling the demurrer to the petition. It is believed that the assignment of error should be overruled.. The law provides that the employe of a subscribing employer shall have no right of action for damages for personal injuries against such subscribing employer, but shall look for compensation solely to the Texas Employers? Insurance Association. Article 5246i, Vernon’s Sayles’ Stat. And “association,” as defined in article 5246yyy, “shall mean the ‘Texas Employes’ (Employers’) Insurance Association’ or any other insurance company authorized under this act to secure the payment of compensation to injured employes or to the beneficiaries of deceased employes.” The law therefore expressly authorizes the suit by the employe against the insurance company, as here. And the terms of the particular policy, as alleged, may not be so construed, it is thought, as to not authorize suit thereon by and in the name of the injured employé of the Marshall Electric Company. Further, that the petition does not affirmatively allege that notice was given of the injury as required by article 5246-ppp would not, it is thought, make -the petition subject to a demurrer; for, assuming, and not deciding, that it was incumbent upon appellee to allege notice, because made by the terms of the act a part of his right of action, the petition alleges such facts as imply a waiver by appellant of such notice.

By the second assignment of error, the appellant contends that the court erred in sustaining the demurrer to its plea, in bar of further recovery by appellee, setting up an alleged final adjudication and judgment upon the claim by the Industrial Accident Board of the state. The pleading avers that appellee invoked the ruling and judgment of the board upon the claim, and that the board heard the evidence and made final ruling and adjudication of the claim. The language, though indefinite is broad enough, it is thought, to fairly show that appellee was willing and consented to have the board exercise the statutory power given them respecting such claims. Therefore the averment may not be regarded as so far failing in sufficiency, as a technical pleading, as to be the subject of a demurrer in that respect. The question of the sufficiency of the pleading 'as such aside, then the further question remains of whether or not the adjudication by the board, as pleaded, is under the statute res adjudicata b.etween the parties disputant. The trial court, it seems to appear, sustained the demurrer upon the ground, in part, that article 5246q of the statute authorized either party interested in the claim to appeal or sue in the courts upon the claim, notwithstanding the parties interested in the claim may have consented that the board finally determine the claim, if dissatisfied with' or unwilling thereafter to abide the final decision of the board upon the claim. This ruling of the court involves a construction of article 5246q, which provides:

“All .questions arising under this act, if not settled by agreement of the parties interested therein, shall, except as otherwise herein provided, be determined by the industrial accident board. Any interested party who is not willing, and does not consent to abide by the final ruling and decision of said board on any disputed claim may sue on such claim or may require suit to be brought thereon in some court of competent jurisdiction, and the board shall proceed no further toward the adjustment of such claim; provided, however, that whenever any * * * suit is brought, the rights and‘liabilities of the parties thereto shall be determined by the provisions of this act, and the suit of the injured employé, or persons suing on account of the death of such employé, shall be against the association, if the employer of such injured or deceased employé is at the time of such injury or death a subscriber, as defined in this act, in which case the recovery shall not exceed the maximum compensation allowed under the provisions of this act, and the court shall determine the issues in such cause instead of said board.”

The language of the article manifests the intention, it is believed, to make the power of the board to finally decide and adjudicate the claim of an injured employé dependent upon the joint consent of the parties interested in the claim. It is not, as plainly appears, intended to make it compulsory upon the parties, without their consent, to have submission of the disputed claim to the board for “the final ruling and decision of said board on any disputed claim” as a substitute for thq remedy by judicial.proceedings; for the article provides that a party interested in the claim, “who is not willing” and who “does not consent” to abide by “the final ruling and decision of said board” in respect to such claim, “may sue on such claim” in the regular courts. Consequently, if the parties disputant are “not willing” and “do not consent” to have the board make the final determination and adjudication of the claim, then, as expressly provided by the article, “the court” shall “instead of said board” make the determination of “the issues in such cause.” But, on the other hand, when the parties interested in the claim are “willing” and do “consent to abide by the final ruling and decision of said board,” then there is implied, and such would be the meaning of the provision, that the “said board” shall instead of “the court” make “the final ruling and decision” of the issues respecting the claim. “The final ruling and decision of said board” that either of the parties interested in the disputed claim may be unwilling and object “to abide by” is made clear by reference to the duties enjoined upon the board. By the terms of article 5246qqq, every employer is required to keep a record of all injuries received by his employés in the course of their employment, and to make written report thereof, within eight days after the occurrence of the injury, to the Industrial Accident Board, stating, among other things, the nature and cause of the injury “and such other information as the board may require.” The making and filing of this compulsory report with the board is contemplated by the act to be the commencement of the summary proceedings, authorized by the act, for compensation for the injury happening to the em-ployé in the course of his employment; and by the receiving and filing of the compulsory report of the injury the jurisdiction of the board attaches, and the board is required to proceed to its adjustment. But providing, as article 5246q does, that the board “shall except as otherwise herein provided” determine ajd questions arising, and further saying that “the board shall proceed no further toward the adjustment of such claim” upon objection of either party “to abide by the final ruling and decision of said board,” would manifest the intention to deprive the board of the power and jurisdiction, after receiving and filing the compulsory report, to proceed any further “toward the adjustment of such claim” upon the objection of either party interested. Thus, depriving the board of the power to proceed any further “toward the adjustment of such claim” after the filing of the compulsory report of the injury, upon objection of either interested party to abide the final decision of the board, would clearly go to show that the right to “sue on such claim” in the courts was intended to be made dependent upon the want of consent or objection of either party to the board’s further acting and making “final ruling and decision” being made or entered before the board in the first instance, before the final ruling and decision is made. So the article manifests the intention, it is believed, and should be construed as providing, that, where there is joint consent of the parties interested in the claim that the board may make the final ruling and decision upon the disputed claim, the board can exercise its power to make the final decision and ruling upon the claim, and, in that event, that then such ruling and decision of the board upon the claim is “final” and an adjudication of a tribunal of last resort for that controversy, and is in legal effect thenceforth res adjudicata between the parties disputant.

In the case of Middleton v. Texas Power & Light Co., 185 S. W. 556, the following language is used:

“The act authorizes appeals from the decisions of the board to the courts, where a jury trial of the matters in dispute, under the law as embodied in the act, may be had.”

It is believed that the learned Chief Justice intended by the language to refer to the parties who did not in the first instance agree to'abide the final ruling and adjudication of the board, and did not intend nor mean to hold that such parties as do consent in the first instance to abide the final ruling of the board are not bound thereafter by the adjudication of the board. The trial eourt erred, it is believed, in sustaining the demurrer.

The assignment of error No. 5 complains of the proof respecting weekly earnings of the plaintiff. It is believed the assignment should be sustained.

It is unnecessary to pass upon the other assignments, and no ruling will be made thereon.

The judgment is reversed, and the cause remanded.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, C. J.

text:
    CITY OF ARANSAS PASS v. USHER et al.
    (No. 5776.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1917.)
    1. Pleading <&wkey;252(2) — Amended Petition--Stjeeicienoy — Reference to Abandoned Pleading.
    Where an amended petition was filed and the original petition discarded, the amended petition was to be tested by its own allegations, and no reference to the abandoned pleading could aid it.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 737½; Dec. Dig. &wkey;252(2).]
    2. Appeal and Ekeob <&wkey;518(4) — Review-Pleading.
    In a suit against a city and others to enjoin the payment of certain city warrants, where an amended petition was filed and the original petition discarded, the court could not be aided by a reference to the original petition where it did not appear on the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2347; Dec. Dig. &wkey;>518(4).]
    Appeal from District Court, San Patricio County; W. W. Walling, Special Judge.'

      Suit for injunction by Linton J. Usber and others against the Gity of Aransas Pass and others. Judgment for plaintiffs, and the City of Aransas Pass appeals.
    Affirmed.
    J. E. Greer, of Aransas Pass, for appellant. W. H. Young, of Aransas Pass, and M. G. Nelson, of Sinton, for appellees.
   PLY, C. J.

This suit was instituted by Linton J. Usher, W. H. Starbuck, and C. P. McAllister against the city of Aransas Pass and the mayor, clerk, and commissioners thereof, the First State Bank, and the Progress Printing Company, probably to obtain writs of injunction and have them perpetuated to prevent the payment of certain city warrants issued by the city to the printing company. The prayer of the petitioners is:

“Wherefore defendants having been cited to appear and answer, and the writs of injunction prayed for in plaintiffs’ original petition having been issued and served on each of the defendants, plaintiffs pray as in their original petition, and for such other and further relief, special and general, in law and in equity, to which they may be entitled.”

When the amended petition was filed, the original petition was discarded, and it had to be tested by its own allegations, and no reference to the abandoned pleading could aid it. However, if this were not the rule, this court could not be aided by the reference, as the original petition does not appear in the record. We can infer that appellees sought a permanent injunction, because the court granted them a judgment making a temporary injunction permanent, although the judgment fails to indicate what is enjoined. This can be ascertained, however, from the temporary writ of injunction which is embodied in the record. The city alone has appealed, but why it should appeal does not appear from anything in the record. Why it should be so solicitous about paying the debt is not shown.

The brief of appellant fails to follow the rules, as to briefing a cause, in' any respect. None of the assignments of error are copied into the record, and no effort is made to present the points raised by it There is no fundamental error.

The judgment is affirmed.
      <g^aPor other cases see same topic and KEY-NUMBHR in all Key-Numbered Digests and Indexes


text:
    BRANHAM et al. v. HALLAM.
    (No. 5751.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 20, 1916.
    Rehearing Denied Jan. 24, 1917.)
    1. Trial &wkey;>350(4, 8) — Special Issue — Issues to be Submitted.
    In an action to recover attorney’s fees, where defendant admitted employing plaintiff to represent her in a partition suit, and the court submitted a special issue as to the value of the services rendered in that suit, a special issue, requested by defendant, as to whether she employed plaintiff in connection with the partition and to recover a portion of her father’s estate, was properly refused as immaterial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 833; Dec. Dig. &wkey;350(4, 8).]
    2. Appeal and Error <&wkey;1062(2) — Harmless Error — Refusal of Special Issues.
    Where an attorney sued for the reasonable value of his services in connection with the partition of property and for other services, defendant admitted the employment for partition, and the court limited recovery to the value of the services rendered in partition, defendant was not prejudiced by the refusal to submit special issues as to other services which the attorney alleged he had rendered:
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. &wkey;> 1062(2).]
    3. Pleading &wkey;>127(2) — Admissions —Services Rendered.
    In suit for attorney’s fees, where the petition alleged that plaintiff was employed by defendants as their attorney to enforce their rights in an estate, to obtain a partition thereof, and to recover their share of the estate, with further allegations as to the nature of the questions involved, and the answer admitted that plaintiff rendered services in connection with the partition of the estate, the services alleged in the petition to have been rendered were the same as those admitted by the answer.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. § 264; Dec. Dig. &wkey;127(2).]
    4. Trial <&wkey;350(4) — Special Issue — Evidence-Attorney’s Fee.
    In a suit for an attorney’s fee, where the only question was the value of the services rendered, the complexity and seriousness of the questions involved in the proceedings in which the services were rendered, which determined the value of the services, were matters of evidence which the jury should not be required by special issue to find.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 829; Dec. Dig. &wkey;350(4).]
    5. Appeal and Error &wkey;>1004(l) — Review-Verdict — Value of Attorney’s Fees.
    The finding of the jury as to the reasonable value of an attorney’s fees in partition suit cannot be disturbed on . appeal, though differing greatly from defendants’ opinion of their value.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944, 3946; Dec. Dig. <&wkey; 1004(1).]
    6. Attorney and Client &wkey;>168 — Compensation of Attorney — Interest.
    In an action to recover the reasonable value of services rendered by an attorney where the services had been completed and demand made for payment which was refused,' plaintiff was entitled to compensation, commonly called interest, for the detention of the money due.
    [E'd. Note. — For other cases, see Attorney and Client, Cent. Dig. § 376; Dec. Dig. &wkey;168.]
    7. Appeal and Error <&wkey;930(3) — Presumptions — Special Issue — Necessity for Request.
    Where neither party requested the submission of a special issue as to the right to interest, it will be presumed that both elected to leave that question to the court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3759; Dec. Dig. <&wkey;>930(3).]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by M. S. Hallam against Mrs. Ruth Branham and another. Judgment- for the plaintiff, and defendants appeal.
    Affirmed.

      Scott & Dodson, of San Antonio, for appellants. T. H. Ridgeway and Arnold, Cozby & Peyton, all of San Antonio, for appellee.
   SWEARINGEN, J.

Tbis is a suit by ap-pellee, M. S. I-Iallam, against appellants, Mrs. Ruth Branham and husband, H. H. Bran-ham, to recover reasonable compensation for services rendered unto appellants in connection with the partition of the estate of Valentine Weiss, valued at $1,500,000. The services were rendered in pursuance of an express employment. Appellants admitted the employment for services in connection with the partition, but averred the value thereof was only $1,500. The cause was tried with a jury, to which was submitted the single issue of the value of the services rendered in connection with the partition. The jury found the value to be $7,750, for which amount judgment was rendered against appellants, with the addition of interest on $7,750 at 6 per cent, from the date after payment was due and refused, August 1, 1914, up to date of the judgment.

Appellee alleged that he was employed by appellants, as their attorney: (1) To enforce and protect the rights of the said Mrs. Ruth Branham in her father’s estate; (2) to obtain a partition thereof; and (3) to recover for her the share or portion of said estate to which she was legally entitled. For the purpose of showing the nature and extent of the services, and consequently the value of same, appellee alleged: That Valentine Weiss died, leaving an estate consisting of real and personal property of the value of $1,500,000; that Valentine Weiss left, surviving him, his son, Percy H. Weiss, and his daughter, Mrs. Ruth Branham, and his second wife, Mrs. Laura Weiss, the stepmother of his two children ; that some of the estate was acquired by Valentine Weiss during his marriage with his first wife, and part of it during his marriage with Mrs. Laura Weiss, the second wife; that property, valued at $97,000 was 'included in the estate, which had been vested in Mrs. Ruth Branham as her portion of the community estate of her deceased mother, but had been conveyed by Mrs. Branham to her father, Valentine Weiss; that the boohs of the estate showed a large sum of money had been received by Mrs. Ruth Branham from her father, charged as advances, but claimed by her as a gift. And, for the same purpose, the said petition further alleges collusion to defraud appellant; and an effort to retain possession of appellant’s property and portion of the estate by virtue of a trust deed; and further alleges a collusion to force appellant to allow an exorbitant value for the life estate of the second wife in one-third of the deceased’s estate.

Appellants, in their second amended answer, deny all of the cause of action alleged, except it is expressly admitted that appellee was employed by them as their attorney in connection with the partition of the estate. The said admission is in the following words:

“Defendants say it is true that plaintiff rendered unto them of Ms time and services in connection with partition of the estate of V. Weiss; that said services were for the benefit of the separate estate of the defendant Ruth Branham, and that defendants are obligated to pay plaintiff a reasonable fee or compensation for the services he so rendered. Defendants say they are entirely willing to justly perform their obligation to plaintiff, but they affirm that plaintiff is not in any event entitled to recover of them or either of them more than $1,500 as reasonable compensation for Ms said services.”

The said answer denies that such services were of the value of $15,000, as alleged by ap-pellee, but avers that the value of said services was not more than $1,500.

There was testimony in proof and disproof of all of appellee’s allegations except those admitted, viz. that appellee was employed and under such employment rendered services as attorney in connection with the partition.

The court, without objection, submitted to the jury the following special issue:

“Question No. 1. What was the reasonable value of the services of the plaintiff, rendered unto the defendants, in connection with the partition of the estate of V. Weiss? State in dollars.”

Upon which issue the jury returned the following verdict:

“Pursuant to the instructions given us in the charge of the court, we, the jury, find from the evidence and make answer to question propounded to us in said charge, as follows, to wit: To question No. 1, we answer: $7,750.00. Seven thousand and seven hundred and fifty dollars.”

The evidence shows the facts, concerning the character and value of the estate, the heirship, and the various interests in the property, substantially as alleged by appellee.

Appellants in the first five assignments urge as error that the court refused to submit to the jury five special instructions requested by appellants.

The requested issues are as follows:

“Did the defendants, or either of them, employ plaintiff as their attorney about the month of January, 1914, to obtain a partition of her father’s estate, .and to recover for her the share or portion of said estate to which she was legally entitled?
“Did the plaintiff, by rendering his services, recover for the defendant Mrs. Ruth Branham the portion of the estate of Valentine Weiss, deceased, to which she was entitled?
“Did Mrs. Laura Weiss, Percy Weiss, and George C. O’Brien claim and insist that the property inherited by the defendant Mrs. Ruth Branham from her deceased mother, which was deeded by said Mrs. Branham to her father, Valentine Weiss, during Ms lifetime, was the absolute property of the estate of said Valentine Weiss, deceased, and a part of the community property of the said Valentine Weiss and Mrs. Laura Weiss, and did they, the said Mrs. Laura Weiss, Percy Weiss, and George O. O’Brien, endeavor to partition the same as if it had been the absolute property of the deceased, Valentine Weiss, and refuse to return said property to the defendant Mrs. Ruth Branham?
“Did Mrs. Laura Weiss and George C. O’Brien refuse to agree to any kind of a partition unless a large sum of money was given Mrs. Laura Weiss for a life estate or interest in tlie estate of Valentine Weiss, deceased?
“Did Mrs. Laura E. Weiss and George O. O’Brien claim and insist that all sums of money that Valentine Weiss, deceased, had given to or expended for the different members of the family, should be considered and treated as advancements, and that they should each pay back into the estate what each had drawn prior to his death, or that such sums of money should be considered in the division of the estate and deductions made from the share of each, according to the amounts drawn respectively?”

The first requested issue was immaterial, and properly refused, because it was admitted that appellee was employed to obtain a partition of the Valentine Weiss estate, which is the first part of the question, and an answer, either yes or no, to the second part, could not affect the verdict in response to the special issue actually given.

The second requested issue is a virtual repetition of the second part of the first question. If appellants’ theory is correct that appellee alleged a different employment from that admitted by appellants, the third, fourth, and fifth requested instructions would probably have been given if appellee had requested them, for, under appellants’ contention, the petition alleged employment for the purpose of resolving the questions therein presented in favor of appellant as well as, and in addition to, the service in connection with the partition, and there was evidence tending to support the issues; but, since the court limited recovery to the services in connection with the partition and thereby eliminated recovery for any other service, we feel sure appellants have no right to complain.

Counsel for appellants havé indulged in an illustration showing familiarity with cattle contracts, which tempts us to illustrate our view of the immateriality of the requested issues to the case at bar.

Counsel say: “Suppose a plaintiff files a suit and alleges that he sold and delivered 100 six year old steers off his ranch to the defendant which were of the reasonable value of $10,000, and suppose that in fact he only delivered 10 four year old steers and that they were reasonably worth but $800, and suppose that the defendant generally and specially denies that he purchased or received the 100 six year old steers worth the $10,000.” (Por the balance of this supposition, we must abandon counsel’s language, •in order to conform to our view of the facts in the present case.) Next, suppose that defendant admits that he received the 10 four year old steers, but they were reasonably worth only $160. And then suppose the court instructed the jury to find the reasonable value of the 10 four year old steers. “Could it be seriously contended,” in the words of counsel, that the court committed error harmful to defendant because it refused to submit to the. jury questions of whether the other 90 head were received by defendant, or whether the other 90 head were six or four years old, or whether they were not delivered on time or in contract condition? The defendant could not complain because the court limited the question to the value of the cattle admittedly received and eliminated all.inquiry about, and liabil-. ity for, the 90 head, the receipt of which defendant denied. On the other hand, if plaintiff pleaded and introduced testimony that he actually delivered to defendant the 100 six year old steers, he would unquestionably have been harmed by the court’s charge limiting the recovery to the reasonable value of 10 four year old steers; but only the plaintiff could complain.

The foregoing illustration is submitted to explain appellants’ theory that appel-lee alleged employment for services distinctly different from those admitted by appellants. In our opinion, the nature of the services alleged by appellee and admitted by appellants are the same, the parties differing only in the appraisement of the value of the same. This wide variation in the estimate of the reasonable value of the services may have grown out of the different views entertained by the respective parties of the seriousness of the complications anticipated or actually involved. The complexity of the questions and their seriousness are merely facts to be considered as evidence by the jury in order to determine the answer to the one controlling issue which was submitted. The jury should not be required to find the evidence. Railway v. Hapgood, 184 S. W. 1075; Railway v. Stevens, 185 S. W. 390; Railway v. Odom, 185 S. W. 626; Ramsey v. Bank, 177 S. W. 209.

There is a wide difference of opinion between appellants and the jury as to the reasonable value of appellee’s services in connection with the partition, but this court is powerless to substitute the opinion of the losing litigant for that of the jury.

The first five assignments are overruled.

The sixth assignment is that the court erred, in that it added interest to the amount of the verdict of the 'jury and rendered judgment' for the sum of the two.

The petition alleges an obligation to pay a reasonable compensation in money for services rendered in connection with the partition of the Valentine Weiss estate. It further alleges that these services were completed when the partition was finished, which was alleged to have been May 20, 1914. The petition further alleges demand for payment and refusal. The petition also prays for the reasonable value of the services rendered and for interest thereon. Under the pleading and evidence appellee had a legal right to receive compensation for the injury inflicted by detaining the amount of money due as reasonable -compensation. This is not really interest, but damages habitually denominated interest. Watkins v. Junker, 90 Tex. 584, 40 S. W. 11.

Had either appellants or appellee requested the submission to the jury of the additional special issue, namely, whether the facts of this ease entitled appellee to interest, that special issue would have been properly given, for this is the character of case where such damage may be allowed. Watkins v. Junker, 90 Tex. 584, 40 S. W. 12.

But no special issue covering this item of damage was requested; it will therefore be presumed that both parties elected to submit that issue to the court itself. Moore v. Pierson, 100 Tex. 113, 94 S. W. 1132.

The sixth assignment is overruled.

The judgment of the court is affirmed.
      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    COCHRAN v. GIBSON et al.
    (No. 1703.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1917.
    Rehearing Denied Jan. 11, 1917.)
    1. Appeal and Error <&wkey;1033(8) — Judgment FAVORABLE TO PARTY COMPLAINING.
    In trespass to try title, where defendant sets up as his sole defense by way of answer that he has a life estate by virtue of contract, and that he made valuable improvements, the jury having found that there was no contract, but having awarded him $50 in money, his sole contention on appeal that the amount awarded was inadequate cannot be sustained, he not having pleaded a right to remove the improvements, and he not being entitled to recover anything in view of the finding as to the contract.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4060; Dec. Dig. <§¿=>1033(8).]
    2. Eminent Domain <&wkey;2(l) — Judgment as Depriving of Property Without Compensation.
    A judgment based on findings duly made cannot be said to deprive of property without compensation.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 3-8; Dec. Dig. <§==>2(1).]
    Appeal from District Court, Harrison County; H. T. Eyttleton, Judge.
    Action of trespass to try title by Gip Gibson and others against Jim Cochran. Judgment for plaintiffs Gibson, and defendant appeals.
    Affirmed.
    This was a suit of trespass to try title, brought by appellees, Gip Gibson and his wife, against appellant. The land sued for was 60 acres of the John Ferguson survey in Harrison county. Appellant’s answer consisted of a plea of not guilty and a plea in which, after disclaiming any claim of title in himself to the fee, he asserted a right to occupy and use 30 acres of the land so long as he lived, by virtue of a verbal contract which, he alleged, he entered into with his brother, P. Y. Cochran, at a time when the latter owned it, and in which he further alleged that, while occupying and using the land in accordance with such contract, he had made permanent improvements thereon, as specified of the value of $1,000. He prayed for judgment against appellees, Gip Gibson and his wife, and said P. Y. Cochran, who had made himself a party plaintiff, in the
    event they were awarded a recovery against him of the possession of the land.
    It was agreed that P. V. Cochran owned the fee in the land prior to October 12, 1915, when he' conveyed it to appellees, Gip Gibson and his wife. The controversy was as to whether appellant owned a life estate in it or not, and, if he did, as to his rights as the owner of such an estate. It appeared that he moved to the land in 1907, and, with his family, thereafterwards lived on it, and was living on it at the time of the trial. He testified:
    “I am using about 15 acres. I am claiming only the land fenced up, which is about 15 acres. He told me to come there and build. He says, ‘Jim, you will have a home as long as you live,’ and if he hadn’t give me that offer I wouldn’t have built there. He told me he had 1,000 acres of land, and ‘You will have all you make as long as you live.’ This was a verbal conversation, and I went on the land and took possession of it and built some improvements. I cleared about 15 acres of land, fenced it, built a dwelling, barn, smokehouse, garden, dug a well, and set out an orchard. It was worth $150 to clear the land, $110 to fence it, $500 to build the dwelling house, barn, $100, smokehouse, $50, garden, $10, and well, $30. I wouldn’t have gone on his or anybody else’s land if I had known I wasn’t getting it for life. * * * Me and Murray and a fellow Pleas [P. V. Cochran] had hired built the [dwelling] house. The lumber in the house came from the Rainey old mill, and I think P. V. Cochran paid for it and gave it to me. I made some of the boards, and don’t know who paid for riving the others. Me and my son hauled them with my wagon and mule and one of Pleas’ mules. The house is 32 feet long by 14 wide, three rooms, and no hall. The house was built of old lumber, and it is rotten down now. The house cost_ me away up yonder towards $50 or $60; paid it to the hardware men up town and first one and another. * * * I have no objection to Gip Gibson and his wife having the place. All I want is pay for my improvements, and that is all I am asking for now. Last fall my brother, Pleas, was talking to me about selling to J. C. Rogers, and I made no objection to it. * * * It was all right with me, the place wasn’t mine. I didn’t think he had any right to sell it without paying me for the improvements, but I didn’t say anything to him about my improvements. I don’t want the land. * * * Some time about October or November Gip Gibson sent me word he wanted the place January 1st. He told me he had bought it and paid cash for it. That was all right if he had paid me a little something for my improvements. * * * If I can get pay for my improvements, I don’t want the land.”'
    Dave Porter testified that about 1910 or 1911 he heard P. V. Cochran tell appellant that “there was the land, he could build and improve it, and he could have it as long as he lived.”
    John Wes Deaton testified that P. V. Cochran told him that he (P. Y. Cochran) had told appellant to “go. on the land and build on it, and he would give him all he made, or he would have a home as long as he lived,” or something like that.
    P. V. Cochran testified:
    “Jim Cochran is my brother, and has lived in Texas since 1901, I think. He lived for three or four years on the Miles place, until Mr. McKay, bought it from under him, and he then moved on my place, sóúie time about the year 1907. He came to me saying he didn’t know what to do, and I told him to move on this place until he could do better. I never did tell him or any other person he could have it for life. I built the house in which he lives. Prank Tow-lin, a boy I had hired, did the work. * * * There was no understanding or mention made between Jim [appellant] and I that he was to have the place for life, or that he was to have any pay for his improvements. I only offered to give him what he made. * * * My brother cleared about 15 acres/'of land, built a little barn, and got a few fruit trees on the place and set them out, and dug a well. I paid for the work on the house, which is about a 16 or 14 by 32 feet. It was an old mill torn down and moved. I moved the house and had it put up. Mr. McKay gave him some overhead ceiling, and Jim put it up. I had an old negro, George Johnson, to make the boards, and I had them hauled to the house. I furnished him stock for two years and made no charge for them. He has never paid anything for the use of the place, and I did not ask him for anything. The rental value of the place would be about $75 per year. I never had any conversation with him in Dave Porter’s presence about letting him have the place, never told John Wes Deaton about letting him have the place, and never heard of any claim until after I sold the place to Gip Gibson.”
    Jim Gibson testified, that it was worth about $8 an acre to clear and fence the land, about $25 each to furnish material and build the two cribs, $12 or $15 to build the smokehouse, $8 to clear and fence the garden, and 50 cents a foot to dig the well, which was 23 feet deep. G. E. Vanderslice testified to about the same effect, and in addition that he saw 12 or 15 fruit trees “around over the place.”
    The court instructed the jury, to find in ap-pellees’ ’favor for the title and possession of the land, to find in appellant’s favor for the value of improvements placed by him on the land, if they believed he made same under a contract that he “should have a life estate in the land,” and to find for him the difference between the reasonable value of the improvements made by him on the land and the reasonable rental value thereof, if they believe there was no such contract, but that appellant lived on the land “from year to year and made thereon valuable improvements.” These instructions were not excepted to, and are not complained of in the assignments of error in appellant’s brief.
    The verdict of the jury was in appellees’ favor for the land, and in appellant’s favor for $50 “for his improvements.” The appeal is from a judgment rendered in accordance with the verdict.
    Martin & Nelson, of Longview, for appellant. JohnW. Scott, of Marshall, and Campbell & Wyche, of Longview, for appellees.
   WILLSON, C. J.

(after stating the facts as above).

The correctness of the judgment is attacked on two grounds alone:

1. That it is contrary to and not supported by the evidence, in that the evidence showed, it is asserted:

“That value of the improvements made by the defendant on said land in controversy to be in and of the sum of $1,000, and not $50 as found by the jury, and the uncontroverted facts show a value of the improvements to be in the sum of $700.”

The contention cannot be sustained. The finding, not complained of, that appellees were entitled to the possession of the land, was a finding against appellant’s claim that he had a right to possess and use it during his life. In other words, it was a finding that he had no such contract as he claimed he had with P. V. Cochran, and that his occupancy of the land was that of a tenant at will only. Lyons v. Railway Co., 209 Pa. 550, 58 Atl. 924. Whether as such a tenant appellant had a right to remove improvements placed by him on the land (Hammond v. Martin, 15 Tex. Civ. App. 570, 40 S. W. 347), or equities entitled to recognition, arising from the circumstances under which he placed improvements on it (Van Zandt v. Brantley, 16 Tex. Civ. App. 420, 42 S. W. 617; Wood v. Cahill, 21 Tex. Civ. App. 38, 50 S. W. 1071), we need not inquire; as such questions were not made by the pleadings and are not presented by the assignments. It follows from this view of the case that the error in the judgment is not that appellant recovered less-than he was entitled to on account of improvements, but that he recovered anything at all on that account, and therefore is one of which he has no right to complain and of which appellees do not complain.

2. The other ground on which the judgment is attacked is that:

It is “contrary to law in this: It is a confiscation of the property of the defendant without compensation.”

That the judgment is not subject to such an objection is clear.

No error of which either of the parties complained appearing in the judgment, it is affirmed.
      <&wkey;>For other eases see same topic and KEY-NUMB13R in all Key-Numbered Digests and Indexes


text:
    BROTHERHOOD OF AMERICAN YEOMEN v. HICKEY.
    (No. 1701.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 29, 1916.
    Rehearing Denied Jan. 11, 1917.)
    1. Insurance <&wkey;819'(2) — Lira Insurance — ■Good Health — Sufficiency oe Evidence.
    In an action on a life policy, evidence held sufficient to sustain finding that insured was in good health at the time of making his application for insurance, as answered by him therein.
    [Ed. Note. — For other cases, see Insurance; Cent. Dig. § 2007; Dec. Dig. <&wkey;>819(2).]
    2. New Trial ¡&wkey;68 — Fraud—Consultation oe Physician — Misrepresentation.
    In an action on a life policy, where the evidence showed that insured consulted a physician before applying for his policy for a slight or temporary ailment respecting his kidneys, which was not of a character or extent of being material to the risk assumed, the court properly overruled insurer’s motion for new trial on the ground that insured falsely and fraudulently stated in his application that he had consulted a physician in the last ten years only for re-mittent fever.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 135-140; Dec. Dig'. &wkey;68.]
    3. Insurance &wkey;>818(4) — Life Insurance — Evidence — Proofs of Death.
    In an action on a life policy written by a fraternal beneficiary association, in the absence of condition in the policy that the proofs of death furnished under its terms should be evidence of the fact on a trial in behalf of the insurer, the court properly excluded from evidence, to show the cause of insured’s death, and as admissions of plaintiff, the certificates of plaintiff, the attending physician, and coroner, furnished the insurer by plaintiff under the terms of the policy, since to make the testimony admissible in such form, rather than in the form of depositions as provided by the statutes, there would have to be an agreement of the parties.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 2003; Dee. Dig. <&wkey;>818(4); Coroners, Cent. Dig. § 28.]
    4. Appear and Error <&wkey;1058(l) — Harmless Error — Evidence.
    In an action on a life policy, where plaintiff testified that insured died of tuberculosis of the lungs on August 10, 1914, the exclusion from evidence of plaintiff’s affidavit furnished insurer as part of the proofs of death, to show the date and cause of insured’s death, was harmless to the insurer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200; Dec. Dig. 1058(1).]
    Appeal from District Court, Harrison County ; H. T. Lyttleton, Judge.
    Action by Mrs. Rhoda J. Hickey against the Brotherhood of American Yeomen. From a judgment for plaintiff, defendant appeals.
    Judgment affirmed.
    The subject of this action is a policy of life insurance made upon the application of Algie B. Hickey, and by it the defendant, an incorporated fraternal beneficiary association, upon certain conditions undertook to pay to the plaintiff, his wife, upon his death the amount provided in the policy. The application, dated June 10, 1911, was a part of the contract, and the answers by the insured were warranted by him to be true. The application recites that the- applicant agrees that the association shall understand that the answers are full, complete, and true, and that any untrue answer, concealment, misrepresentation, or suppression of insured’s condition or habits, past or present, whether believed to be material or not, shall render the certificate of insurance null and void. Among those questions and answers were the following:
    “1. Are you in good health at the present time? Answer: Yes.”
    “8. Have you consulted a physician during the past ten years? Answer: Yes. If so, give name, cause and date of consultation. Answer: Remittent fever; July, 1905. Have you fully recovered? Answer: Yes.”
    “15. Have you ever had any of the following: Consumption? Answer: No. Disease of the genital or urinary‘'organs? Answer: No. Disease of the lungs? Answer: No.”
    “17. Have you had any illness, ailment or injury not herein mentioned? Answer: No.”
    The defendant pleaded as a defense, that those answers were false, untrue, and material, and that the consequence was a breach of the warranty. The answer alleges:
    “That in truth and in fact the plaintiff’s insured herein was not in good health at the time he executed his said application; that he had in the years 1909, 1910, and 1911 before the execution of said application consulted various physicians, who had examined him and found him suffering with tuberculosis; that in truth and in fact he was afflicted with consumption and with disease of the urinary organs; that said false and untrue answers above set out, and each of them, were material to the risk assumed; that, had the defendant association been given true and correct answers to the above questions, the benefit certificate herein sued on would not have been issued.”
    The case was tried before a jury on special issues, and in accordance with their findings of fact judgment was rendered by the court in favor of the plaintiff. Before the trial of the case the defendant filed a written admission, in accordance with the rules, that the plaintiff has a good cause of action as set forth in her petition, except so far as it may be defeated in whole or in part by the facts of the defendant’s answer. The insured died of tuberculosis of the lungs August 10, 1914. The jury made the findings of fact: (1) That A. B. Hickey was in good health on June 10, 1911, the date of his application; (2) that A. B. Hickey was in good health on June 30, 1911, the date his insurance policy was delivered to him; (3) that A. B. Hickey did not have consumption either at the date of his application or at the date of the delivery of his policy to him; (4) that A. B. Hickey did not have any disease of the genital or urinary organs either before or at the date of his application; and (5) that A. B. Hickey did not have any illness or ailment except malaria and smallpox before the date of his application. Further, the following question was submitted: “Did A. B. Hickey consult any physician within the ten years preceding June 10, 1911? If so, who and for what ailment?” And the jury made answer thereto, “Yes, remittent fever.”
    The evidence respecting the issues submitted to the jury is conflicting; and therefore the findings of the jury, having sufficient evidence to support them, are adopted as the facts.
    Lacy & Bramlette, of Longview, R. A. Sexton, of Marshall, and Jno. D. Denison, Jr., of Des Moines, Iowa, for appellant. S. P. Jones, T. P. Harte, and Michael Harold, all of Marshall, for appellee.
   LEVY, J.

(after stating the facts as above). Appellant insists that the trial court should have granted the motion for new trial upon the ground that the weight and pre-ponderanee of the evidence show that the insured at the time of making his application and at the date of the policy had tuberculosis of the lungs and had a disease of the urinary and genital organs and was not in good health as answered by him in his application. As to whether a person is in good health is essentially a question of fact, and in this case the evidence is conflicting as to whether the insured' was in good health at the time of his application. According to the record, a competent physician, as proven, testifies that he examined the insured at the date of his application, and states the manner and mode of the examination. He testifies as follows:

“At the time I examined Hickey, he had none of the following diseases: Bright’s disease, cough, consumption, difficulty in breathing, disease of heart, disease of genital or urinary organs, disease of lungs, irregularity of heart action, pains in chest, pleurisy, palpitation, pneumonia, spitting or coughing of blood. * * * Hickey had no disease at the time I examined him that was disclosed by my examination or otherwise. Yes, on June 10, 1911, at the time I examined him, Hickey was in good health.”

And there was other evidence, by nonex-perts, showing that the insured at the time was in apparent good health; while, on the other hand, there is evidence of competent physicians, as proven, and of others, showing that the insured was not in good health because of symptoms of tuberculosis of the lungs. In view of this conflict of evidence, this court does not feel warranted in holding that the trial court erred in- overruling the motion for new trial upon' this ground.

Appellant makes the further contention that the trial court should have granted a new trial because the insured falsely and fraudulently stated in his application that he had consulted a physician in the last ten years only for remittent fever, when, as shown by the evidence, he had consulted Dr. Robinson within a few weeks prior to his application for a disease of the urinary and genital organs. Dr. Robinson testifies that Mr. Hickey himself “found something wrong with his urine, and he had an idea it was loss of semen and wanted me to give him some medicine.” The physician made a microscopic examination of a sample of insured’s urine, and discovered, as testified, tuberculosis germs, and “reached the conclusion that the kidney was being attacked' by the tuberculosis bacilli.” As to the extent of the trouble, the physician states:

“After straining the urine, there was left a very minute quantity of the substance. It would take gallons of urine to get any amount at all. I hardly got enough from each test to make a strain for a .specimen to place under the microscope. I could not designate the quantity, but it was very minute. * * * The condition of his kidneys at that time must have been mild; that is, the attack must have been mild, judging from the fact that he was able to go about his work. The cells of the kidney were breaking down very slightly. I saw very few cells of the tube of the kidney.”

'Another physician testified that he examined the insured on June 10, 1911, several months after Dr. Robinson did, and that the insured had no disease of the genital or urinary organs. The jury made the finding on this issue that the insured did not have any disease of the genital or urinary organs before June 10, 1911, and on said date. And, if the insured did not have any disease of the genital or urinary organs before June 10, 1911, as found by the jury, then the insured did not misrepresent or conceal his physical condition in that respect. And even though it be true that the insured did consult a physician before June 10, 1911, for some slight or temporary cause or ailment respecting his kidneys, the trial court was authorized to find, in the light of the evidence, as in support of his judgment we must assume he did, that the ailment was not of a character or to the extent of being material to the risk assumed. Article 4834, Vernon's Sayles’ Stat. It is believed the court did not err in overruling the motion for new trial upon the ground urged. The first and second assignments of error are overruled.

The third, fourth, and fifth assignments relate to the admissibility of evidence. The appellant offered in evidence, and the court sustained the objection to the introduction of the proofs of death, the certificates of the plaintiff, the attending physician, and the coroner furnished to the defendant by the plaintiff under the terms of the policy. The evidence was offered for the purpose of showing the cause of the death of the insured, and as admissions of the plaintiff. There is no condition in the policy that the proofs of death furnished under the terms of the policy shall be evidence of the fact in a trial in behalf of the defendant. In order to make the testimony admissible in that form, rather than by the form of depositions as provided by the statutes, there would have to be an agreement of the parties to so use the evidence in that form. The case of Kipp v. Insurance Co., 41 App. Div. 298, 58 N. Y. Supp. 494, cited by appellant, showed an agreement of the parties. In that case the opinion states:

“The policy provided that such proofs should contain answers to each question propounded to the claimant, physicians, and other persons, and that all the contents of such proof should be evidence of the facts therein stated in behalf of the insurance company, but not against it.”

And if the affidavit of plaintiff herself, furnished as a part of the proofs, was an admission, to show the date and cause of the death of the insured, the error in not admitting such affidavit is harmless, for the plaintiff herself testified that the insured died of tuberculosis of the lungs on August 10, 1914.

The judgment is affirmed.
      other eases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

        GzaFov other cases see same topic and KEY-NUM3ER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    CULBERSON COUNTY v. GROVES LUMBER CO.
    (No. 647.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 5, 1917.)
    1. .Mandamus <&wkey;182 — Parties —Members oe County Board.
    In mandamus proceedings to compel the county court to pay a judgment, the individual members of the court are the ones to be affected thereby, and no writ can be issued against them where the proceedings were against the county as such; the citation being served on the county judge as in ether suits against the county.
    [Ed. Note. — For other eases, see Mandamus, Cent. Dig. §§ 405-408, 411, 412; Dec. Dig. &wkey; 182.]
    2. Mandamus &wkey;lll — Final Judgment — Disposition oe Issues.
    In an action by a materialman against a contractor and a county, where the county denied that it had any funds due the contractor as alleged in the petition, a judgment against the contractor and directing the county to pay the amount thereof out of any funds on hand belonging to the contractor did not dispose of the issue as to the amount, if any of .such funds, and was not final, so that it could be paid in accordance with Rev. St. 1911, art. 1368, making it the duty of the county commissioners’ court to pay such judgment in like manner and pro rata as other claims of a similar description, and therefore such judgment could not be enforced by mandamus.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 231, 232, 234; Dec. Dig. &wkey;lll.J
    Appeal from District Court, Culberson •County; Dan M. Jackson, Judge.
    Mandamus by the Groves Lumber Company against Culberson County. From an order granting the writ, defendant appeals.
    Reversed, and suit dismissed.
    W. W. Bridgers and Moore & Harris, all of El Paso, and A. L. Green, of Van Horn,'for appellant Joe Irby, of Van Horn, and J. W. Parker, of Pecos, for appellee.
   WALTHALL, J.

This appeal is taken from an order of the district court of Cul-berson county, granting a writ of mandamus against the county judge and the county commissioners, naming them, composing the county commissioners’ court of Culberson county, directing them, as commissioners, to pay to the Groves Lumber Company, out of the funds of said county then on hand, “whatever amount of money may have been due and was due from said county to E. E. Churchill on the 7th day of October, 1914, to the extent of $1,177.62, together with interest thereon at the rate of 6 per cent, per annum from the 7th day of October, 1914, such payment, however, not to exceed the above said amount,” and directing the clerk of said court to issue said writ commanding the said county judge and commissioners “to immediately pay to the Groves Lumber Company the amount of money as directed by the decree herein set out.”

The history of the case resulting in the order for the writ of mandamus, as shown by the record, is substantially as follows: On September 19, 1914, the Groves Lumber Company filed its petition in the district court of Culberson county, seeking to recover against E. E. Churchill the sum of $1,-177.62, alleging said sum to be a balance due it for material furnished Churchill, and used by him in the construction of the courthouse for said county. The county was made a party defendant to the suit. The petition alleged that the county was liable for the indebtedness because of its knowledge of the contract between the plaintiff, Groves Lumber Company, and Churchill, and because of certain provisions in said contract, to the effect that the lumber company might present for payment to the commissioners’ court its account for material for any amount that might be due it at any time; that said account might be paid by the commissioners’ court and charged to the account of Churchill on his contract, a copy of which contract in writing was presented to the commissioners’ court; that the lumber company presented to said court an account for the said amount and requested payment a's per the terms of said contract; that the court then agreed to pay the account and charge same to Churchill on Churchill’s approval of said account; that Churchill approved the account, but payment was refused by the said court, though the members of the court knew of the purchase of said material by Churchill, at prices stated, and knew at the time that there was sufficient of the courthouse funds out of which the work done and material stated in the account used in the construction of the courthouse could.have been paid. In that suit the county answered by general demurrer and special exception on the ground that the petition showed no privity of contract between the lumber company and the county to pay the account, denied specifically the matters stated in each paragraph of the petition, and denied that the county was indebted in any sum to Churchill. The case was tried by the court without a jury, and judgment rendered for the plaintiff, in part, as follows:

“The court is of the opinion that the said E. E. Churchill is indebted to the plaintiff in the full amount sued for in this cause, and the said Culberson county, by reason of its notice of said account and plaintiff’s contract with defendant, E. E. Churchill, as set forth in plaintiff’s petition, has become and is liable to the plaintiff to the extent of funds it may have in its treasury or in the hands of the county treasurer, or county depository, at this time, that may be due said E. E. Churchill, as alleged in plaintiff’s petition, not to exceed, however, the amount sued for, to wit, $1,177.62. Therefore it is ordered, adjudged, and decreed by the court that the plaintiff, Groves Lumber Company, do have and recover of and from E. E. Churchill in the sum of $1,177.62, together with 6 per cent, interest per annum from this date, and that plaintiff do have and recover of and from Culberson county any and all moneys due said E. E. Churchill by it, or held in its treasury, or in the hands of its treasurer, or county depository, due the said'E. E. ChurchilVát that time, if any there be, as per the agreement and contract set forth in plaintiff’s petition and credit the account 9! said E. E. Churchill with the amount of said judgment (if any there be) on this account with the county.”

On the 15th day of July, 1915, appellee filed its petition in this cause against E. E. Churchill, Culberson county, and the Van Horn State Bank, reciting its former judgment against said Churchill and Culberson county; that Churchill was still indebted to appellant in the full amount of the judgment, and that appellee was still indebted to Churchill in said amount; that the former judgment was never appealed from and was valid and final; that the county had and continuously has had money in its treasury sufficient to pay the amount of said judgment, but that, notwithstanding said decree, the county has at all times refused and still refuses to pay same; that Churchill is insolvent ; that the Van Horn State Bank claims to have acquired some right to said money due from the county to Churchill, and that the county is threatening to pay same to said bank; that, while said judgment is a mandatory decree within itself, the county has ignored same and refused to comply with its terms.

Appellee prayed for a writ of mandamus commanding Culberson county to pay said judgment to appellee. Culberson county, alone, answered. It presented a general demurrer, alleged that it was not informed as to the nature and amount of any indebtedness which Churchill might owe appellant, denied that it has or has had money in its treasury to meet appellant’s claim since the rendition of said judgment, denied that the said judgment decrees or orders appellant to pay to appellee any specific amount of money, denied its indebtedness to Churchill in any amount whatever, and repleaded its answer to the appellee’s original suit, alleged that the judgment upon which this suit is based is not a final judgment and imposes no duty upon it, as it does not determine the issue as to what amount, if any, it is indebted to Churchill or appellee. The case was tried without a jury.

The record discloses that the judgment rendered in the original suit was the only evidence offered on the trial by either party. At the request of counsel that the court make and file findings of fact, the court filed the following:

“(1) On October 7, 1914, when the suit of Groves Lumber Company against E. E. Churchill and Culberson county was tried, I found from the evidence introduced that E. E. Churchill was indebted to -the Groves Lumber Company in the sum of $1,177.62, for materials furnished in the erection of the Culberson county courthouse; the said Churchill being the contractor in charge of said work. The only evidence introduced was evidence tending to show the correctness of said account, and evidence showing that the defendant Culberson County had notice of the terms and conditions of the contract between the Groves Lumber Company and E. E. Churchill. No testimony was introduced to show what amount, if anything, Culberson county was at that time indebted to E. E. Churchill. Upon these facts, I concluded as a matter of law that the Groves Lumber Company had a just claim against E. E. Churchill for $1,177.62, and that, the defendant Culberson county having notice of said contract between the Groves Lumber Company and E. E. Churchill, said county was liable for whatever amount of money it owed E. E. Churchill, or had in its hands or its treasury belonging to said E. E. Churchill at,the time said suit was tried, and thereupon I rendered a judgment as shown by the record in this cause.
“(2) On March 4, 1916, there came on to be heard the petition of the Groves Lumber Company seeking a mandamus to compel Culberson county to pay to said Groves Lumber Company the judgment rendered herein on October 7, 1914. On said hearing, the plaintiff introduced in evidence the judgment rendered in Groves Lumber Company v. E. E. Churchill et al., on October 7, 1914; that said judgment being admitted in evidence over the objection of the defendant Culberson county. No other evidence was introduced by either party.
“I conclude as a matter of law that the judgment rendered by this court on October 7, 1914, in the case of Groves Lumber Company v. E. E. Churchill et al., is a valid, subsisting, and final judgment, and that the plaintiff in mandamus, Groves Lumber Company, is entitled to a writ compelling the defendant Culberson county to pay said judgment according to its tenor and effect.”

The court entered up the following order and judgment, and, after reciting the style of the case, proceeded:

“In the district court of Culberson county, Tex., April term, A. D. 1916. Now, on this, the 4th day of April, A. D. 1916, came on to be heard the petition of the Groves Lumber Company, plaintiff in the above entitled and numbered cause, for mandamus against the commissioners’ court of Culberson county, state of Texas, in which petition a certain judgment rendered by this court is set out, and in which petition it is prayed that said plaintiff be granted a mandamus against said Culberson county, state of Texas, directed to the commissioners’ court of said county, commanding them to satisfy the decree heretofore rendered by this court as aforesaid ; said decree being in substance to the effect that said commissioners’ court pay out of its funds to the plaintiff, to the extent of the amount of the indebtedness due from said county to one E. E. Churchill at the time said judgment was rendered not to exceed the sum of $1,177.62, with interest thereon at the rate of 6 per cent, per annum from the date of said judgment, said judgment being heretofore entered by this court on October 7, 1914, in the above entitled and numbered cause. And it appearing to the court from an inspection of plaintiffs’ said petition, together with the judgment in the above entitled and numbered cause heretofore rendered by this court as aforesaid, that the allegations in said petition for mandamus are all true and correct, and that the said plaintiff is entitled to the writ of mandamus prayed for: It is therefore hereby ordered and decreed that the petition of the plaintiff aforesaid for mandamus against the county aforesaid, be, and the same is hereby granted; and J. C. Hunter, county judge of Culberson county, Tex., and W. D. Garren, R. Durrill, C. M. Tinnin, and W. M. Tatum, commissioners of said county, are hereby directed to pay to the plaintiff in the above entitled and numbered cause, the Groves Lumber Company, a corporation, out of the funds of Culberson county, now on hand, whatever amount of money may have been due and was due from said county to said E. E. Churchill on the 7th day of October, 1914, to the extent of $1,177.62, together with interest thereon at the rate of 6 per cent, per annum from said 7th day of October, A. D. 1914, such payment, however, not to exceed the above said amount.”

The clerk was then directed to issue a writ of mandamus to conform to the court’s order and make return thereon.

Evidently, the object and purpose of appellee, the Groves Lumber Company, in making its application to the district court of Culberson county for a writ of mandamus, was to compel official action on the part of the commissioners’ court of that county to pay the judgment it had theretofore obtained in its suit against Churchill and the county. We think we need not go into a discussion of mandamus as an action or judicial proceeding further than to point out the court, body, and persons on which and on whom the writ in this particular case, when granted, could possibly operate or affect. Appellee, in this, its mandamus action, again sued Cul-berson county, and brought that county into court by directing service of its citation and having its citation served as in ordinary suits upon the county judge. The order, judgment, or decree of the trial court was against the commissioners’ court of that county and against each member of that court, personally naming the county judge and each one of the four commissioners, although no application for mandamus had been sought against the commissioners’ court, nor against them personally as members of that court, nor had any one of them been made a party to the action. A failure or refusal by the county judge and the individual members of the commissioners’ court to obey the order, judgment, or decree of the district court, when such order, judgment, or decree has been properly made, would bring each in contempt of the court’s order, and subject each one personally so failing or refusing to such punishment as the court might see proper to impose and the law permit. The persons on whom the common duty rests to perform the judgment of the court, in an action or proceeding to compel the performance of the duty, most certainly are the ones to be made parties in the action. The writ, when granted, must run singly to the person whose duty it is to perform the act required. In this case, the court in granting the writ directed that it run to the individuals,, naming them, as composing the commissioners’ court; but the record shows that the suit was against the county, and that not one of the persons against whom the writ of mandamus was directed to run was a party to the action. This was error and renders the judgment in mandamus unenforceable.

Again, the judgment in the original cause, as well as the judgment in this, the mandamus branch of it, does not determine the amount, if any, which the county owed Churchill. There is no principle more definitely settled than a judgment, to be final, should dispose of all , the issues. As said by the Supreme Court of this state in Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161, every final judgment should plainly, explicitly, and specifically dispose of every issue in the pleadings. The amount the county owed Churchill was one of the principal issues in the case. The court concluded that the county was liable to plaintiff to the extent of the county funds on hand due Churchill not to exceed $1,177.62, and directed that the county pay to plaintiff all moneys due Churchill by the county at the time of the judgment, if any there be, without determining the amount. Had the judgment been against an individual for which an execution could issue, article 3729, Revised Statutes, requires that the writ “shall correctly describe the judgment, stating the amount” and “shall require the officer to satisfy the judgment out of the property of the debtor.?’ The judgment should be no less specific because against a county, against which execution cannot issue. Article 1368, Revised Statutes, makes it the duty of the county commissioners’ court to settle and pay such judgment in like manner and pro rata as other claims of a similar description are settled and paid by said court; but, unless the judgment has determined and states the amount, the court would not know the county’s liability on the judgment. The judgment is not final, and for that reason, also, the trial court was in error in granting its writ of mandamus directing its payment.

The judgment of the district court in the mandamus suit is reversed and dismissed.
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author: RAINEY, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. et al. v. NICHOLSON et al.
    (No. 7660.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 6, 1917.)
    1. Railroads «&wkey;253 — Blocking Crossing— Damages.
    In action for damages for blocking farm crossing with a train of cars for 8½ days, plaintiffs could recover damages for melons pulled and partly loaded to take to market, and for exposure of oats to rain because they could not be taken up, and for increased expense necessitated in carrying water to stock and in working his crop; there being evidence of such damages.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 732, 733; Dec. Dig. &wkey;253.]
    2. Railroads <&wkey;253 — Blocking Crossing-Damages.
    In such action, the measure of damages was the difference, if any, between the value of the use of the farm during the period of time the crossing was blocked, and the value the use of the farm would have had if there had been no such blockade.
    LEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 732, 733; Dec. Dig. &wkey;253.]
    3. Railroads &wkey;>253 — Blocking Crossing— Duty to Mitigate Damages.
    Where plaintiff’s farm crossing was blockaded by a train for 8½ days, he was not negligent in not preparing a crossing to go around the obstruction, since he could naturally expect the obstruction would be removed at anytime.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 732, 733; Dec. Dig. &wkey;253.]
    Appeal from Dallas County Court; T. A. Work, Judge.
    Action by Joseph Nicholson ánd others against the Chicago, Rock Island & Gulf Railway Company and others. From judgment for plaintiffs, defendants appeal.
    Affirmed.
    Lassiter, Harrison & Rowland, of Ft. Worth, for appellants. George Clifton Edwards and Nat. L. Hardy, both of Dallas, for appellees.
   RAINEY, C. J.

The appellees sued appellant to recover damages caused by the blocking of a private crossing of its track running through appellees’ farm. Appellees’ petition, in effect, alleged that appellant’s track divided the farm, cutting off 23 acres on the south, on which were their house, barns, and well, and on the north 80 acres on which were their oats, cotton, melons, and hogs. The crossing was blocked in July, 1915, for about 8⅛ days with a train of cars, loaded with gravel, which made it impracticable ffor appellees to cross the track with their teams and wagons and cultivators to cultivate the 80 acres and move therefrom the products that were ready for market. The damage alleged was as follows:

“(1) The loss of two loads of melons which had already been pulled and partly loaded to take to market that day; (2) damage by being compelled to leave in the field, exposed to rain that came up during that period, 300 bales of oats, said damage being $105.00; (3) damage by being compelled to carry water to stock during said period, $4.00; (4) and damage by being compelled to use hands instead of horses and plows at a time when every hour’s delay was serious, $100.00.”

It was further alleged:

“That there was no way by which plaintiffs could avoid the damages to which they were subjected,, and that they did all in their power to lessen them; that they made complaint as soon as the crossing was blocked, but that the only answer they got from the railroad company was that they would move the train when they got ready; that this crossing is a private crossing established by defendant when road was built; and that it was then and there the duty of the company to keep it open and passable for plaintiffs.”

Appellant answered by general denial, and specially that appellees were negligent in not lessening the damage which could have been done by proper effort, and with slight expense, and further:

' “This defendant further says that the farm in question was owned by Joseph Nicholson in fee simple before the railroad was built through it; that this defendant company by condemnation proceedings in the county court of Dallas county, Tex., acquired a right of way through said farm; that, after the construction of said railroad, said Joseph Nicholson had, and still has, a private crossing and way for the purpose of passing from one part of his said farm to the other; that, if at any time his said crossing and way should by the act of this defendant railway company or its employes or lessees become obstructed for any unreasonable length of time by cars or other objects, he had the legal right to remove such obstruction himself or make use of the railroad right of way for the purpose of going around or avoiding such obstructions; that, if the crossing was obstructed as claimed, still plaintiffs, with small trouble and trifling expense, could have saved themselves from anything more than merely nominal damages by malting use of the available means and opportunities to obtain access from said farm to their houses and to the public roads leading to the city of Dallas; that if plaintiffs sustained any damage whatever, which this defendant does not admit, the same was wholly unnecessary, and plaintiffs could and should have avoided the same by the use of the means and opportunities above referred to. Hence plaintiffs are not entitled to recover herein.”

The material allegations of the appellees’ petition are supported by the evidence. A trial resulted in a judgment for appellees, from which this appeal is taken.

The first assignment of error presented by appellant is, in effect, that the court failed to instruct the jury as to the proper measure of damages, thereby leaving the jury without any definite guide for arriving at the proper amount of damages. On this subject the court charged the jury as follows:

“If you find and believe from the evidence that the defendants failed to maintain and keep such good and adequate passageway for the use of plaintiff in passing from one part of his farm to the other; and that such failure, if any, to maintain and keep open such good and adequate passageway for the use of plaintiff, was the direct and proximate cause of the loss and damage, if any, that plaintiff suffered in the loss of his melons, if any, and in the decreased' value, if any, of his oats, and in the increased expense, if any, to which he was subjected in carrying water to his stock and in working his crop, then, unless you find for the defendant under another provision of this charge, you will find for the plaintiff such a sum as will compensate him for such loss and damage, if any, that he has suffered, not to exceed the amounts prayed for for each item.”

The petition set out the particular manner as to how appellee’s damages accrued and the amount sustained. The charge correctly pointed out the items of damage for which appellee was entitled to recover under the evidence.

There was no claim by appellee that the farm was permanently damaged; hence there was no error in not charging the jury, as requested by appellant, that the measure of damages “is the difference, if any, between the value of the use of the farm during the period of time the crossing was blocked by ears, and the value that the use of said farm during the same period would have had if such crossing had not been blocked.” The damages alleged by appellee were the injuries caused to farm products by reason of appellee not being able to remove them from the farm, in being put to extra expense in getting water to stock and caring for his oats and working his cotton crop. He was entitled to just compensation for his loss, and the court’s charge afforded a sufficient guide for ascertaining the damage.

The following authorities bear upon and support the rule we have here announced: Baugh v. Railway Co., 80 Tex. 56, 15 S. W. 587; Railway Co. v. Schofield, 72 Tex. 496, 10 S. W. 575; Railway Co. v. Lackey, 12 Tex. Civ. App. 229, 33 S. W. 768.

The contention of appellant is that the evidence shows that appellees were derelict in their efforts to lessen the damage occasioned by the blocking of the crossing. This question was properly submitted to the jury by the charge of the court, and we think the verdict of the jury is supported by the evidence. The appellant in utter disregard of appellees’ right blocked the crossing for the period of 8½ days. Appellees naturally expected the obstruction would be removed upon notice within a reasonable time, or at any time; so anticipating, it could not be expected that they would go to the trouble and expense of preparing a crossing to go around the obstruction. Under all the circumstances of this case, we think appellees were not negligent in not attempting to lessen the damages to their property.

Believing appellant has had a fair trial and that justice has been done, the judgment is affirmed.
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